Heath v. State

276 S.W.2d 534, 161 Tex. Crim. 323, 1955 Tex. Crim. App. LEXIS 1403

• Court: Court of Criminal Appeals of Texas
• Decided: February 16, 1955
• Docket: 27402
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is keeping a gambling house; the punishment, 2 years.

The appellant was shown to have a tenant house located approximately 150 yards to the rear of his farm home. At the times involvéd in this prosecution, such house was unoccupied except that one room was used to store feed, seed and farm tools, while another room contained an old dining table, a divan and some chairs. There was no paraphernalia there present designed for the purpose of gambling.

To establish that this house was kept for the purpose of gambling, the state relied upon the following testimony.

Henry Parker testified that for a period of approximately six weeks prior to the date charged in the indictment he had, at the appellant’s invitation, repaired to such house, ordinarily on Friday and Sunday nights, and had there gambled for money with cards with the six or seven men there assembled, including the appellant. He stated that the players came from different towns, some as far away as Fort Worth, and that the games had lasted as long as eight hours.

. Two of appellant’s neighbors testified that they had, for varying lengths of time prior to the date charged in the indictment, on one or two nights a week, observed as many as eight automobiles arrive at appellant’s home about dark and remain there until just before dawn and that while they were there a light could be seen in the tenant house.

Sheriff George and Ranger Roach testified that they had on two occasions, shortly before and on the day charged in the indictment, at night walked across the appellant’s field and looked in the windows of the tenant house and there observed several men, including the appellant, seated at the table playing cards. They stated that money was on the table by the players, and one of the players at one time made the remark, “What do you think about me? I’m two hundred loser”; there was then “some discussion about what they had lost”; and one of the players said, “I’ll bet three.”

The appellant did not testify in his own behalf but offered the testimony of his wife, who told of their marital status and the contents of the tenant house.

It is upon this testimony that this conviction rests. Appellant challenges its sufficiency, his principal contention being that since the witness Parker testified that he came upon invitation this showed that the house was not held open to the public.

While it is true that some of the authorities in defining a gambling house state that it is a. ¿lace wheré péople gather without invitation for the purpose of gambling, we do not think that one might circumvent the law by the simple expediency of extending invitations. •

■ Appellant objected to the testimony of the sheriff and the ranger on the grounds that they were not armed with a search warrant and were, unlawfully upon. his premises.

The state relies upon Crowell v. State, 147 Texas Cr. Rep. 249, 180 S.W. 2d 343, and Eversole v. State, 106 Texas Cr. Rep. 567, 294 S.W. 210. The rule announced in those cases seems to be that if one is foolish enough to leave his windows uncurtained he may not complain if another comes upon his property and observes an illegal act being committed therein. In the Crowell case we discussed the holdings of the Supreme Court of the United States on the question.

Appellant contends that the trial court fell into error when he refused leave to file an amended motion for new trial alleging that one of the jurors who served upon his case was disqualified. An original motion for new trial was filed, overruled, and notice of appeal was given on September 21, 1954; and on the same day sentence was pronounced, and appellant entered into recognizance on appeal. He has since been at liberty under said recognizance. On October 27, within the same term, the appellant filed a motion for permission and leave to file an amended motion but did not ask that his notice of appeal be withdrawn. On October 29 the trial court refused permission to file and stated in his order that he did so because jurisdiction of the case was in this court and not in the trial court.

This situation has often been presented in this court. We quote from two decisions in which it is discussed. In Martin v. State, 153 Texas Cr. Rep. 470; 221 S.W. 2d 605, we said:

“His next complaint relates to the court’s action in declining to permit him to file a motion for a new trial based on newly discovered evidence. He sought to file this motion long after he had given notice of appeal; had entered into a recognizance; and was released from custody under his recognizance. We do not think the court committed error in this respect since appellant did not ask leave to withdraw his notice of appeal and surrender himself to the sheriff. Therefore, under the holding of this court in the following cases there was no error committed by the trial court in declining to permit him to file his motion: Tores v. State, 166 S.W. 523, and Humphries v. State, 186 S.W. 332.”

Soon thereafter, in Hensley v. State, 153 Texas Cr. Rep. 616, 224 S.W. 2d 245, we said:

“The proper procedure herein would have been for the appellant’s attorney to have withdrawn his notice of appeal and thereafter to have requested permission to file and present his motion for a new trial. This he failed to do.”

Finding no reversible error, the judgment of the trial court is affirmed.