Scott v. State

754 S.W.2d 268, 1988 Tex. App. LEXIS 1035, 1988 WL 45894
Court of Appeals of Texas·Decided May 12, 1988·No. No. 13-87-261-CR·Published·Cited by 3 cases

Opinion

OPINION

UTTER, Justice.

A jury found appellant guilty of murdering her husband Leslie Wayne Scott and assessed punishment at 75 years in the Texas Department of Corrections. The [270] judgment of the trial court is reformed, and as reformed, affirmed.

Before addressing the points of error raised in appellant’s brief, we will consider her motion to abate the appeal for an out-of-time hearing on her motion for new trial. Appellant’s present counsel contends in the motion that appellant’s trial counsel filed a motion for new trial and then abandoned appellant, thereby allowing the motion for new trial to be overruled by operation of law without presentation to the trial court.

The trial court imposed sentence on March 12, 1987. Trial counsel filed appellant’s motion for new trial on March 18.

Tex.R.App.P. 31 requires an accused to present his motion for new trial to the court within ten days of its filing, unless the trial judge permits it to be presented and heard within 75 days after the date sentence is imposed or suspended in open court.

As noted in McIntire v. State, 698 S.W.2d 652 (Tex.Crim.App.1985), a defendant has a right to file and have heard a motion for new trial, provided the right is asserted within the time specified by law. McIntire, 698 S.W.2d at 660. Appellant did not timely assert her right. The issue ultimately raised by appellant’s request to abate is whether appellant’s right to be heard was lost because of counsel’s ineffectiveness. We decline appellant’s request to determine this matter through abatement for the reasons stated below.

The appellate record was due to be filed by June 22. On that date, the appellate record was filed without a statement of facts. On June 25 present appellate counsel notified this Court that he had entered the case on appellant’s behalf.

A month later, on July 20, counsel filed a motion to extend the time for filing the statement of facts. This Court granted the motion and the statement of facts was filed on August 20, two months after the original due date. Counsel then filed a motion to extend the time for filing the appellant’s brief. This Court granted the motion and the brief was filed on November 20, three months after the statement of facts had been filed. The State filed its brief on December 14.

On December 22, six months after he entered the case, and after both the appellant’s and State’s briefs had been filed, counsel then requested the abatement and late hearing on appellant’s motion for new trial. Ample time passed during which a hearing could have been held without delaying the appellate process.

We are aware of several recent decisions which have abated appeals to determine counsel’s effectiveness in post-trial proceedings. See Crawford v. State, 741 S.W.2d 452 (Tex.Crim.App.1987); Ward v. State, 740 S.W.2d 794 (Tex.Crim.App.1987). Where, however, new counsel allowed, without explanation, six months to elapse between his entry into the case and his request for abatement, where no points of error were brought forward alleging that counsel’s ineffectiveness prevented a hearing on the motion, and where the request did not come until both parties had filed their appellate briefs, we decline to abate the appeal. Appellant’s motion to abate is overruled.

Appellant, in her first four points of error, contends that the first paragraph of the indictment is fundamentally defective. The first paragraph of the indictment alleges, or attempts to allege, capital murder. The second paragraph alleges murder. The third paragraph alleges criminal solicitation.

The State argues that it abandoned the capital murder allegations and proceeded on the second paragraph which alleged murder. The record reflects that prior to the jury voir dire and prior to the indictment being read to the jury it was agreed between the prosecutor for the State and appellant’s trial attorney that the State would abandon the capital murder charge and the case would be tried on the murder and conspiracy charges. In reply to the State’s brief, appellant suggests that the State deleted the allegations of remuneration from the first paragraph but did not abandon the first paragraph. By whatever terminology the parties wish to employ, it is apparent that the second paragraph of [271] the indictment alleges murder, that the case was prosecuted as a murder case, and that the jury was authorized to find appellant guilty under a theory consistent with the allegations in the second paragraph.

Accordingly, any defect in the first paragraph is irrelevant to appellant’s conviction. See Martinez v. State, 742 S.W.2d 687 (Tex.Crim.App.1987); Pannell v. State, 666 S.W.2d 96 (Tex.Crim.App.1984); Luera v. State, 658 S.W.2d 566 (Tex.Crim.App.1981). The first four points of error are overruled.

In his fifth point of error, appellant contends that the first paragraph of the indictment is fundamentally defective because it is fatally repugnant. Appellant, citing Johnson v. State, 149 Tex.Crim.R. 245, 193 S.W.2d 528 (App.1946) and Odle v. State, 139 Tex.Crim.R. 288, 139 S.W.2d 595 (App.1940), contends that the first paragraph of the indictment contains inconsistent allegations. To the extent they conflict with more recent notions of fundamental error, Johnson and Odie were overruled in Green v. State, 578 S.W.2d 411 (Tex.Crim.App.1979). If “repugnancy” can render one paragraph or count in an indictment ineffective, a multi-count indictment would not be void under modem notions of fundamental error because the indictment still alleges a valid offense. We overrule this point for the same reasons as points one through four: the second paragraph alleges an offense which supports the conviction. Appellant’s fifth point is overruled.

We next address appellant’s eighth point of error which challenges the sufficiency of the evidence, since this will put appellant’s remaining points of error in perspective. Specifically, appellant contends that the State failed to adequately corroborate the testimony of Ricci Pozzi, an accomplice witness. The State introduced the following non-accomplice evidence to show appellant’s guilt.

Shortly after 4:00 a.m. on March 6, 1986, a Matagorda County deputy sheriff discovered the body of appellant’s husband, Leslie Wayne Scott near the rear of the Van Vleck Junior High School. Scott’s pickup truck, containing its keys, was parked in a normal manner nearby. The truck was cold when discovered, indicating that it had been there for some time.

White markings on Scott’s tanned body led police to believe that a ring and watch had been removed from the body.

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Scott v. State, 754 S.W.2d 268, 1988 Tex. App. LEXIS 1035, 1988 WL 45894 (Tex. Ct. App. 1988).

754 S.W.2d 268 (Scott v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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