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COmmiT:The problem that brought this case to the forefront was because of whatthe Legielahire did at the last session regarding bail. Art. 42.09,~ecs. 4 and 5, C.C.P., was amended and it said that if one gets morethan 10 years he -be transferred to T.D.C. even if case on appeal.The Constitutional Amendment, See also Art. 44.04, C.C.P., does notappear to affect thie kind of D; i.e., only if D gets life or ifindicted as a habitual, or accused of a felony and out on bail, oraccused of felony involving use of a deadly weapon with a prior conviction,would this provision be applicable.Art. 44.04, C.C,P., provides that if D gets 15 years or under, thenonly if W finds that D will not appear when conviction becomes finalor if while out on hail D will commit another offense can bail onappeal be denied.Recognizing tbat "On the surface the statutes do appear to be in conflictas to cases where punishment is ooer t ~ years ; and not over 15years," J. Odom, nevertheless, managed to square up all of the statutesand ruled that to deny hail, if 15 years or under, then Art. 44.04,C.C.P., supra, must he complied with.3CA OVERRULES TON OF CASES IN MAYS, K54.200,3/22/78, J. T. Davis, EN BANC, AND RULES ASFOLLOWS: "TO 'ME EXTENT TBAT OURPRIOR OPIMONS HAVE HELD THAT IT WAS JMPROPER TOADNIT TESTMONP FROM A PBOPBRLY QUALIFIED EXPERT WITNESS AS TO THE RELATIVE POSITIONSOF THE PARTIES AT THE TIME OF A HOMICDE UNLESS HE WAS ACTUALLY PRESENT AT THE TIME,THEY ARE HEREBY OVERRULED." "'ME LACK OF PRESENCE AT THE TIME OF THE nmIcmE COBSTO 'ME WEIGHT RATHER TKAN TBE ADMISSIBILITP OF THE EVIDENCE." (Harris County). Mfimed.IF YOU HAVE A BURGLARY CASE, THAT IS PIOICATKD UPON CIRCUMSTANTIAL EVIDENCE, AND YOUWANT TO SEE IF EVIDENCE IS SIJFPICIENT, YOU MIGHT READ THOMPSON, 154,186, 3/22/78, J.Douglas, Panel $2, 1st Quart=. (Kaufman County). (Affirmed). The facts, which axetoo lengthy to he set out here, are rather interesting and had to do with the D comingfrom the CJW's house.AFTER YOU HAVE READ THOMPSON, SUPRA, TBEN GO AND READ GSLBERTSON, #54,124, 3/29/78,J. Phillips, Panel 13, 1st Quarter, WRICH WAS RKVERSED POR INSUPP. WIDENCE. (BrazosCounty).C(IMMENT:In Gilbertson supra, it appears that the police obtained a statementf r W M a d a few conversations with possible Co-Ds, and then shutit down without reading what they had.Held, "While U's statement may possibly indicate same criminal activity,we cannot conclude that the evidence is sufficient tca sustain aconviction for the offense alleged." "D was not in possessionof any property taken in the burglary." "There was no showinghe was in Bryan the night of the burglary." "Further, even ifwe assume D's statement refers to activities on May 30 and 31,there is no evidence those activities occurred at a location closeto ~ ~ i l e Pharmcy." ~ ' s 'We therefore hold the evidence insufficentto the conviction." Reversed.EX PARTE PRIBBLE, 548 (2) 54, EX PARTE HARRELL, 542 (2) H9, AND SABP\ATT 543 (2) 391,RETURN BND GET EX PARTE SEALEY, #57,135, 3/29/78, J. Roberts, P a n e l s t Quarter.PARTIAL HELIEF AS WRIT GRANTED IN PART AND DENIED IN PART.'me Petitioner's first contention is that his mnviction for lmowingly and intentionallypossessing a criminal instruwnt, namely a forged instrument, withintent to use it in tiw commission of obtaining possession of a controlled substance,was illegally obtained as ha should have been prosecuted for forgery.""The dispositiw of this contention is governed [by the above cases]." "Thus,Sec. 32.32 (a) (1) (c), governs over Sec. 16.01."P.J. ONION, IN ABEAKS, $54,302, 3/29/78, Panel 12, 1st Quarter, DISCUSSES CITY OPARXINGTON'S SPEEDING ORDINANCE AND APPEALING CASES FROM MUNICIPAL COURT TO COUNTY COURTTO COURT OF CRIMINAL AF'PEALS. (Tarrant County). (Reversed).
As to the latter, Held: "We hold, therefore, that in misdaeanor cases where themaximum paesible punishment is by fine only, the notice of appeal to the Courtof Criminal Appeals (from the County Court) must be given within ten days afterthe entry of the judgment if no motion$ for new trial are timely filed." "If amotion or mended motion for new trial is timely and properly filed. then noticeof appeal shall be given within ten days after the overruling of the motion ormended motion for new trial." Here, notice of appeal was given timely.WHEN IS JORY MISCONDUCT, WARDING JWORS DISCUSSING PAROLE LAW, REVERSIBLE ERROR?IN B, 153,986, 3/29/78, J. Odm, Panel il2, 1st quarter, with J. Douglas dissentingwith opinion, CCA held: "We conclude from this record that the jury misconductof discussion of the parole law was harmful and denied D a fair and impartial trial.""The discussion was extensive and adversely affected two jurors' consideration of theprobation issue." Reversed. (Randall County).COMMENT:Here, it was undisputed thaf "During deliberations at the punishmentstage of D's trial ate of the jurors, bow ae the colonel, statedthat he had served on court martials and was familiar with the parolesystem." "He told the'jury that if D were given a two-year sentence,he would not have to serve more than 8 [or between 6 and 8 months]before becoming eligibe for parole."STATE ATTWTED TO USE LECWGA, 532 (2) 581, TO SHOOT DOWN THE D. "TheState cites Lechuga, 53-81,far the proposition that 5 years'probation is a greater punishment than 3 years' confinement." "Thatwas not the holding in Lechnga."J. Douglas, whose ability to recall interesting cases is uncanny inmy opinion, dug out the "Shuck" in w, 320 (2) 13, and found a Motionfor Rehearing filed by the Late Great Jim Bowie, which conmined someinteresting comments:(He really would have made a good Editor for S.D.R.).After stating that the D was tried and convicted, it was then statedby the former jud e: "Not desiring to avail himself of the exerciseand friendly atmkphere of ?or Dept. of Corrections, he appealed his easeto the lower court--the Court of Crim. Appeals." "To his surprise, aswell as ours, the case was actually reversed-no kidding." "The saidlower Court fowd through some legal trickerp that a juror during deliberationsstated, "As I Recall, it was mentioned under a 5 yearsentence that he would be eligible for parole--after 1 year and3 months." "The lower court therefore held that Willie Odd1 couldnot be at liberty (as a matter of law) until after he had served 1year and B months; i.e., 20 modtbs, and the juror erred where hestated he could be spmng in U months."After atating that the D was retried, again given 5 years, and againappealed and the appeal was affirmed, then bsst. U.A. Bmie said thatOdeU had come to his @££ice"in good health and good spirits," havingbeen released after serving the 5 year sentence in 13 months and13 days, 6 months and 17 days "less than J. Dice gneseed as a matterof law and some 1 month and 17 days less than the juror figured.""We therefore respectfully request the lower appellate court berevereed and the case against Willie stricken from the South WesternReporter.""lf we are wrong in this regard, will you kindly explain howin the hell Willie got in mp office?"REMEMBER. IF YOUR APPE4L CONCERNS A MOTION, MAKE SURE IT IS IN TBE BECORD ON APPEAL.SEE $57,280, 3/29/78, P.J. 0nim;Panel #2, 1st Quarter. "In the instant easeD claims to have filed a written motian far pretrial hearing on competency, but asearlier observed, there is no written motion in the record." (Ectar County). Affirmed.Held, "We cannot,canclude that the court erred in overruling the motion.""This is particularly true since shortly after such motion was overruledthe D enterad a plea of guilty, represented by the same counsel who had'filed' the mtion."IN TIOM #57,325, 3/29/78, 3. Odom, Panel #2, 1st Quarter, CCARULD THAT THERE-?IS NO BIFURCATED TRIAL AT A PLEA OF G U U ~ T-. THIS D Dm NOT HAVE TAE RIGHTTO CALL WITNESSES AT THE SENTENCING. "RVRN SO, NOWHAT ANY WITS WOULD HAVE TESTIFIED TO." (MCLENNAN COUN~Y). APFIRMED.VOICE for the Defense1 'April 19 78
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