Graham v. State , 138 Tex. Crim. 449 ( 1940 )

Appellant, in his motion for a rehearing, insists that we were in error in holding that the complaint and information were in fact filed with the clerk of the county court at the time that appellant entered a plea of guilty to possessing untaxed whisky.

As stated in the original opinion, this matter was first called to the court's attention on motion for new trial. In addition to what we said there, it might be noted that if the appellant desired to raise this question, he should have done so before his trial. Such matters cannot be raised for the first time after verdict. See Landreth v. State, 166 S.W. 503; Starbeck v. State, 109 S.W. 162; Brogdon v. State, 63 Tex. Crim. 475. As was stated by this court in the case of Hall v. State, 156 S.W. 644: "Further replying to this motion in arrest of judgment, it will be noticed under all the decisions that this matter cannot be taken advantage of by motion in arrest of judgment; that is with reference to the filing. These matters must come on motion to quash. We are of the opinion that, in reference to these matters, there is no merit, and the law is against appellant's contention."

Appellant also contends that we erred in holding that he had WAIVED a jury. Looking to the judgment in the record, we find that it recites that appellant WAIVED A JURY and entered a plea of guilty before the court. The proof offered on the motion for a new trial is contradictory and is, in our opinion, not strong enough to overcome the presumption of verity which attaches to the judgment. Appellant stated that he did not waive a jury. The assistant county attorney testified that he was present in court and it was his impression that appellant did waive a jury. This, together with the recitals in the judgment, raised an issue which the trial court decided adversely to appellants contention. The cases of Wagner v. State, 219 S.W. 471 and Williams v. State, 245 S.W. 413, cited by appellant in support of his position are distinguishable. In neither of those cases was there testimony that appellant had waived a jury, while in the instant case such an issue was raised. Moreover, in the instant case it might be noted that there is no contention on appellant's part that he was not guilty of the offense. He merely complains because of the manner in which the trial was had. Assuming his guilt, which he admitted, we fail to see how he could have fared any better at the hands of a jury than he did before the court. He received the minimum penalty prescribed by law for this offense. However, a defendantis entitled to a trial by jury unless it is waived. As stated in the original opinion, under the facts as disclosed by the record, we think the trial court was justified in overruling appellant's motion for a new trial.

The motion for a rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.