White v. State

228 S.W.2d 183, 154 Tex. Crim. 497, 1950 Tex. Crim. App. LEXIS 2121

Opinions

GRAVES, Judge.

Appellant, upon his plea of guilty before the county judge, was given a penalty of a fine of $500.00 and one year in the county jail under a charge of violating the liquor laws of Lubbock County.

He seems to be dissatisfied with his punishment and appeals therefrom.

There is no statement of the facts produced upon the trial, but reliance is had on the facts introduced upon the hearing of the motion for a new trial. It is there shown that on the date alleged in the complaint, two Texas Liquor Control Board agents saw appellant driving at nighttime without any lights in Slaton, in Lubbock County; that they approached him and stopped him; that they asked him what he had, and he said he had a little beer; that they then looked in his car and found therein 24 cases of beer, and one case of whisky and gin. This liquor was taken out of appellant’s car and placed in the car of the officers and taken by them to the mayor’s office. Appel, lant was then allowed to go to his home, but was told to come back the following day. It seems that he presented himself at the mayor’s office the next day, but for some undisclosed reason, he was told to go back home and return the following day, at which time he did return. Slaton is not a county seat, so upon his appearance the following day, an officer took appellant to Lubbock, the county seat; and after conferring with the county attorney, ,a complaint was filed against him charging him as a second offender. Appellant seems to have never been formally arrested, but according to instructions, he reported twice to the authorities in Slaton, and also to them at Lubbock. Two days after he had been found with this liquor, he was filed upon at near noon time. The county judge not being available at such time, he waited until about 2:30 o’clock that afternoon, at which time the judge did appear; and upon appellant’s own volition, he pleaded guilty to such complaint, later contending, however, that he did not know of the allegation of the prior conviction in such court, but expecting a fine of $100.00 and costs, he fortified himself with the possession of $145.00 in cash for the purpose of paying such expected amount.

We find seven bills of exception in the record presented by appellant’s attorney, to each of which said bills the trial court appended a qualification, to which qualification appellant excepted. Thereupon, the court filed his own bills, which are the bills entitled to consideration by this court. The bills contain the requested bills by appellant with the court’s qualification thereto in full, and embrace practically the whole history of this trial and the conclusions of both the appellant’s attorney and the trial court, and carries, among other things, the reasons for action. No bills were taken at the trial, but all actions taken therein are attempted to be reviewed in the motion for a new trial, and all proceedings in the original trial are collated in such motion, and the facts heard therein are presented in each proffered bill of exception.

After the court’s bills are all read, the facts remain that appellant, a 43-year-old Negro, who owned a hotel and cafe in Slaton, as well as other personal property, had heretofore been convicted of a like offense in this same court, and was herein found in possession of the quantity of liquor above set forth; that he admitted such possession, and was released and told to appear at the mayor’s office the next day; that he did so, and was again told to return the following day. He was under no bond nor restraint. He appeared the following day, and in company with an officer, he went to the county seat. A complaint and information were filed, and after a short wait, he was called upon to plead, and he did plead guilty thereto. He had $145.00 in his possession, expecting a fine of $100.00 and costs, but upon being fined more than that amount, with a jail sentence attached, he evidenced dissatisfaction with such penalty.

The only dissatisfaction finally evident herein was the severity of the penalty. There was no denial of guilt, and no denial of the plea, but only the disappointment when he found a more severe penalty than was expected. Appellant’s own testimony shows that he knew of the fact that he might suffer a penalty between the double the lowest penalty and double the highest penalty for a second similar offense. Evidently he relied upon the fact that having previously paid a fine of $100.00 and costs, he would again be thus favored. The county judge, being the arbiter of this case, evidently saw the futility of a minimum fine and exercised his prerogative in assessing a penalty allowed by law.

We think the case of Freeman v. State, 148 Tex. Cr. R. 265, 186 S. W. (2d) 683, is not in point herein, but are impressed with the case of Letterman v. State, 146 Tex. Cr. R. 37, 171 S. W. (2d) 349, as being in accord with the present case; and the reasoning and authorities therein set forth are decisive of this cause.

No error appearing herein, the judgment is affirmed.