Montalvo v. State

272 S.W. 130, 100 Tex. Crim. 560, 1925 Tex. Crim. App. LEXIS 576

• Court: Court of Criminal Appeals of Texas
• Decided: May 6, 1925
• Docket: No. 9422.
• Status: Published

Opinion

HAWKINS, Judge. —

Conviction is for the murder of Remigio Garza. Punishment, 20 years in the penitentiary.

The record is before us without statement of facts or bills of exception. An objection was lodged to the charge because it omitted any instruction on the issue of manslaughter. Without knowing what facts were proven, we are unable to appraise this objection. The explanation of the learned trial judge why he did not charge on “manslaughter” is satisfactory, and will bind this court in the absence of a showing that his reasons are unsupported by the facts.

After adjournment of the term of court at which the conviction occurred, defendant undertook to raise by habeas corpus proceedings the question of a juror’s disqualification. The record on that proceeding is before us without any certificate thereto by the trial judge, and therefore may not be considered. Art. 950, C. C. P.; Ex parte Lozano, 88 Texas Crim. Rep. 112, 225 S. W. Rep. 59. The appeal from the order refusing the writ of habeas corpus is ordered dismissed. (See cases collated under See. 243, Branch’s Ann. Tex. P. C.). This is a matter which cannot be raised for the first time by habeas corpus proceeding after conviction, and even if presented on regular appeal, if the point was not raised until after conviction, it seems to be settled that it will not ordinarily vitiate the verdict. (Authorities under Sec. 550 and 551. Branch’s Ann. Texas P. C., and note 53, p. 381, Vernon’s Crim. Stat. Vol. 2.)

The judgment of conviction is affirmed.

Affirmed.