holding probable cause for warrantless arrest existed after victim described burglar to police, whose description was relayed to dispatcher, who broadcast it to arresting officer, who located and arrested man fitting description nearby
How later courts described this case
- holding probable cause for warrantless arrest existed after victim described burglar to police, whose description was relayed to dispatcher, who broadcast it to arresting officer, who located and arrested man fitting description nearby
- finding error waived when accused did not object until three objectionable questions were asked and answered
- record showed defendant tried within ten days of re-indictment, but record also showed counsel appointed on original, virtually identical indictment in excess of ten days before trial
- Error was waived because defendant failed to object until three objectionable questions were asked and answered.
Written by the judges who cited it.
The opinion
ODOM, Judge
(dissenting).
The conclusion of the majority that the trial court may order any new matter requested by the State to be included in the record at any time before the record is filed in this Court is wrong, and unsupported by the statutes.
The majority assert that the provisions of Article 40.09, Sec. 7, V.A.C.C.P., “clearly indicate the legislative intent that the trial judge be afforded limited discretion in these regards . . . .” Article 40.09, Sec. 7, supra, in fact reads:
“Notice of completion of the record shall be made by the clerk by certified mail to the parties or their respective counsel. If neither files and presents to the court in writing any objection to the record, within fifteen days after the mailing of such notice and if the court has no objection to the record, he shall approve the same. If such objection be made, or if the court fails to approve the record within five days after the expiration of such fifteen-day period, the court shall set the matter down for hearing, and, after hearing, shall enter such orders as may be appropriate to cause the record to speak the truth and the findings and adjudications in such orders, if supported by evidence, shall be final. In its discretion, the court may require the attendance of the defendant at such hearing. Such proceeding shall be included in the record, and the entire record approved by the court.” (Emphasis added.)
It will be seen that the only discretion left to the trial judge by the terms of this provision is whether the defendant’s attendance at the hearing will be required. Once the record has been approved, whether after hearing or not, the operation of this section has been completed and the appellate process moves forward to subsequent stages under the provisions of subsequent sections of this article. How, then, can this section supply authority for adding new material to the record at a date two months after its operation came to a close upon approval of the record ?
The majority propose to legislate new procedures solely upon the basis of general legislative intent. Such is pot a proper role for the courts. It is proper to construe legislative intent from enactments of that body; it is not proper to reverse that process and create new provisions on the basis of the general intent of the Legisla *274 ture. If the latter were true it would suffice for the Legislature to enact captions alone and leave the statutes to the courts; to write a general ticket and leave the driving to us. I cannot subscribe to such a practice.
The majority correctly recognize that only a strained construction of our statutes could permit new matter to be added to the record by supplemental transcript prepared after reversal on original submission to this Court, as was done in Davis v. State, Tex.Cr.App., 499 S.W.2d 303 . Unfortunately, at that time this Court did not discuss the issue of whether statutory appellate procedure would permit such a supplemental transcript. In this case we are squarely confronted with the issue, and the majority present an equally strained construction in their effort to affirm this case.
The majority express their concern at the lack of opportunity for the State to respond to appellant’s contentions. The State was not forbidden to file a brief in response to appellant’s brief. Article 40.-09(10), V.A.C.C.P., does not authorize the State to offer evidence to refute the arguments in appellant’s brief. When the appellate process is properly adhered to, the record is made and closed before the briefs are filed. Green v. State, 510 S.W.2d 919 , cited for the proposition that the State should be afforded an opportunity to show the harmlessness of any erroneous separation of the jury after being charged, is wholly inapplicable to the case before us. That case held only that a silent record will not support reversal where such an error is claimed. We are here confronted neither with a silent record nor with a claim of improper separation of a jury.
Citing Article 40.09, Secs. 2 and 7, V.A. C.C.P., in Lynch v. State, 502 S.W.2d 740 , Judge Roberts speaking for a unanimous court stated:
“[Wjhere the absence of material from the record is occasioned by the oversight or nonobjection of the accused, it has generally been held that any error in the record has been waived.
“We are unwilling to create a second standard for the use of the State, when it overlooks certain matters in the record, but fails to object thereto.”
In this case as in Lynch, supra, the State failed to designate for inclusion in the record under Section 2 certain matters essential to showing no reversible error in the face of the record standing withqut that matter. Likewise in each case the State failed to secure its inclusion by proper objection to the record under Section 7. Lynch properly held that the time for the State to make its record for appeal is the same as that of the appellant, namely at the times and by the means of the procedures set out in Sections 2 and 7.
It is unfair and not in accordance with the statutes governing the appellate process to permit the State to wait until the appellant has filed his brief before taking steps to create an appellate record which will show no reversible error. Where was the opportunity of the appellant to object to the new matters submitted by the State, to designate new matters of its own, or to require a hearing on the newly submitted matters ? Can the appellant designate new matters after the State files its brief? Does the time for filing appellant’s brief under Section 9 of Article 40.-09 start running anew after each filing of new matter and each “Supplemental Approval” of the record? May an appeal remain perpetually in the trial court by repeated filings of new matter for inclusion in the record after briefs are filed, each requiring a return to Section 7? I think not, because the Legislature has provided for an orderly appellate process which should proceed in a straightforward manner. Once the record is closed, it may not be reopened except for supplementation by specifically authorized means. 1 The trial *275 court does not retain general jurisdiction 2 of the case to reshape or modify the record after approval in whatever manner it may in its discretion elect. 3
Accordingly, I dissent from the holding of the majority because it is based upon a misinterpretation of the statutory rules governing the appellate process, and in effect holds those rules to be merely directory, leaving the trial judge unbridled discretion to supplement the record on appeal in whatever manner he chooses.
ONION, P. J., joins in this dissent.
. E. g., to prepare a substitution for a lost or destroyed record or portion thereof, under Art. 44.11, Y.A.O.O.P.
. It does have jurisdiction for limited purposes, e. g., to grant a new trial under Art. 40.09, Sec. 12, V.A.C.C.P.
. This Court lias often held than an untimely filed motion for new trial will not be considered, nor will the record of a hearing on such a motion be considered, even when it lias been considered by the trial court and placed in the record. E. g., Boykin v. State, Tex.Cr.App., 516 S.W.2d 946 ; Jones v. State, Tex.Cr.App., 501 S.W.2d 677, at 679 , and cases cited there. See also McCall v. State, Tex.Cr.App., 512 S.W.2d 334 . If the trial court has such unbridled discretion to place matters in the record, as contended by the majority, should we not overrule those cases that preclude our consideration of matters adduced at unauthorized hearings? Cf. Tocher v. State, Tex.Cr.App., 517 S.W.2d 299 , footnote 1, p. 300 (authored by .Turlze Roberts).