Rayson v. State , 160 Tex. Crim. 103 ( 1954 )

DAVIDSON, Judge.

Upon appellant’s arraignment in this case it was learned by the trial court that he was indigent and unable to employ counsel to represent him. Thereupon, in obedience to the mandate of Art. 4§4, C. C. P., as well as the due process clause of our State and Federal Constitutions, the trial court appointed J. W. Birdwell, Esq., an attorney of the Palo Pinto County Bar, to represent appellant.

The record affirmatively reflects that the attorney so appointed represented the appellant upon the trial.

After the trial and after notice of appeal had been given, Attorney Birdwell died. The trial court thereupon appointed attorneys J. R. Creighton, Esq., of the Palo Pinto County Bar, Ennis C. Favors, Esq., of the Erath County Bar, and William C. McDonald, Esq., of the Tom Green County Bar, to represent the appellant before this court upon appeal.

Upon appellant’s arraignment and before the jury was selected, he entered a plea of guilty to the accusation.

After the state had introduced its testimony and while testifying as a witness in his own behalf, appellant denied that he was guilty of the crime charged and testified that another person, with whom he was in no manner connected, committed the crime.

Upon such testimony evidencing appellant’s innocence, the trial court withdrew the plea of guilty and, over the objection of appellant, entered a plea of not guilty before the jury.

The case proceeded to final judgment under the plea of not guilty, with appellant being found guilty of murder and the death penalty assessed.

After the plea of not guilty had been entered, no effort was made by the state to re-introduce before the jury, under that plea, the testimony that had been theretofore introduced by the state.

Before The bar of this court at the submission of this case, attorneys for appellant take the position, by brief and oral argument, that the judgment of the trial court failed to affirmatively reflect that the appellant had entered any plea before the jury prior to the plea of not guilty, and that the only plea entered in the case was that of not guilty, which the trial court entered for the appellant.

The judgment of the trial court, as it appeared in the transcript of the record duly certified by the district clerk, corroborated and sustained appellant’s contention.

Counsel for appellant insisted that until the plea of not guilty had been entered, no issue had been drawn before the jury, and that it was incumbent upon the state to re-introduce its testimony before the jury after the plea had been entered, under the authority of Essary v. State, 53 Texas Cr. R. 596, 111 S.W. 927; Johnson v. State, 118 Texas Cr. R. 291, 42 S.W. 2d 782; Gilford v. State, 115 Texas Cr. R. 38, 27 S.W. 2d 169.

When the controversy arose in the presentation of the case before us, state’s counsel insisted that the judgment as it appeared in the transcript was in error and that a correct copy of the judgment which was entered in the case would reflect that the appellant did, after the jury had been empaneled, enter his plea of guilty before the jury — which plea of guilty was thereafter, as pointed out by the trial court, changed to a plea of not guilty.

State’s counsel asked for time within which to have prepared and forwarded to this court a supplemental transcript containing a certified copy of the judgment mentioned. This request we granted.

The clerk of the district court has forwarded to this court a supplemental transcript containing a copy of the judgment which he certifies as correct.

This judgment shows that appellant did enter his plea of guilty before the jury before the introduction of the testimony.

Inasmuch as the predicate upon which appellant relied was not established, his contention is untenable.

Counsel who represented appellant upon the trial of this case made no objection, in so far as is reflected by this record, nor did he take any exception throughout the trial. Consequently, the case is before us without bills of exception.

Our examination of the record is limited, therefore, to errors apparent from the record and of such nature that their consideration would be authorized in the absence of an objection or exception.

It is insisted that such an error is shown in the failure of the trial court to submit to the jury in his charge an instruction covering the law of murder without malice.

Under the provisions of Art. 1257c, V. A. P. C., a trial court is under the duty to charge upon murder without malice “where the facts present” that issue. No necessity arises to charge upon murder without malice if the facts fail to present that issue. Leza v. State, 149 Texas Cr. R. 448, 195 S.W. 2d 552; Tebo v. State, 133 Texas Cr. R. 61, 106 S.W. 2d 712.

The state’s testimony shows a killing for the purpose of robbery by appellant (a hitchhiker) of his benefactor, by shooting him three times with a pistol. After robbing the body, he placed it in the automobile and subsequently dumped it in an out-of-the-way place in an endeavor to hide it. Such facts are shown by the two written confessions of the appellant and supported by an abundance of corroborating facts.

The state’s testimony presents no fact or circumstances which would require a charge upon murder without malice, for all of such testimony shows a deliberate killing, without justification or excuse, committed in the perpetration of robbery.

As a witness in his own behalf, appellant denied that he killed the deceased or that he fired the fatal shots. He said that the deceased was killed by a man whom he did not know and who was a passenger in the automobile with deceased when he was picked up. Appellant admitted being present at the time of the killing, and subsequently assisting in disposing of the body. He denied, however, any connection with the actual shooting or robbery of the body. He denied the truth of the facts stated in the confession and insisted that he signed the confession only because the. officers would not believe his story and that the making of the confession would assist him in his plea for mercy before the jury. He insisted that at the time the murder was committed he was intoxicated and under the influence of intoxicating liquor.

Our holding in the Cassell case, 154 Texas Cr. Rep. 648, 216 S.W. 2d 813, appears to be in point. In that case, the state’s testimony showed a malicious killing, with no extenuating circumstances. The defense was that of alibi. We held that the issue of murder without malice was not raised and that no charge upon that subject was necessary. In reaching that conclusion, we said:

“If he was not present at the time and place of the commission of the alleged offense, he was entitled to an acquittal and not to a charge on the law of murder without malice.”

We see no legal distinction in that case and the instant case. Appellant was either guilty, as he confessed, or he was not guilty, as a principal.

We are constrained to agree that the trial court’s failure to charge upon murder without malice was not error.

Complaint is made of the fact that the trial court, over appellant’s objection, withdrew the plea of guilty and entered for appellant a plea of not guilty.

Appellant insisted that under a plea of guilty before the jury his chance of receiving a punishment less than death was greater than under a plea of not guilty. It is by reason thereof that he claims injury.

When appellant insisted that he was innocent and so testified, the trial court was under the burden of requiring that the testimony be withrawn or of changing the plea of guilty to a plea of not guilty before the jury. Burks v. State, 145 Texas Cr. R. 15, 165 S.W. 2d 460, at page 463.

The appellant made no effort to withdraw the testimony.

In his testimony, appellant made some suggestion that the confessions offered in evidence by the state were not freely and voluntarily made but were the result of fear and mental coercion. We cannot agree, however, that such testimony was sufficient, as a matter of law, to render the confessions inadmissible.

Appellant seeks to raise, here, the question as to the adequacy of the representation that he received at the hands of his appointed counsel, and, in that connection, calls attention to what he asserts were denials of constitutional guarantees as well as errors committed upon the trial to which his counsel should have registered objections.

Appellant insists that failure to so object evidences a lack of ability and experience on the part of his counsel to properly and adequately represent him.

The duty of the trial court, under the mandate of Art. 494, C. C. P., as well as that of due process, to appoint counsel for an accused in a capital case carries the burden of appointing competent counsel — that is, counsel of sufficient ability and experience to represent and defend the accused. 23 C. J. S., Criminal Law, p. 325.

The instant record does not warrant a finding that appointed counsel did not possess the ability and experience referred to in the rule stated.

To those attorneys who, without compensation, have so ably represented appellant in the preparation of the brief and oral argument in this court, we express our deep appreciation.

The record does not reflect reversible error.

The judgment is therefore affirmed.

Opinion approved by the court.