Garrett v. State , 94 Tex. Crim. 556 ( 1922 )

Conviction is for attempting to pass as true a forged instrument. Punishment was fixed at two years confinement in the penitentiary.

Appellant was indicted in February, 1919. It appears that prior to the indictment being returned he had been arrested upon complaint. Appellant claims that he consulted K.W. Stephenson and gave him all the facts of his case and employed said Stephenson to represent him. He says no definite fee was agreed upon, but that he hauled to Mr. Stephenson's barn six bushels of corn in part payment on the fee, and that Mr. Stephenson told him there would be no examining trial on account of the influenza epidemic, but he would be bound over to the court awaiting the action of the grand jury. Before the indictment was returned Mr. Stephenson was elected district attorney, and told appellant (so the latter claims) that having been elected district attorney he could not further represent him, whereupon he employed one McDonald as his lawyer. Stephenson represented the State at all times after his election as district attorney and prosecuted appellant at the time he was convicted at the July term, 1921. At the July term, 1919, the case was continued without order; at the January term, 1920, it was continued by agreement, and at the January term, 1921 it was continued without stating to whom the continuance was to be charged. During all of this time appellant was represented by McDonald who died about one week after the expiration of the January term, 1921. Appellant made no complaint that Stephenson had formerly been his attorney in the case and the court's attention was never called to that fact until after his trial and conviction. When the case was called for trial at the July term, 1921, appellant was not present. An alias capias was issued upon which he was brought into court the next day. He claims not to have known that his attorney (McDonald) had died until after he was arrested on this alias capias. The court gave him permission to talk to an attorney after he was brought into court and the judge certifies that after the consultation the only request made by the attorney was that the case be postponed for a few days to give appellant an opportunity to raise a fee, which postponement the court declined to grant. The district attorney says that at the time the case was tried he had entirely overlooked the fact that appellant had ever talked to him about it but that after conviction he recalled that he had done so, and himself called the attention of Mr. Sanders, the attorney now representing appellant, to that fact. Stephenson says he has no recollection of appellant going over the facts with him, nor of having represented the appellant at the examining trial; that no fee was ever paid him by appellant except the six bushels of corn which appellant reported having left in his (Stephenson's) barn.

None of the matters of which appellant now complains were raised in the court below until set up in his motion for new trial. The facts in the case show beyond question appellant's guilt. He alleges in his motion for new trial that if he had had counsel he could and would have presented a defense, but it nowhere appears in the record what the defense would have been; the name of no witness is given who had ever been subpœnaed in his case, or who could have been found whose testimony could in any way have defeated the charge against him. If it appeared that appellant had in the slightest degree been injured by the fact that Mr. Stephenson had ever at any time been consulted by him we would not be inclined to permit this conviction to stand, but no such fact appears from the record. It is not even asserted by counsel now representing appellant that there was any purposeful act on the part of Stephenson to take advantage of appellant in any ways, but it is admitted that Stephenson entirely overlooked the fact that he had ever at any time been consulted by appellant about the case. It does not appear that knowledge of any fact came into possession of the district attorney through such consultation which was used by him to the detriment of appellant on the trial. We are constrained to believe that the mere fact that appellant had at one time talked to him about his case, in the absence of any showing that appellant had any defense he could have interposed, does not present a state of affairs which calls upon this court to reverse the judgment. Appellant made no complaint at the time of the trial that Mr. Stephenson had ever been his lawyer, and totally failed in any way to call the court's attention thereto.

The judgment of the trial court is affirmed.

Affirmed.

ON REHEARING. June 6, 1923.