Gill v. State

521 S.W.2d 866, 1974 Tex. Crim. App. LEXIS 1948

• Court: Court of Criminal Appeals of Texas
• Decided: November 20, 1974
• Docket: No. 49034
• Status: Published

Opinions

OPINION

ODOM, Judge.

The offense is murder with malice; the punishment, life.

Appellant contends he was denied a reasonable time to present written objections to the charge as guaranteed him by Article 36.14, Vernon’s Ann.C.C.P. The sentence of that article at issue provides:

“Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection.” (Emphasis added.)

Following dictation of his objections to the court reporter, appellant objected to not being allowed to have his objections typed up and filed prior to submission of the charge to the jury, as required by that portion of Article 36.14, quoted above. Appellant’s counsel was fully aware of the consistent holdings of this Court¹ that the second “shall” above quoted is mandatory, and that objections dictated to the court reporter are insufficient to comply therewith. Being aware of this requirement, appellant endeavored to exercise his right under the first “shall,” designed to insure an opportunity to comply with the second “shall.”

It often and heretofore consistently has been held to the detriment of many an appellant that the latter “shall” is mandatory. In Seefurth v. State, 422 S.W.2d 931, referring to Articles 36.14 and 36.15, V.A.C.C.P., this Court in a unanimous opinion stated:

“These articles are ones the Legislature had a right to enact, and are statutes which the Courts can neither ignore nor emasculate .

“These articles are mandatory and there must be strict compliance with their provisions. . . . ”

The first “shall,” designed for the protection of the accused and essential if the accused is to be accorded a reasonable opportunity to comply with the second “shall,” likewise cannot be ignored or emasculated. Both are mandatory and of both we must require strict compliance. Where the Legislature has decreed that an accused be accorded this right, and where this Court has held that upon the balance of the exercise of that right hangs his only chance to challenge the charge or forever be barred, it is essential that a defendant’s timely request to be allowed the exercise of that right be honored.

The State in its brief suggests that appellant was accorded “a reasonable time to examine” the charge. The docket sheet, which is the only reflection in the record of the time elapsed, reads:

“ . . . Court reconvened at 1:00 p. m. Charge was prepared and presented to the Defendant and State’s counsel charge filed and read to the jury. Arguments began at 1:05 p. m. . . . ”

As to what occurred, the record reflects that following appellant’s oral objections he excepted to the court’s suggested stipulation that:

“The aforementioned objections as dictated have been timely filed and to which all parties agree that the same can be typed up at a later date and dated as of this date. . . . ”

and he further requested that his objections be then typed up to conform with the requirements of the Code of Criminal Procedure. While it is true that the trial court has discretion in determining when an appellant has been accorded a “reasonable time,” and it is also true that a defendant will not be permitted to abuse his right to a “reasonable time” by waiting until he has already had sufficient time and then asserting his right to an additional period of “reasonable time,” in the case before us we find no such abuse of the right by appellant, and do find that the court abused its discretion in refusing any reasonable time to appellant to reduce his objections to writing. Such abuse of discretion constitutes a serious deprivation of appellant’s rights and requires reversal.

For the error discussed, the judgment is reversed and the cause remanded.

1 . E. g., Black v. State, 503 S.W.2d 554; Quintanilla v. State, 501 S.W.2d 329; Turner v. State, 497 S.W.2d 593; Ross v. State, 486 S.W.2d 339; Grant v. State, 472 S.W.2d 531; Gonzales v. State, 467 S.W.2d 454; Freeman v. State, 464 S.W.2d 151; Cole v. State, 458 S.W.2d 195; Harris v. State, 457 S.W.2d 903; Hatke v. State, 455 S.W.2d 310; Baity v. State, 455 S.W.2d 305; Thayer v. State, 452 S.W.2d 496; Clark v. State, 445 S.W.2d 516; Walker v. State, 440 S.W.2d 653; Henry v. State, 433 S.W.2d 430; Villarreal v. State, 429 S.W.2d 508; Sockwell v. State, 429 S.W.2d 460.