Overstreet v. State

15 S.W.2d 1039, 112 Tex. Crim. 182, 1929 Tex. Crim. App. LEXIS 276

• Court: Court of Criminal Appeals of Texas
• Decided: February 27, 1929
• Docket: No. 11845.
• Status: Published

Opinions

HAWKINS, Judge.

— Appellant was indicted for murder and convicted of aggravated assault and his punishment assessed at a fine of $100.00.

No statement of facts is brought forward.

Appellant presents two questions, one being that a conviction for an aggravated assault could not properly be had under an indictment charging murder under the present definition of that offense. (See Chapter 274, Acts Regular Session 40th Legislature, page 412). The point has been decided against appellant in No. 12312, Clyde Miller v. State, opinion delivered February 20th, 1929, not yet reported.

The judgment entered against appellant provided for the recovery of all costs of the prosecution. The other question raised is that appellant having been tried under an indictment charging murder that no costs could be taxed against him although he was convicted of a misdemeanor. No attack was made on the judgment in the court below, a motion for new trial not even being filed, and the question is raised for the first time here. No complaint is made of any particular item of cost and no information is furnished this court as to the amount of costs taxed, nor in whose favor. The broad proposition is asserted that no costs of any kind could be taxed against appellant under the circumstances. This contention is based largely upon the construction placed by appellant upon Articles 1018 and 1019 C. C. P. Said articles have been -construed in case No. 12259, Ex parte W. T. Hill, opinion delivered this date, but we fail to see their application in the present case.

Chapter IV, Title 15 of the C. C. P. prescribes.the costs to be taxed against a defendant in misdemeanor cases. It is argued that this case is not a misdemeanor case but a felony case because the indictment was for such offense. In view of the fact that appellant was convicted of a misdemeanor he would scarcely agree that such conviction branded him as a felon, deprived him of the right to vote and fixed upon him other civil disabilities attendant upon a felony conviction. Having been convicted of a misdemeanor although put upon trial under a felony indictment certain costs incident to that trial could properly be taxed against appellant. In the absence of a showing to the contrary .we must assume that whatever costs were taxed against him were authorized by the statute.

The judgment is affirmed.

Affirmed.