Hackey v. State

500 S.W.2d 520 (1973)

Floyd Junior HACKEY, Appellant, v. The STATE of Texas, Appellee.

No. 46686.

Court of Criminal Appeals of Texas.

October 17, 1973.

Rehearing Denied November 7, 1973.

*521 J. W. Tyler, Tyler, for appellant (on appeal only).

Henry Wade, Dist. Atty., James B. Scott, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., Austin, for the State.

DOUGLAS, Judge.

This is an appeal from a conviction for indecent exposure of private parts to a female under the age of sixteen years. The punishment was assessed at thirty months in the Texas Department of Corrections.

The sole contention of the appellant is that the court instead of the jury assessed the punishment.

Only a partial statement of facts, certified to by the court reporter, appears in the file. This is an effort to prove that the appellant had agreed that the judge should assess the punishment. This statement of facts or transcription of the court reporter's notes cannot be considered because it has not been approved by the trial court and made a part of the record under Article 40.09, Section 7, Vernon's Ann.C. C.P.

The record reflects that the appellant, in accordance with Article 37.07, Section 2, V.A.C.C.P., elected at the beginning of the trial to have the jury assess the punishment. Article 37.07, Section 2, supra, also provides that after a finding of guilty a defendant with the consent of the attorney for the State may change his election of the one who assesses punishment.

In Garza v. State, Tex.Cr.App., 479 S.W.2d 294, complaint was made that the record did not reflect that the State consented to his election to have the judge rather than the jury assess the punishment. This Court held that the State acquiesced in and failed to object in the change and this was tantamount to consent.

The record in the present case shows that the trial judge assessed the punishment. No objection by either party to his doing so appears in the record. Absent an objection, it is presumed that the appellant agreed that the trial judge should assess the punishment.

No error is shown. The judgment is affirmed.