holding no error was committed when trial court held defense counsel in contempt in front of the jury, “[t]hough it would have been the better practice to reprimand counsel and impose the fine in the absence of the jury”
How later courts described this case
- holding no error was committed when trial court held defense counsel in contempt in front of the jury, “[t]hough it would have been the better practice to reprimand counsel and impose the fine in the absence of the jury”
- trial court did not err to refuse to permit defendant to file amended motion for new trial filed after twenty-day deadline because defendant failed to seek leave of court
Written by the judges who cited it.
The opinion
On Appellant’s Motion for Rehearing
MORRISON, Presiding Judge.
Appellant takes this Court severely to task for what he claims are discrepancies in our original opinion. We can conceive of no valid reason for discussing his criticisms because if we conceded that they were well-founded they would still have no effect upon the decision of this case.
That portion of our original opinion in which we discussed alleged jury misconduct was unnecessary because the motion for new trial which alleged jury misconduct occurring within the jury room was in general terms and was not supported by the affidavit of anyone, as required by our holding in Prince v. State, Tex.Cr. App., 254 S.W.2d 1006 . See also McCune v. State, 156 Tex.Cr.R. 207 , 240 S.W.2d 305 , and Moore v. State, Tex.Cr.App., 673 S.W.2d 275 .
We did not discuss appellant’s bill of exception No. 12 which relates to a question propounded to the witness Pressley which appellant contends was improper because it called for an opinion. The witness testified on direct examination for the State that the appellant had talked to him prior to the homicide and told him that a Mr. Cage and a Mr. Oliff were against him and had sicked “the law” on him. On cross-examination by appellant’s counsel, the witness testified that the appellant by his conduct had brought all this trouble on himself and stated further that the appellant had told him that he (the appellant) was being “pushed around” by the entire community of Taft. The State then took the witness on re-direct examination and asked him what the appellant had done to cause the community to dislike him. Appellant’s objection to this question was overruled.
Clearly, since the appellant had gone into the matter of the attitude of the community toward the appellant, the State had the right on re-direct examination to pursue the question further.
Bills of exception Nos. 12 and 14 relate to a question propounded to the witness Dr. Tunnell and his answer thereto. It is the appellant’s contention that the witness was not qualified to answer the question because the witness, though admitted to be a qualified expert medical witness, was not a ballistic expert. The deceased was shot in the right hand. Appellant testified that deceased had his hand on his pistol at the time he shot him. The doctor was asked if, from his examination of the deceased’s hand, he had found anything to indicate that the hand had been upon any solid object at the time the bullet entered it. He replied that it was his opinion that deceased’s hand had had nothing in it because he found no bruises thereon. Though perhaps not strictly a medical question, we have concluded that the doctor, who appeared to be a cautious witness, felt that he was qualified to give an opinion, and we are in no position to hold that he was not.
Appellant complains that he was deprived of the presence of a witness Moreno at the hearing on his motion for new trial. In his motion he says that Moreno had testified falsely at his trial. Said motion was sworn to by the appellant alone *266 ■ and only to the best of his knowledge and belief. Nowhere in the motion is any showing made as to how the appellant knew that Moreno’s testimony had been false. We merely find the blanket assertion that Moreno had not been present at the time and place about which he testified. There was nothing in the motion which told or intimated to the trial court how the appellant knew such fact, and no reasonable grounds were alleged to put the court on notice that such had occurred, and appellant’s affidavit merely stated that to the best of his knowledge and belief such was'true.
Appellant relies upon Lax v. State, 46 Tex.Cr.R. 628 , 79 S.W. 578 . The distinction between the motion in that case and the motion in the case at bar is apparent. In the Lax case the attorneys learned of jury misconduct from the juror McKinney. They requested McKinney to make an affidavit of such misconduct, and he refused. They then made an affidavit stating what the jury misconduct was and how they had learned of it.
To hold that a motion such as was before the court in this case was sufficient as a pleading to require the court to he’ar evidence thereon would authorize a fishing expedition in every case by the simple assertion in'the motion for new trial that the State’s witnesses had sworn falsely. We would not be inclined to so hold.
Remaining convinced that we properly decided this case originally, the appellant’s motion for rehearing is overruled.