Gross v. State

BELCHER, Judge.

The conviction is for the offense of practicing dentistry without a license with two prior convictions of offenses of like character alleged for enhancement; the punishment, one year in jail and a fine of $2,500.

Proof was introduced that the appellant did not have a license to practice dentistry and also that he had been twice previously convicted of the offense of practicing dentistry without a license, as alleged in the information.

*455The testimony shows that the appellant in his office made impressions of the upper and lower gums of M. H. Strickland so that he could make a set of dentures for him; that Strickland later returned to appellant’s office where the appellant placed a set of dentures in his mouth which he accepted and paid on his first and last visit a total of $75 for them.

Appellant did not testify, but called the receptionist and a technician who worked in his office and laboratory and they testified that he was sick and unable to be in his office and laboratory on any of the dates when the state’s witness Strickland said the impressions of his gums were made by the appellant and the dentures delivered to him. They further testified that Strickland came to appellant’s office about the time he said he did, but that he brought a set of impressions with him from which a set of dentures were made, and that no impressions were made in their office.

It is insisted that error was committed when the state asked the witness Strickland why he went to appellant’s place and he answered that he went there to find out if the appellant was still making dentures, on the ground that the answer referred to some extraneous offense.

Following appellant’s objection, the state withdrew the question and at the request of the appellant the court instructed the jury not to consider the question or answer for any purpose, but refused appellant’s motion for a mistrial.

The state’s pleading alleged two prior convictions of the appellant for unlawfully practicing dentistry, and the information and judgment in each case were introduced without objection.

There is no showing that Strickland was referring to the unlawful practice of dentistry or to any convictions other than those relied on for enhancement when he said he went to appellant’s place to see if he was still making dentures. The court instructed the jury not to consider the question or answer for any purpose. No error is presented.

Appellant contends that a written statement signed by M. H. Strickland that the appellant did not make any impressions of his gums, which statement the state introduced in evidence, was exculpatory of the offense charged and that the court erred in refusing to instruct a verdict of not guilty.

*456Strickland testified that before he saw the appellant the receptionist said when she asked him to sign the statement that it just authorized appellant to do the work, and that he did not know the contents of the instruments. The receptionist testified that she got the patients to sign the statement before any work was done, but she did not know what the instrument was, and that she did not think that Strickland read it. The state did not rely upon this statement as being true, but contended it was false.

These facts do not warrant an instructed verdict of not guilty as the appellant contends.

Appellant insists that the court erred in orally instructing the jury as to the effect of its answers to the various forms of verdict contained in the charge.

When the jury first appeared in the court room the judge examined the verdict, conferred with counsel for both the appellant and the state, then told the jury that they had written a penalty in each of three places, and that it should have been in only one place. The jury then retired.

When the jury reported the second time the judge examined the verdict and informed them that they had used three forms and that they should have used only the form which was applicable to whatever they wished to do.

Here again the judge conferred at the bench with counsel for both the appellant and the state. The judge suggested to the attorneys that he could poll the jury. At which time the attorney for the appellant said “I think that the law requires that the verdict be returned in writing.” The judge then directed the jury’s attention to the different forms of verdict contained in the charge and again asked them to retire.

After the jury had retired, the second time, appellant moved for a mistrial because the judge had orally instructed the jury as “to the effect of their answers to the various questions presented to them”, which was refused.

Thereafter the jury returned the verdict upon which this conviction rests.

The record does not show any instruction by the judge in *457connection with the return of the jury’s verdict which was reasonably calculated to injure the rights of the appellant. Therefore no error is shown. Art. 666, C.C.P.

It was the duty of the court to refuse to accept an unauthorized verdict and to call the attention of the jury to the charge of the court and direct that they retire for further deliberation. Belton v. State, 162 Tex. Cr. Rep. 436, 286 S.W. 2d 432.

The evidence is sufficient to support the verdict and no error appearing the judgment is affirmed.

Opinion approved by the Court.