Satterwhite v. State

Appellant was indicted in the District Court of Stephens County on the 3rd day of May, 1926. On the 21st of February, 1927, after pleading to the indictment, the venue, upon the motion of the trial court, was changed to Shackelford County. The appellant entered into a recognizance to appear before the district court of that county. An incomplete transcript *Page 585 of the order of the district court of Stephens County, dated March 1, 1927, was sent to Shackelford County. On the 28th day of March, after pleading to the indictment in Shackelford County, the venue, was changed to Taylor County, and the appellant entered into a recognizance to appear in that county as shown by the certified copy of the order of the district clerk of Shackelford County dated April 12, 1927. There was prepared a supplemental transcript by the district clerk of Stephens County which shows the empaneling of the grand jury, the presentment of the indictment, the trial and conviction of the appellant, the order granting a new trial, the entry of the appellant's plea and order of the court changing the venue to Shackelford County, and the recognizance of the appellant. The above bears the certificate of the district clerk of Stephens County, dated the 4th day of May, 1927, and appears to have been filed in the district court of Taylor County on the 2nd day of May, 1927. The record shows that the original indictment was before the district court of Taylor County at the time of the trial which resulted in this appeal. The indictment, by indorsement, appears to have been filed in the district court of Stephens County on the 3rd day of May, 1926, and to have been filed on the 15th day of April in the district court of Taylor County. As it appears here, there is no file mark on the indictment showing it to have been filed in Shackelford County. However, the judgment in the transcript from Shackelford County shows that on the 28th day of March, 1927, the appellant appeared and plead to the indictment.

On this appeal for the first time the appellant challenges the authority of the district court of Taylor County to try the appellant and to enter the judgment against him. The judgment recites that the appellant was duly arraigned and plead not guilty to the indictment on the 21st day of May, 1928. Article 570, C. C. P., 1925, reads as follows:

"When an order for a change of venue has been made, the clerk of the court where the prosecution is pending shall make out a true transcript of all the orders made in the cause, and certify thereto under his official seal, and send the same, together with all the original papers in the case, to the clerk of the court to which the venue has been changed, first making a correct certified copy of the same, and retain such copy in his office to be used in case any original be lost."

It has often been declared that deficiencies in the transcript may be supplied by a supplemental transcript. Wolfforth v. State, *Page 586 31 Tex. Crim. 387; Brown v. State, 6 Tex.Crim. App. 286; Biggerstaff v. State, 59 Tex.Crim. Rep.; Hollingsworth v. State, 87 Tex.Crim. Rep..

In the absence of any challenge to the jurisdiction of the district court of Taylor County when the appellant, at the time of his trial, plead to the indictment, the recitals in the judgment of conviction may be looked to and the presumptions in favor of the regularity of the action of the court may be considered in passing upon the claim that the indictment against the appellant which is copied in the transcript was not regularly before the court when the case was tried. See Hickox v. State, 104 Tex.Crim. Rep.. No such fault in the procedure is disclosed by the record as will warrant a reversal of the judgment.

The other matters to which the motion is addressed are regarded as having been properly determined in the opinion on the original hearing.

The motion is overruled.

Overruled.