third ground error in Texas

1970Reliance is had on United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.

1970Reliance is had on United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.

1988Nothing is presented for review.” Id.

1985McIntire v. State, 662 S.W.2d 65 (Tex.App.—Corpus Christi 1983).

1985McIntire v. State, 662 S.W.2d 65 (Tex.App. — Corpus Christi 1983).

1985The cases of Rodriguez v. State, 489 S.W.2d 121 (Tex.Cr.App.1972), reh. den. 1973, and Carter v. State, 496 S.W.2d 603 (Tex.Cr.App.1973), both follow the interpretation of “counsel in the case,” as set out in Hathorne, supra. In Rodriguez v. State, supra, the appellant’s third ground of error alleged the judge was disqualified because he had once been counsel in the case.

1985That statute requires that a jury be given instructions limiting the effect of a presumption, “when this code or another penal law establishes a presumption with respect to any fact,....” The appellant relies on Goswick v. State, 656 S.W.2d 68 (Tex.Crim.App.1983) and Eckman v. State, 600 S.W.2d 937 (Tex.Crim.App.1980) for the proposition that failure to give such a charge is fundamental error in a driving while intoxicated prosecution.

1985The cases of Rodriguez v. State, 489 S.W.2d 121 (Tex.Cr.App.1972), reh. den. 1973, and Carter v. State, 496 S.W.2d 603 (Tex.Cr.App.1973), both follow the interpretation of “counsel in the case,” as set out in Hathorne, supra. In Rodriguez v. State, supra, the appellant’s third ground of error alleged the judge was disqualified because he had once been counsel in the case.

1985That statute requires that a jury be given instructions limiting the effect of a presumption, “when this code or another penal law establishes a presumption with respect to any fact,....” The appellant relies on Goswick v. State, 656 S.W.2d 68 (Tex.Crim.App.1983) and Eckman v. State, 600 S.W.2d 937 (Tex.Crim.App.1980) for the proposition that failure to give such a charge is fundamental error in a driving while intoxicated prosecution.

1985The fourth ground of error is that Condition No. 16 does not have a reasonable relationship to the accused and the protection of the public as required by Hernandez v. State, 556 S.W.2d 337 (Tex.Crim.App.1977), and Tamez v. State, 534 S.W.2d 686 (Tex.Crim.App.1976), cited by appellant.

1985The cases of Rodriguez v. State, 489 S.W.2d 121 (Tex.Cr.App.1972), reh. den. 1973, and Carter v. State, 496 S.W.2d 603 (Tex.Cr.App.1973), both follow the interpretation of “counsel in the case,” as set out in Hathorne, supra. In Rodriguez v. State, supra, the appellant’s third ground of error alleged the judge was disqualified because he had once been counsel in the case.

1985The fourth ground of error is that Condition No. 16 does not have a reasonable relationship to the accused and the protection of the public as required by Hernandez v. State, 556 S.W.2d 337 (Tex.Crim.App.1977), and Tamez v. State, 534 S.W.2d 686 (Tex.Crim.App.1976), cited by appellant.

1985Johnson v. State, 650 S.W.2d 414 (Tex.Cr.App.1983); Thompson, supra at p. 654 .

1985Johnson v. State, 650 S.W.2d 414 (Tex.Cr.App.1983); Thompson, supra at p. 654 .

1982Lopez v. United States, 373 U.S. 427 , 83 S.Ct. 1381 , 10 L.Ed.2d 462 (1963); United States v. White, 401 U.S. 745 (1971); Thrush v. State, 515 S.W.2d 122 (Tex.Cr.App.1974); Saunders, supra. We overrule the third ground of error because we do not agree with Mr. Kizziar’s claim that he should have been warned of his constitutional rights before the recording was made.

1982Lopez v. United States, 373 U.S. 427 , 83 S.Ct. 1381 , 10 L.Ed.2d 462 (1963); United States v. White, 401 U.S. 745 (1971); Thrush v. State, 515 S.W.2d 122 (Tex.Cr.App.1974); Saunders, supra. We overrule the third ground of error because we do not agree with Mr. Kizziar’s claim that he should have been warned of his constitutional rights before the recording was made.

1982Lopez v. United States, 373 U.S. 427 , 83 S.Ct. 1381 , 10 L.Ed.2d 462 (1963); United States v. White, 401 U.S. 745 (1971); Thrush v. State, 515 S.W.2d 122 (Tex.Cr.App.1974); Saunders, supra. We overrule the third ground of error because we do not agree with Mr. Kizziar’s claim that he should have been warned of his constitutional rights before the recording was made.

1982Eddlemon, supra. By way of a third ground of error appellant argues that the evidence fails to support a conviction for robbery because it fails to show that the assault, if any, was committed during the immediate flight after an actual or attempted theft.

1982Lopez v. United States, 373 U.S. 427 , 83 S.Ct. 1381 , 10 L.Ed.2d 462 (1963); United States v. White, 401 U.S. 745 (1971); Thrush v. State, 515 S.W.2d 122 (Tex.Cr.App.1974); Saunders, supra. We overrule the third ground of error because we do not agree with Mr. Kizziar’s claim that he should have been warned of his constitutional rights before the recording was made.

1982In his fourth ground of error the appellant urges that we extend the doctrine of North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969) to situations involving probation revocation.

1982In his fourth ground of error the appellant urges that we extend the doctrine of North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969) to situations involving probation revocation.

1982Lopez v. United States, 373 U.S. 427 , 83 S.Ct. 1381 , 10 L.Ed.2d 462 (1963); United States v. White, 401 U.S. 745 (1971); Thrush v. State, 515 S.W.2d 122 (Tex.Cr.App.1974); Saunders, supra. We overrule the third ground of error because we do not agree with Mr. Kizziar’s claim that he should have been warned of his constitutional rights before the recording was made.

1982Thus, the question before the Supreme Court was "whether a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so," 422 U.S. at 807 , 95 S.Ct. at 2527 .

1982Thus, the question before the Supreme Court was "whether a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so," 422 U.S. at 807 , 95 S.Ct. at 2527 .

1981We deal here with the sine qua non of jury determination of death or life imprisonment — that the jury be given “adequate guidance in its punishment deliberations” that does not limit “its consideration of mitigating circumstances,” Evans, supra, at 946 . 14 In this light failure to provide the guidance mandated by a constitutionally ac ceptable statute is fundamental error as we know it in Texas, for the error goes to the very basis of the punishment so that the charge fails to permit the jury to consider the circumstances constitutionally required for its imposition, 15 see Harris v. State,

1981We deal here with the sine qua non of jury determination of death or life imprisonment—that the jury be given "adequate guidance in its punishment deliberations" that does not limit "its consideration of mitigating circumstances," Evans, supra, at 946 . [14] In this light failure to provide the guidance mandated by a constitutionally acceptable *740 statute is fundamental error as we know it in Texas, for the error goes to the very basis of the punishment so that the charge fails to permit the jury to consider the circumstances constitutionally required for its imposition, [15] see Harris v. S

1980In Berry v. State, 504 S.W.2d 501 (Tex.Cr.App.1974), this Court rejected a comparable contention, concluding that, by its own terms, Article 1.15, supra, specifically governs only cases tried before the trial court without a jury.

1980In Berry v. State, 504 S.W.2d 501 (Tex. Cr.App.1974), this Court rejected a comparable contention, concluding that, by its own terms, Article 1.15, supra, specifically governs only cases tried before the trial court without a jury.

1976Vasquez v. State, Tex.Cr.App., 532 S.W.2d 338 ; Maldonado v. State, Tex.Cr.App., 528 S.W.2d 234 .

1976In the third ground of error, appellant contends as follows: “The trial court erred in finding that the witnesses who identified the appellant as the person who committed the offense were not influenced by having seen photographs of the appellant or by the appellant being brought into the courtroom during the trial of the co-defendant.” To determine the admissibility of the in-court identification of appellant by two witnesses to the robbery, a hearing was held outside the presence of the jury, in accordance with Martinez v. State, Tex.Cr.App., 437 S.W.2d 842 .

1976Vasquez v. State, Tex.Cr.App., 532 S.W.2d 338 ; Maldonado v. State, Tex.Cr.App., 528 S.W.2d 234 .

1976Villareal, supra. The third ground of error is overruled.

1976Villareal, supra. The third ground of error is overruled.

1974In the third ground of error, appellant contends it received no notice of the trial date and was thereby denied due process of law, citing Boddie v. Connecticut, 401 U.S. 371 , 91 S.Ct. 780 , 28 L.Ed.2d 113 (1971), and others.

1974In the third ground of error, appellant contends it received no notice of the trial date and was thereby denied due process of law, citing Boddie v. Connecticut, 401 U.S. 371 , 91 S.Ct. 780 , 28 L.Ed.2d 113 (1971), and others.