Williams v. State ( 1977 )

OPINION

DOUGLAS, Judge.

Silton Lee Williams appeals from his conviction for the offense of murder. Trial was before the court and punishment was assessed at ten years.

In his sole ground of error, he contends that the trial court erred in failing to grant his motion for new trial based upon alleged newly discovered evidence.

On February 24, 1975, the judge found Williams guilty and assessed his punishment. The ten days for the filing of a motion for new trial was waived and Williams stated that he wished to be sentenced immediately. On March 4, 1975, through newly obtained counsel, he filed a motion for new trial.

Appellant testified that prior to the date of the instant offense he and his wife had had frequent marital difficulties. He stated that at approximately 2:30 or 3:00 p. m. on the date of the offense he had gone to his sister-in-law’s house to speak to his wife. She had been staying there with their five children since their most recent separation. He made two trips to get the children, and when he returned she again refused to let him have the children and an argument ensued. As he started to leave, she stepped in front of his car on the passenger side. He stopped the car, got out and, as he was walking around the rear to the front, she fired a shot at him. Williams stated that he returned the fire and as she was lying on her side he kicked the gun out of her hand. Three of the four shots fired were fired into her back. He had his aunt call the police and was later arrested at his residence. When officers arrived he said, “The gun is in my pocket.”

The motion for new trial was filed after the date of sentencing and should not have been considered by the trial court. Roberts v. State, 493 S.W.2d 849 (Tex.Cr.App.1973). The record contains no motion to set aside the sentence.

In Bennett v. State, 450 S.W.2d 652 (Tex.Cr.App.1969), this Court wrote:

“The defendant having waived the time to file motion for new trial, and sentence having been pronounced, the trial court was under no obligation to permit the motion for new trial to be filed. Bedell v. State, Tex.Cr.App., 443 S.W.2d 850.”

In that case the sentence was pronounced September 17, 1968 and notice of appeal was given on September 27, 1968. A motion for new trial was filed alleging receipt of the testimony in jury misconduct. The court heard evidence on the motion for new trial in that case. See also Heath v. State, 161 Tex.Cr.R. 323, 276 S.W.2d 534 (1955), which held that the trial court did not err in refusing to permit the filing of a motion for new trial when he did not ask that the notice of appeal be withdrawn.

The evidence introduced at the hearing on the motion for new trial is not properly before us for our consideration. Boykin v. State, 516 S.W.2d 946 (Tex.Cr.App.1974); Roberts v. State, supra. In our recent decision in Sims v. State, 546 S.W.2d 296 (Tex.Cr.App.1977), we held that the evidence presented at the hearing on an untimely motion for new trial would be treated as an informal bill of exception. Sims v. State, supra, is contrary to nearly all decisions on the question. Sims overruled by implication Boykin cited above and countless other decisions of this Court. We overrule Sims. The evidence at the hearing on the motion for new trial is not properly before us.

Even if we were to consider the evidence heard on the motion, no reversible error would be shown. The testimony adduced was from a ten-year-old son of appellant who was at the house at the time of the shooting. An accused may not secure a new trial by the stratagem of failing to call a witness whose identity and knowledge of his case were known or by the exercise of reasonable diligence might have been known prior to trial. Waddell v. State, 503 S.W.2d 570 (Tex.Cr.App.1974). Assuming there was diligence, no abuse of discretion was shown. It should be remembered that this was a trial before the judge without a jury. He no doubt decided that the alleged new evidence would not have caused him to reach a different result.

No reversible error having been shown, the judgment is affirmed.