Robinson v. State

Appellant entered a plea of guilty to theft of an automobile over the value of $50, and his punishment was assessed at five years' confinement in the penitentiary, suspended sentence being denied.

Some confusion in dates caused a question to be raised whether the statement of facts and bills of exception were filed in time. It is made to appear that they were filed in proper time and will receive consideration.

Appellant's chief complaint seems to be the claim that he was induced to enter his plea of guilty under an agreement with the assistant county attorney that appellant's application for suspended sentence would not be contested. The bill of exception brings forward complaint that the trial court declined to require the assistant county attorney to comply with the alleged agreement. The bill is peculiar in that incorporated therein is an affidavit of appellant's attorney to the effect that such an agreement was had, and also an affidavit of the assistant county attorney — made part of the bill by the court's qualification — to the effect that the plea of guilty was not induced by any such agreement. To say the least of it, the two affidavits present an issue of fact which this court in its capacity of a reviewing tribunal only will not assume to determine. Both of the affidavits were made long after the trial, hence neither could have been before the trial court when he was called upon to require the assistant county attorney to comply with the claimed agreement. In the absence of anything in the bill showing to the contrary we must presume that when the question came up during the trial the judge investigated the matter and that his ruling thereon was correct. The record reflects that the learned trial judge must have again considered the question of fact involved in passing upon the motion for new trial. Attached to this motion is the same affidavit of appellant's attorney as we find incorporated in the bill of exception. The order overruling the motion recites that the court heard evidence thereon. What such evidence was is not brought forward, hence we must assume that the action of the trial court in overruling the motion was correct, the effect of which order was to determine the question of fact in favor of the state. Delaney v. State,292 S.W. 229, and authorities therein cited. If during the trial serious question had arisen in the court's mind as to whether appellant had been induced to enter his plea of guilty by some promise on the part of the assistant county attorney it would have been the duty of the court to have withdrawn appellant's plea of guilty and entered for him a plea of not guilty, which action would have protected appellant's rights. We must assume the facts before the court did not warrant such action. The eighth bill relates to the same subject considered in bill number one and requires no further consideration.

Appellant brings forward bills of exception three and four each of which complain of the admission of certain, evidence with the recital that he would have objected to the same had he not been relying on the agreement heretofore discussed. No objection having been interposed when the evidence was offered the court was not called upon to rule and this court is in no position to review a question upon which the trial court did not act.

Complaint is found in bill of exception five because the court reporter was permitted, over appellant's objection, to read to the jury the evidence given by appellant while testifying as a witness for the state on the trial of a companion case. Objection to such proceeding was urged on several grounds. The bill is incomplete in failing to incorporate therein the evidence which was admitted over objection. The cases are numerous holding such omission to be fatal to the bill. They are collated in Vernon's Ann. Cr. St. Vol. 2, C. C. P., Art. 667 under Note 31 and in Branch's Ann. Tex. P. C., under Sec. 210.

Upon cross examination of appellant the state asked if he had not been charged with theft and sent to the reformatory in 1922, and if later he was not charged with burglary, being first paroled to his father and mother, and on the second trial received a suspended sentence. Appellant answered that he was tried for both offenses in the county court. The questions are indefinite but indicate that the inquiry was with reference to offenses involving moral turpitude. For impeachment purposes the inquiry was not improper as against objection that the record was the best evidence. Authorities are collated under Sec. 167, Branch's Ann. Tex. P. C. Nothing appearing in the bill support's the objection that the occurrences inquired about were too remote. Further objections were urged that the state's attorney was not properly "quoting the record," and that the trial having occurred in the county court it could not have been upon a charge of burglary. The bill does not purport to bring forward the facts of the transactions inquired about by the county attorney and we are left in a position where we must asume that the ruling of the trial court was correct, the bill not being sufficiently full to show otherwise. Burnett v. State, 73 Tex.Crim. R., 165 S.W. 581.

Appellant offered in evidence the verdict of the jury in the companion case in which appellant had testified and in which the jury recommended a suspended sentence. It was properly excluded. A verdict of another jury had no place in the present trial.

The judgment must be affirmed and it is so ordered.

Affirmed.

ON MOTION FOR REHEARING.