Bumguardner v. State , 147 Tex. Crim. 188 ( 1944 )

The conviction is for the offense of transporting whisky in a dry area. The punishment assessed is confinement in the county jail for a period of sixty days and a fine of $500.00.

The record discloses that on the afternoon of December 3, 1943, appellant was arrested, handcuffed and taken to the court house by agents of the Texas Liquor Control Board, where a complaint and information were filed and he was immediately taken into court for trial. The judge, upon a plea of guilty, found him guilty and assessed his punishment as above stated. On the following day he secured the services of an attorney, who filed a motion for new trial in which it was charged: First, that the court did not admonish him as to the penalty and the consequences of his plea; second, that he was denied the right of trial by a jury; third, that the officers searched his automobile without a search warrant or probable cause; fourth, that he entered a plea of guilty as a result of fear and mistake, etc. At the hearing of the motion the court heard evidence and at the conclusion thereof overruled the motion, to which appellant excepted and gave notice of appeal. This being a misdemeanor, the court was not required to admonish the appellant of the consequences of his plea as in felony cases. 12 Tex. Jur. p. 635, sec. 297; Burton v. State, 112 Tex. Crim. 334; Johnson v. State, 39 Tex.Crim. R..

In misdemeanor cases, the accused may waive a trial by jury. In this case it appears from the judgment that appellant did so. Hence this court is bound by the recitals in the judgment.

The other matters urged in his motion raised issues of which the court decided adversely to him, and the trial judge's decision on any issue of fact is as binding on this court as the verdict of a jury.

He brings forward one bill of exception in which he claims that the court, on the 16th day of December, 1943, entered a judgment different from that pronounced by him on the 3rd day of December; that this subsequent judgment was entered after he had given notice of appeal and the court had lost jurisdiction of the case. We are not in accord with his contention. The judgment pronounced against appellant on the 3rd day of December was modified on the following day by eliminating that part of the judgment providing that the "sheriff hold the automobile in question, to be disposed of according to law." The judgment was in all other respects left intact and and on the 16th day of December it was entered on the criminal minutes of said court. The pronouncement by the court of the judgment on the 3rd day of December and as modified on the following day before the motion for new trial was overruled and notice of appeal given was the judicial act of the court and the entry of the judgment on the criminal minutes on the 16th day of said month was but a ministerial act. We see no error reflected by the bill.

The judgment of the trial court is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.