fifth ground error in Texas

2011Williams v. State, 712 S.W.2d 835 , 837–38 (Tex. App.––Corpus Christi 1986, pet. granted), rev’d on other grounds, 736 S.W.2d 906 (Tex. Crim.

2011Williams v. State , 712 S.W.2d 835 , 837–38 (Tex. App.––Corpus Christi 1986, pet. granted), rev’d on other grounds , 736 S.W.2d 906 (Tex. Crim.

2011Williams v. State, 712 S.W.2d 835 , 837–38 (Tex. App.––Corpus Christi 1986, pet. granted), rev’d on other grounds, 736 S.W.2d 906 (Tex. Crim.

2011Williams v. State , 712 S.W.2d 835 , 837–38 (Tex. App.––Corpus Christi 1986, pet. granted), rev’d on other grounds , 736 S.W.2d 906 (Tex. Crim.

1994Henry, 433 S.W.2d at 432-33 .

1994Henry, 433 S.W.2d at 432-33 .

1982Huff v. State, 576 S.W.2d 645 (Tex.Cr.App.1979); Ex parte Reagan, 549 S.W.2d 204 (Tex.Cr.App.1977); Killion v. State, 503 S.W.2d 765 (Tex.Cr.App.1973); Hardon v. State, 417 S.W.2d 170 (Tex.Cr.App.1967).

1982In these circumstances we are impelled by Craven v. State, 613 S.W.2d 488 (Tex.Cr.App.1981) to overrule the first four grounds of error, for “the record before us will not shed any light on the ultimate issue of prejudice to substantial rights of appellant, though there be error in denying the motion to quash,” id., at 490 ; Article 21.19, V.A.C.C.P. 7 The fifth ground of error, however, challenges the indictment on a matter of substance, and that must be addressed.

1982In these circumstances we are impelled by Craven v. State, 613 S.W.2d 488 (Tex.Cr.App.1981) to overrule the first four grounds of error, for “the record before us will not shed any light on the ultimate issue of prejudice to substantial rights of appellant, though there be error in denying the motion to quash,” id., at 490 ; Article 21.19, V.A.C.C.P. 7 The fifth ground of error, however, challenges the indictment on a matter of substance, and that must be addressed.

1982Huff v. State, 576 S.W.2d 645 (Tex.Cr.App.1979); Ex parte Reagan, 549 S.W.2d 204 (Tex.Cr.App.1977); Killion v. State, 503 S.W.2d 765 (Tex.Cr.App.1973); Hardon v. State, 417 S.W.2d 170 (Tex.Cr.App.1967).

1982Huff v. State, 576 S.W.2d 645 (Tex.Cr.App.1979); Ex parte Reagan, 549 S.W.2d 204 (Tex.Cr.App.1977); Killion v. State, 503 S.W.2d 765 (Tex.Cr.App.1973); Hardon v. State, 417 S.W.2d 170 (Tex.Cr.App.1967).

1982Huff v. State, 576 S.W.2d 645 (Tex.Cr.App.1979); Ex parte Reagan, 549 S.W.2d 204 (Tex.Cr.App.1977); Killion v. State, 503 S.W.2d 765 (Tex.Cr.App.1973); Hardon v. State, 417 S.W.2d 170 (Tex.Cr.App.1967).

1978The appellant's requested instruction No. 2 states: "If you find from the evidence, or if you have a reasonable doubt thereof, that booth No. 18 in Mr. Peeper's Book Store at 213 E. 6th Street, as shown by the evidence, was not a `Public Place' as that term has been defined herein, then you shall acquit the Defendant and say by your verdict `Not Guilty.'" It is well settled that when any defensive theory is raised by the evidence, the trial judge must charge the jury on that defensive theory, regardless of "whether the evidence is produced by the State or by the defense, whether it is strong o

1978The appellant’s requested instruction No. 2 states: “If you find from the evidence, or if you have a reasonable doubt thereof, that booth No. 18 in Mr. Peeper’s Book Store at 213 E. 6th Street, as shown by the evidence, was not a ‘Public Place’ as that term has been defined herein, then you shall acquit the Defendant and say by your verdict ‘Not Guilty.’ ” It is well settled that when any defensive theory is raised by the evidence, the trial judge must charge the jury on that defensive theory, regardless of “whether the evidence is produced by the State or by the defense, whether it is strong

1975The fifth ground of error is as follows : “The Appellant was denied due process of law, a fair and impartial trial and effective assistance of counsel, by virtue of the requirements of Article 46.02, Section 1 et seq., V.A.C.C.P., and Article 34 of the Texas Penal Code, which procedure requires the issue of insanity to be tried contemporaneously with the issue of guilt or innocence.” If appellant is contending he is entitled to a hearing on the defensive issue of sanity at the time of the offense, separate from the trial on guilt or innocence, such contention was decided adversely to him in Ni

1973Buster v. State, Tex.Cr.App., 470 S.W.2d 887 ; Nash v. State, Tex.Cr.App., 467 S.W.2d 414 .

1973Buster v. State, Tex.Cr.App., 470 S.W.2d 887 ; Nash v. State, Tex.Cr.App., 467 S.W.2d 414 .

1972Moon v. State, 465 S.W.2d 172 (Tex.Cr.App.1971); Goad v. State, 464 S.W.2d 129 (Tex.Cr.App.1971).

1972See and compare Webster v. State, 455 S.W.2d 264 (Tex.Cr.App. 1920); Crye v. State, 391 S.W.2d 57 (Tex.Cr.App.1965); Sikes v. State, 166 Tex.Cr.R. 257 , 312 S.W.2d 524 (Tex.Cr.App.1958) and 1 Branch’s Ann.P.

1972See and compare Webster v. State, 455 S.W.2d 264 (Tex.Cr.App. 1920); Crye v. State, 391 S.W.2d 57 (Tex.Cr.App.1965); Sikes v. State, 166 Tex.Cr.R. 257 , 312 S.W.2d 524 (Tex.Cr.App.1958) and 1 Branch’s Ann.P.

1972See and compare Webster v. State, 455 S.W.2d 264 (Tex.Cr.App. 1920); Crye v. State, 391 S.W.2d 57 (Tex.Cr.App.1965); Sikes v. State, 166 Tex.Cr.R. 257 , 312 S.W.2d 524 (Tex.Cr.App.1958) and 1 Branch’s Ann.P.

1972Moon v. State, 465 S.W.2d 172 (Tex.Cr.App.1971); Goad v. State, 464 S.W.2d 129 (Tex.Cr.App.1971).

1971The contention raised in the fifth ground of error that Article 725b, V.A.P.C., is unconstitutional because it classifies marihuana as a narcotic drug is overruled as it has been in Reyna v. State, Tex.Cr.App., 434 S.W.2d 362 , and other cases.

1971Appellant recognizes that only in capital cases where the State has made it known it will seek the death penalty does a defendant have the right to a separate examination of each juror under Article 35.17-1, V.A.C.C.P., and Moore v. State, Tex.Cr.App., 424 S.W.2d 443 .

1971Appellant recognizes that only in capital cases where the State has made it known it will seek the death penalty does a defendant have the right to a separate examination of each juror under Article 35.17-1, V.A.C.C.P., and Moore v. State, Tex.Cr.App., 424 S.W.2d 443 .

1969The fifth ground of error is as follows: “The Trial Court committed fundamental error in requiring the appellant’s co-defendant, Zane Leonard Evans, to appear in a lineup by himself with State’s Exhibit No. One and Two (the hat and coat) on his person, and then having the *358 State’s main witness identify him as the robber and testify to such facts.” Appellant cites United States v. Wade, supra, and Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 , which hold that one under indictment is entitled to his counsel at a lineup, as authority for his contention that Burton’s consti

1969The fifth ground of error is as follows: “The Trial Court committed fundamental error in requiring the appellant’s co-defendant, Zane Leonard Evans, to appear in a lineup by himself with State’s Exhibit No. One and Two (the hat and coat) on his person, and then having the *358 State’s main witness identify him as the robber and testify to such facts.” Appellant cites United States v. Wade, supra, and Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 , which hold that one under indictment is entitled to his counsel at a lineup, as authority for his contention that Burton’s consti

1874(Parker County v. Sewell, 24 Texas, 238 .) The fifth ground of error is, that the court erred in rendering judgment by default upon a petition upon which service was accepted, and which was not filed the first day of the term.