Fluellen v. State

Court of Criminal Appeals of Texas

Fluellen v. State

194 S.W.2d 556, 149 Tex. Crim. 376, 1946 Tex. Crim. App. LEXIS 784

CourtCourt of Criminal Appeals of Texas

DecidedApril 10, 1946

DocketNo. 23311.

StatusPublished

Cited by2 cases

This text of 194 S.W.2d 556 (Fluellen v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fluellen v. State, 194 S.W.2d 556, 149 Tex. Crim. 376, 1946 Tex. Crim. App. LEXIS 784 (Tex. 1946).

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Opinions

KRUEGER, Judge.

Appellant was convicted of the offense of attempting to pass a forged check, and his punishment was assessed at confinement in the state penitentiary for a term of three years.

It appears from the record that appellant, with the consent of the District Attorney and the approval of the court, waived *377 a jury and entered a plea of guilty. The State, introduced evidence which established the appellant’s guilt beyond a reasonable doubt. In addition to the evidence introduced by the State, the appellant, who testified in his own behalf, stated:

“I am twenty-two years old. I went as far as the seventh grade in school. I did this thing that I am charged with — passing or undertaking to pass this check. * * * I pleaded guilty to the charge. I have never been in any kind of trouble before. I have never been arrested before and therefore I would not have been sent to the penitentiary.”

There are no bills of exception in the record. However, in his motion for a new trial he urges four grounds upon which he contends that he was entitled to a new trial, the first of which is that the trial court suggested that an application for a suspended sentence be filed, whereby he was led to believe that the court would favorably entertain such a plea; that thereupon he filed the application as suggested by the court; that as a result of the court’s suggestion he went to trial without witnesses as to his good reputation as a peaceable, law-abiding citizen. His second ground is that the Sheriff of Waller County, who testified to the appellant’s good reputation as a law-abiding citizen, on cross-examination by the District Attorney, testified that he would not recommend a suspension of sentence, to which no objection was interposed. As his third ground, appellant alleges that since the trial, testimony material to the defendant has been discovered in this, that he has learned from his brother that he (appellant) is weak-minded. As his fourth ground, he claims that the evidence is insufficient to sustain the conviction.

A motion based on newly discovered evidence must be sworn to by the appellant. See Branch’s Ann. Tex. P. C., p. 125, sec. 193, also Vernon’s Ann. Tex. C. C. P., Vol. 3, (Art. 756), p. 63 note 11, and 1945 Cumulative Annual Pocket Part, p. 33, note 11, and cases there cited. In the instant case, the motion is not sworn to, nor was there any evidence offered by appellant in support of the allegations contained therein. Consequently, nothing but the insufficiency of the evidence may be considered by us. It is our conclusion that the evidence is ample to sustain the conviction.

We have examined the record very carefully and reached the conclusion that no reversible error appears therefrom.

The judgment of the trial court is affirmed.

*378 The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

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KRUEGER, Judge.

Appellant was convicted of the offense of attempting to pass a forged check, and his punishment was assessed at confinement in the state penitentiary for a term of three years.

It appears from the record that appellant, with the consent of the District Attorney and the approval of the court, waived *377 a jury and entered a plea of guilty. The State, introduced evidence which established the appellant’s guilt beyond a reasonable doubt. In addition to the evidence introduced by the State, the appellant, who testified in his own behalf, stated:

“I am twenty-two years old. I went as far as the seventh grade in school. I did this thing that I am charged with — passing or undertaking to pass this check. * * * I pleaded guilty to the charge. I have never been in any kind of trouble before. I have never been arrested before and therefore I would not have been sent to the penitentiary.”

There are no bills of exception in the record. However, in his motion for a new trial he urges four grounds upon which he contends that he was entitled to a new trial, the first of which is that the trial court suggested that an application for a suspended sentence be filed, whereby he was led to believe that the court would favorably entertain such a plea; that thereupon he filed the application as suggested by the court; that as a result of the court’s suggestion he went to trial without witnesses as to his good reputation as a peaceable, law-abiding citizen. His second ground is that the Sheriff of Waller County, who testified to the appellant’s good reputation as a law-abiding citizen, on cross-examination by the District Attorney, testified that he would not recommend a suspension of sentence, to which no objection was interposed. As his third ground, appellant alleges that since the trial, testimony material to the defendant has been discovered in this, that he has learned from his brother that he (appellant) is weak-minded. As his fourth ground, he claims that the evidence is insufficient to sustain the conviction.

A motion based on newly discovered evidence must be sworn to by the appellant. See Branch’s Ann. Tex. P. C., p. 125, sec. 193, also Vernon’s Ann. Tex. C. C. P., Vol. 3, (Art. 756), p. 63 note 11, and 1945 Cumulative Annual Pocket Part, p. 33, note 11, and cases there cited. In the instant case, the motion is not sworn to, nor was there any evidence offered by appellant in support of the allegations contained therein. Consequently, nothing but the insufficiency of the evidence may be considered by us. It is our conclusion that the evidence is ample to sustain the conviction.

We have examined the record very carefully and reached the conclusion that no reversible error appears therefrom.

The judgment of the trial court is affirmed.

*378 The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

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194 S.W.2d 556, 149 Tex. Crim. 376, 1946 Tex. Crim. App. LEXIS 784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fluellen-v-state-texcrimapp-1946.

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