Opinion
No. 24559.
November 23, 1949. Rehearing Granted January 18, 1950.
1. — Statement of Facts — Included in Transcript — Not Considered.
Where statement of facts is incorporated in the transcript, contrary to the statute, it cannot be considered.
2. — New Trial — Overruling — Bill of Exceptions Unnecessary.
It is unnecessary to reserve a bill of exceptions to the action of the court in overruling a motion for a new trial.
3. — Statement of Facts — Absence Of — Nothing Reviewable.
If no statement of facts is properly brought forward, nothing is presented for review.
ON MOTION FOR REHEARING.4. — Evidence — Not in Record — Considered — Erroneous.
Where county judge in fixing the punishment on plea of guilty before him considers facts known to him but not a part of the record, the judgment will be reversed.
Aggravated Assault. Appeal from county court of Colorado County; penalty, fine of $250, and confinement in jail for one year.
Hon. John A. Hancher, Judge Presiding.
Reversed and Remanded.
G. F. Steger, Columbus, for appellant.
George P. Blackburn, State's Attorney, Austin, for the state.
Appellant pleaded guilty under an information charging an aggravated assault and was by the trial court fined $250.00 and sentenced to serve one year in the county jail, and he appeals.
The statement of facts is found to have been included in the transcript of the clerk which is contrary to the statute as amended in 1931, and found in Article 760, Vernon's Ann. C. C. P., Vol. 3, (Pocket Part, p. 43), Section 2 of which article reads as follows:
"2. To accompany Transcript. — The Statement of Facts in felony or misdemeanor cases shall not be copied in The Transcript of the Clerk, but when agreed to by the parties and approved by the Judge, shall be filed in duplicate with the Clerk, and the original sent up as a part of the record of the cause on appeal; and like procedure shall be followed if the Statement of Facts is prepared by the parties or by the Judge, on the failure of the parties to agree."
Therefore we cannot consider this presented statement of facts.
There are also five bills of exception found in the record, four of them being disallowed by the trial court and no exception found thereto. The remaining bill, being the only one allowed, relates to the action of the trial court is overruling the motion for a new trial, which was needless, it not being necessary that such bill be reversed. See 4 Tex. Jur. p. 399, sec. 266, as to the requirements of a bill of exception complaining of the overruling of a motion for a new trial.
On account of the absence of a statement of facts properly brought forward, we have no error presented herein. See Crutchfield v. State, 148 Tex.Crim. R., 187 S.W.2d 911.
The judgment of the trial court is affirmed.
ON MOTION FOR REHEARING.
Upon original submission the statement of facts could not be considered because it was incorporated in the transcript, and the judgment was affirmed. The statement of facts is now on file in this court, having been transmitted by the clerk of the trial court under his certificate that he inadvertently omitted to send up the original statement of facts.
In his motion for rehearing appellant raises many questions as to irregularities in the proceeding which resulted in the judgment against him, but we pretermit consideration of any save that now discussed.
The county judge prepared a statement of facts, and then at the request of counsel employed after the trial, added the following which is a part of the statement of facts under the judge's certificate:
"At the request of defendant's counsel, engaged subsequent to the above trial, the Court makes this further statement:
"In assessing the punishment in this case the Court had judicial knowledge of and considered the fact that the defendant has twice before in this Court been found guilty, on his pleas of guilty, of misdemeanor charges; first, in 1945, on a charge of aggravated assault with a motor vehicle, and second, December 6th, 1948, on a charge of unlawfully carrying a dirk.
"No testimony or evidence as to such other charges or any other offense was given in this cause.
"However, the Judge knew, of his own knowledge, of such other offenses, having been the trial judge in said last mentioned case when this defendant pleaded guilty to the charge of unlawfully carrying a dirk and having assessed the minimum fine of $100.00 in such case. The Court also considered the fact that, on the trial of said last mentioned case, the Court had warned the defendant of the serious nature of the circumstances out of which said charge of unlawfully carrying a dirk arose and had advised the defendant not to expect such leniency if he were subsequently found guilty upon any similar charge. The Court also considered the fact, in assessing the punishment in the present case, that on the trial of said last mentioned case, the Court had considered the defendant's financial circumstances and family situation in assessing the minimum punishment and had so advised the defendant at the time. The Court also considered the fact, in assessing the punishment in the present case, that in the judicial knowledge of the Court this defendant has on at least one other occasion drawn and attempted to use a knife to unlawfully cut another person. The Court also considered the fact, in assessing the punishment in the present case, that in the judicial knowledge of the Court this defendant has several times previously been convicted in Justice of the Peace Court of this County on charges of disturbing the peace and fighting, and that in the opinion of this Court the fines assessed in such Justice Court cases have had no apparent effect on the conduct of this defendant. The Court also considered, from its own knowledge and not from testimony or evidence introduced on the trial of this case, that the reputation of defendant as a peaceful and law-abiding citizen is bad.
"All of the foregoing matters were in the mind of the Court when the punishment was assessed in this case, although no evidence or testimony as to same was introduced on the trial of this cause."
It scarcely seems necessary to go further then set out the court's own reasons for fixing the punishment in this case to demonstrate an error calling for a reversal of the judgment. It is quite similar to cases where a trial judge attempts to qualify bills of exceptions by stating as facts things known to him but not made part of the record. See Dyer v. State, 47 Tex. Crim. 253, 83 S.W. 192; 4 Tex. Jur. 276, Sec. 193.
The motion for rehearing is granted, and the judgment is now reversed and the cause remanded.