author: DICE, Judge. ONION, Judge. MORRISON, Judge. WOODLEY, Presiding Judge. ONION, Judge.

text:
    Alton CHARLES, Appellant, v. The STATE of Texas, Appellee.
    No. 40608.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1967.
    On Rehearing Dee. 13, 1967.
    Second Rehearing Denied Feb. 7,1968.

      R. P. Watson, Jr., Paul W. Anderson, Marshall, on appeal only, for appellant.
    Charles A. Allen, Dist. Atty., Marshall, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The offense is murder; the punishment, death.

The deceased, Andrew Judge Roe, a sixty-six-year-old retired lake property caretaker and game warden, lived near Caddo Lake in Harrison County. On the morning of March 3, 1966, his dead body was found lying on a sidewalk at the rear of his home. He had been shot in the chest with a shotgun, and it was apparent he had been murdered.

In the investigation which ensued, the appellant, an eighteen-year-old Negro boy in the eleventh grade at school, was brought to the office of District Attorney Charles Allen on the morning of March 11, 1966, for interrogation. District Attorney Allen proceeded to talk to appellant and, at such time, advised him he was under investigation. Appellant was then taken before Justice of the Peace J. G. Stauts, who advised him of his rights prescribed by Art. 15.17 of the 1965 Code of Criminal Procedure, which included his right to retain counsel of request the appointment of counsel and the right to remain silent. Appellant was also advised of his right not to take a polygraph examination. At such time he consented to take a test.

No charges were filed against appellant and he was released.

On March 17, appellant voluntarily accompanied Officers Shivers and Little to Dallas for the purpose of taking a polygraph examination.

After the test was given, appellant gave a statement to District Attorney Allen in which he confessed to having killed the deceased on the night of March 2, 1965, by shooting him with a gun. Prior to making and signing the confession in Dallas, which was introduced in evidence, appellant was warned by the district attorney that he did not have to make a statement and that any statement he did make could be used in evidence against him.

Appellant was not, however, taken before a magistrate in Dallas and warned of his rights enumerated in Art. 15.17, supra.

The confession introduced in evidence by the state as state’s exhibit #2, read, in part, as follows:

“I, Alton Charles, after first being duly warned by J. G. Stauts, who is the Justice of the Peace of Marshall, Texas, at 10:30 A_M., at Marshall, Texas— on March 11, 1966, of the accusation against me and the affidavit, if any, filed in support of such accusation; that I have a right to retain counsel; that if I am unable to obtain counsel that I can request the appointment of counsel; that I have a right to an examining trial; that I am not required to make any statement at all and that any statement I do make may be used against me; and Charles A. Allen, the person to whom this statement is made, also warned me that I do not have to make any statement at all; that I have a right to consult with a lawyer; and that any statement made by me may be used in evidence against me in the trial or trials of the offense or offenses concerning which this statement is made, do hereby make the following voluntary statement: * *

Appellant objected to the confession on the ground that it had not been taken according to law and was in violation of the decisions of the Supreme Court of the United States in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. He also objected on the ground that he had not been taken before a magistrate, as required by Art. 38.22, Vernon’s Ann.C.C.P., and warned of his rights under Art. 15.17, supra.

Appellant’s first ground of error is that the court erred in admitting the confession in evidence. It is appellant’s contention that the confession was not legally obtained because he was not first taken before a magistrate in Dallas, pursuant to the provisions of Art. 38.22, V.A.C.C.P., and warned of his rights enumerated in Art. 15.17, supra.

Art. 38.22, supra, at the time appellant’s written confession was made, provided in part as follows:

“When confession shall not be used
“(a) The confession shall not be admissible if the defendant was in jail or other place of confinement or in the custody of an officer at the time it was made, unless:
“1. It be shown to be the voluntary statement of the accused taken before an examining court in accordance with law, or
“2. It be made in writing and signed by the accused and shows that the accused has at some time prior to the making thereof received the warning provided in Article 15.17. It must further show the time, date, place, and name of the magistrate who administered the warning. It must further show that the person to whom the confession is made warned the accused: First, that he does not have to make any statement at all. Second, that any statement made by him may be used in evidence against him on his trial for the offense concerning which the confession is therein made * *
Art. 15.17, supra, at the time, provided:
“Duties of arresting officer and magistrate
“In each case enumerated in this Code, the person making the arrest shall immediately take the person arrested before some magistrate of the county where the accused was arrested. The magistrate shall inform the person arrested of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to request the appointment of counsel if he is unable to obtain counsel, and of his right to have an examining trial. He shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him. The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall admit the person arrested to bail if allowed by law.”

The state concedes that appellant was not taken before a magistrate in Dallas on March 17 and warned of the rights enumerated in Art. 15.17 but insists that such was unnecessary in view of the fact that he was taken before a magistrate in Harrison County on March 11 and warned of his rights under Art. 15.17, supra.

We agree with the state’s position.

Art. 38.22, supra, only requires that an accused receive the warning provided in Art. 15.17, supra, “at some time” prior to making the confession. This was complied with in the instant case, and the lapse of six days did not, under the circumstances, vitiate such warning.

Although appellant was not under arrest on March 11, he was the subject of investigation in the case and the warning was properly given him at that time.

No issue was raised by appellant as to the voluntary nature of the confession, and the requirement of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, that the court make an independent finding on the issue before admitting the confession in evidence was not applicable. Ex parte Roper, Tex.Cr.App., 408 S.W.2d 929.

There is no evidence that appellant was in any manner denied the assistance of counsel during his interrogation and the making of his confession. The record affirmatively shows that he was advised of his right to remain silent and his right to counsel. Such is specifically recited in the confession which he executed and signed.

Under the record, we find that the confession was not obtained in violation of the rules prescribed by the Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, wherein the court summarized its holdings in Gideon v. Wainwright and Escobedo v. State of Illinois, and overrule the first ground of error.

Our holding that the confession was legally obtained, and no issue having been made as to the legality of his arrest, disposes of appellant’s contention that the subsequent finding of the murder weapon and the introduction in evidence of photographs showing appellant’s reenactment of the crime was in violation of the “fruits of the poisonous tree” doctrine discussed in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, and such contention is overruled. In this connection it should be pointed out that appellant made no such objection to the evidence when offered at the trial.

In his remaining ground of error, appellant insists that the court erred in refusing to grant a mistrial when reference was made to a polygraph test during the questioning of Ranger Elliott by the state.

The record reflects that, on redirect examination of the officer by the district attorney, the following transpired:

“Q. Do you know how many persons submitted to investigations in this case? A. Yes, sir. We had already carried two to Dallas for the purpose of polygraph tests.
“MR. WATSON: We object to the introduction of any polygraph test— Judge, or the mention, and ask for a mistrial to be granted here for the reason it is not admissible for any purpose-
“THE COURT: I thought he was talking about the others.
“MR. WATSON: No, sir, he said that he carried two to Dallas for a polygraph test, and we object to the introduction or the statement of the polygraph test in this case, the injection of it into the case in any way.
“THE COURT: I will sustain the objection to that.
“MR. WATSON: And, we ask that a mistrial be granted in this case.
“THE COURT: I will overrule that motion.
“MR. WATSON: We feel, your Honor, that it is like carrying a skunk in here and telling the jury not to smell it, and it is impossible to cure it by that, and for that reason we are going to ask the court to grant us a new trial in this case, and declare a mistrial.
“THE COURT: I overrule your motion.
“MR. WATSON: Note our exception. I will ask the court then to instruct the jury not to consider a polygraph test or any other scientific test for any purpose whatsoever.
“THE COURT: You will not consider that statement that Mr. Elliott made about two people having taken the test in Dallas.
“MR. ALLEN: Two other people, your Honor.
“THE COURT: Two other people. Not the defendant.
“MR. ALLEN: No further questions.”

From the record, it appears that the reference to taking a polygraph test related to other people and not the appellant. This would not constitute reversible error under the rule announced in Peterson v. State, 157 Tex.Cr.R. 255, 247 S.W.2d 110, 248 S.W.2d 130, cited by appellant. The ground of error is overruled.

The judgment is affirmed.

DISSENTING OPINION

ONION, Judge.

Appellant’s trial commenced on August 30, 1966, after the effective date (June 13, 1966) of the decision of the United States Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Therefore, in determining the admissibility of appellant’s written statement we must consider not only whether ' state statutes have been complied with, but also whether the requirements of Miranda have been met. The majority opinion concludes that there was a substantial compliance with the state statutes in effect at the time. Articles 15.17, 38.22, V.A.C.C.P.

Be that as it may, it is clear from the record before us that the requirements of Miranda were not met prior to the admission of appellant’s statement.

Relating to custodial interrogation, the Supreme Court held in Miranda that an accused “prior to any questioning” must be given the following warnings which are now encompassed under the constitutional privilege against self-incrimination:

(1) That he has a right to remain silent.
(2) That any statement he does make can and will be used as evidence against him in a court of law.
(3) That he has the right to consult with counsel before answering any questions.
(4) That he has the right to have counsel present with him during interrogation.
(5) That if he cannot afford an attorney, one will be appointed for him without cost, prior to the questioning, if he so desires.

The Supreme Court made it plain that these warnings are an “absolute prerequisite” to any police interrogation and to the admissibility in evidence of any confession or statements made by the accused during the period of in-custody interrogation. Only if, after the giving of these Miranda warnings, the accused makes a “voluntary, knowing, and intelligent” waiver of his rights, may the police authorities initiate-their interrogation.

Therefore, in any trials commencing after June 13, 1966, the prosecution has the burden of not only showing that all the proper Miranda warnings were given, but the burden also of initially coming forward and proving that after such warnings the accused effected a “voluntary, knowing, and intelligent” waiver of his rights. The Chief Justice stated in the majority opinion of Miranda: “But unless and until such warnings and waiver are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him.”

In Miranda, the Chief Justice further wrote:

“This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.”

The opinion also states that “[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” (Emphasis supplied)

This perhaps expresses the traditional rule that the waiver of constitutional rights will not be “lightly inferred,” and the courts will “ ‘indulge every reasonable presumption against [the] waiver’ of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. It appears that the “waiver” referred to may be defined as “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, supra.

Miranda is not as explicit as it might have been regarding the issue of whether the accused, after receipt of the warnings, must make an express, affirmative statement of his intention to waive his rights in order to constitute an acceptable waiver.

The majority opinion in Miranda did say that: “[a]n express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962), is applicable here:

‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’

“See also Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Moreover, where in-custody interrogation is involved, there is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated.”

Further, the court said “[n]o effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given.” This language would certainly appear to necessitate some proof that the accused affirmatively stated he desired to relinquish his rights. The dissenting opinions of Mr. Justices Clark and Harlan indicate that this is what is required.

From the foregoing, as well as the record before us, it is clear that appellant was not given the full and complete Miranda warnings prior to the taking of his statement, nor has it been shown that the State has sustained its burden of showing an “affirmative” waiver. Further, no proof was adduced as to the appellant’s knowledge or understanding for an intelligent waiver. In all fairness to the law enforcement officers and the able district attorney, it should be noted that the confession was taken on March 17, 1966, several months prior to the Miranda decision.

While it appears that the appellant was given the warnings as set forth in Article 15.17, supra, six (6) days prior to the confession, as well as the warning required by Article 38.22 of the person to whom the confession was given, it simply does not appear from this record that appellant was informed in connection with his right to retained or appointed counsel that this included the right to consult with counsel prior to and during any interrogation if he so desired. Further, there is no showing in the record that he affirmatively waived his right to counsel and his privilege against self-incrimination after his rights were fully explained. It is true that the appellant does not appear to have requested counsel, but where the assistance of counsel is a constitutional requisite to the protection of an accused’s Fifth Amendment privilege in the fact of interrogation, the right to be furnished counsel does not depend upon a request. Miranda, 384 U.S. 436, at p. 471, 86 S.Ct. 1602, at p. 1626, 16 L.Ed.2d at p. 722. See also Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33.

The importance of the Miranda requirement, that an accused be informed of his rights (in “effective and express” terms) and thereafter “affirmatively” waive such rights in determining whether a statement is truly the product of a free choice is demonstrated by the facts in the case at bar. Here an indigent 18-year-old Negro high school student was “requested” to go to Dallas over 150 miles from his home at Karnack with two peace officers in a county patrol car. There in a strange city at the office of the Department of Public Safety this appellant who had no prior contact with police took a lie detector test. What he was told of the results of the test is not reflected by the record, but he was thereafter arrested. Subsequently the appellant, surrounded by law enforcement officers, without parents or friends, gave the statement now complained of. Two non-police officers witnessed the signing of the confession, one of whom testified and stated that he could not recall any warnings being given after his arrival. The exact length of the interrogation prior to confession does not appear in the record. It is shown that the appellant and the officers were in Dallas when the district attorney arrived from Austin between 9 and 10 a. m. prior to the polygraph test. Appellant’s statement was given some time in the afternoon, the exact time not revealed. It is observed that the vital part of the prior warning given to appellant and relied upon by the State was orally imparted to appellant six (6) days earlier, and given primarily to satisfy the regulation of the Texas Department of Public Safety as to the operation of polygraph tests. As earlier noted the appellant was never taken before a magistrate in Dallas County following his arrest in violation of Article 14.06, V.A.C.C.P., nor does the record reflect that he was taken before a magistrate after his return to Harrison County.

Further, it is not shown that it was made clear to the appellant that the mere fact that he had taken a polygraph test or may have answered some questions or volunteered some statements did not deprive him of the right to refrain from answering any further inquiries until he had consulted with an attorney and thereafter consented to be questioned.

The above-described facts readily demonstrate the similarity of the case at bar to the quartet of cases that comprise the Miranda decision. The record of the case at bar, like those of the “quartet,” does not evince overt physical coercion or patent psychological ploys, but in this connection note that the Supreme Court said:

“In these cases, we might not find the defendants’ statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest. In each of these cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures. The potentiality for compulsion is forcefully apparent * * * ” Miranda, 384 U.S. at p. 457, 86 S.Ct. at p. 1618, 16 L.Ed.2d at p. 713.

Under these circumstances, the Court said: “This atmosphere carries its own badge of intimidation.”

The Miranda opinion made it plain that the interviewing agent must exercise his judgment in determining whether an individual waives his right to counsel, but the constitutional basis of that right makes the standard for waiver necessarily high. The ultimate responsibility for resolving this constitutional question lies with the court. See Miranda, Footnote No. 55.

It may well be that there was a substantial compliance with the requirements of the Miranda decision, but it is not reflected in the record before us. It is obvious that the case at bar was not tried with the Miranda decision in mind. Upon a re-trial the proper warnings and waiver might well be demonstrated.

The harshness of the application of the Miranda decision to a case like the one at bar is apparent, but the Supreme Court’s reasons for making it applicable to cases commencing after June 13, 1966, is fully set forth in Johnson v. State of New Jersey, supra.

In passing on the admissibility of a confession, it is as much the duty of this Court to protect the appellant’s rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution as it is to protect his rights under our State Constitution. In this inquiry, this Court is bound by the interpretation placed upon the Federal Constitution by the Supreme Court of the United States.

From what has been said, it should be obvious that it is this writer’s humble opinion that the Miranda decision requires that the case at bar should be reversed and remanded.

There is more however. It also appears to be appellant’s contention that his Fourteenth Amendment rights to a fair trial were violated by the trial judge’s failure to determine the voluntariness of his alleged confession prior to its admission into evidence before the jury, as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Lopez v. State, Tex.Cr.App., 384 S.W.2d 345; Article 38.22, (b), V.A.C.C.P.

After the selection of the jury and prior to the reading of the indictment, a hearing was held to determine the voluntariness and admissibility of appellant’s statement. At the conclusion of the hearing, the court merely stated “I am going to overrule your motion, let the record so show, to suppress the introduction of this voluntary statement, alleged voluntary statement.” Appellant’s objection to introduction of the confession before the jury was likewise overruled. Thereafter the court failed to enter a written order stating his findings as required by the mandatory provisions of Article 38.22, (b), supra, in effect at the time. It is not clear if the trial judge decided voluntariness, one way or the other, or if he did, what standard was relied upon. Compare Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109. There was certainly no clear cut and reliable determination of the voluntariness of the confession.

In Lopez v. State, supra, this Court, taking heed of Jackson v. Denno, supra, stated:

“In new trials arising hereunder and in future trials in this state where there is a fair question of voluntariness of a confession of the defendant, the trial judge shall grant to the defendant the opportunity to object to the use of said confession; shall grant a fair hearing before the Court on the issue of voluntariness, and from all of the evidence and without regard to the truth or falsity of the confession, shall make a clear cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend. Upon request, such hearing shall be held and the court’s ruling made in the absence of the jury. Unless the trial judge is satisfied that the confession was voluntarily made he shall exclude it. If the confession has been found to have been voluntarily made and held admissible by the Court, it is recommended that the trial judge enter an order stating his findings, which order should be filed among the papers of the cause but not exhibited to the jury.”

Section (b), Article 38.22, supra, wrote into statutory laws the holdings of Lopez and Jackson. Now see Article 38.22, Section 2, V.A.C.C.P. (Acts 1967, 60th Leg., R.S., Chapter 569, p. 1732, 1741, effective August 28, 1967).

Even in absence of the statute the court’s action did not comply with the rule of Jackson v. Denno, that the trial court’s conclusion, as to voluntariness, must, at least, appear from the record with unmistakable clarity. See Sims v. State of Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593.

For the reasons stated above, I cannot agree with' the conclusions in the majority opinion that the requirements of Miranda have been met, or that express findings were not required as there was no issue of voluntariness raised.

I respectfully dissent.

DISSENTING OPINION

MORRISON, Judge.

I join in that portion of my brother Onion’s dissent in which he concludes that the requirements of the holding of the Supreme Court of the United States in Miranda v. State of Arizona, supra, have not been met.

OPINION ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

Appellant’s motion for rehearing urges that we set aside this conviction on the ground that the requirements of Miranda v. State of Arizona, supra, were not met.

As we understand the holding of the Supreme Court in Miranda, the specific warnings referred to in Judge Onion’s dissenting opinion must be employed “unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it”.

The Supreme Court stated its holding in Miranda in the following words:

“Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”

The view of the majority is that the Texas Statutes quoted in Judge Dice’s opinion, enacted after and under the impact of the Supreme Court’s opinion in Escobedo v. State of Illinois, supra, supply such effective means and the facts in this case, which are undisputed, reflect that such means were employed.

Even lawyers specializing in the defense of criminal cases who greeted the Miranda decision with such exclamations as “Isn’t it wonderful,” would not agree to exchange the Texas Statutes for others providing only the protection of the rights of an accused afforded by the due process clause of the Constitution of the United States.

The statutes quoted in Judge Dice’s opinion required two warnings, one by the magistrate and another by the person to whom the confession is made. The confession must be reduced to writing and signed and the written confession must show that both warnings had been given.

The undisputed facts of this case furnish further support for our conclusion that appellant was not deprived of his constitutional right to the assistance of counsel during his interrogation.

Appellant cooperated with the officers conducting the search for the person that shot Judge Roe, “with the exception, of course, that he was not telling the truth” about his activities on the evening in question.

After having been advised of his right to obtain counsel and, if unable to obtain counsel, to request the appointment of counsel and he had consented to take a polygraph test, appellant was not in custody for several days.

Before he signed the written confession he was again warned of his rights as required by the Texas Statutes and he read aloud the written confession which showed the warnings quoted in Judge Dice’s opinion. His attention was in this way again directed to his right to counsel after he had orally confessed.

The Texas Statutes, but not the due process clause of the Constitution, required that the written confession showing the warning be signed by appellant, an exception being that in connection with said confession he made “statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed * * (Art. 38.22(a) 3, C.C.P.196S)

The testimony introduced by the state without objection shows that after appellant made and signed the confession he was taken by the officers to the scene of the crime and to the home of appellant (both of which, interestingly, were in the town or community of “Uncertain” in a wooded area on the banks of Caddo Lake, in deep East Texas, and within sight of the caretaker’s house where the shot was heard and a searchlight was promptly used in an attempt to ascertain who fired it.)

Appellant’s father was called as a defense witness and on cross-examination testified without objection:

“Q. You were present at home in bed on the night of March 17th this year, when Alton, the Sheriff and myself and others came to your house, weren’t you?
“A. Yes, sir.
“Q. What did Alton say to you and your wife about killing Judge Roe ?
“A. After you all brought him home, we asked where was Alton, and Mr. Shivers, I think, told my wife that he was outside, and she asked him if there was anything wrong with him, he said ‘no, there wasn’t nothing wrong with him, he was just in a little trouble/ and she wanted to see him, and he brought him in, and they told him to tell his mother what he had did.
“Q. He told your wife that he killed Judge Roe, didn’t he?
“A. Yes, sir, sho’ did.
“Q. And, did he get the gun out of the closet and give it to the Sheriff ?
“A. Yes, sir.
“Q. Did you ask him why in the World he did such a thing?
“A. Yes, sir, sho’ did.
“Q. That gun right there, was that in your house on March 17th ?
“A. Yes, sir.
“Q. Is that the gun that Alton got out of the closet and gave the Sheriff, and told the Sheriff that was the one he killed Judge Roe with?
“A. Yes, sir.”

The judges of this court are fully aware of their duty to protect the rights of the accused and of the binding effect of new concepts of due process announced by the Supreme Court of the United States. Ex parte Young, Tex.Cr.App., 418 S.W.2d 824.

To set aside this conviction and lay the blame on Miranda v. State of Arizona, supra, would give no effect to its language: “unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, * * * ”; would expand the new concept of the meaning of due process announced by the Supreme Court after appellant confessed that he was the one who shot Judge Roe, and do so by an opinion which is not subject to review by the Supreme Court.

We remain convinced that appellant was not denied any constitutional right and that the court did not err in admitting in evidence his voluntary confession.

As to Jackson v. Denno, supra, we point out that at the hearing on the admissibility of the confession the witnesses were called and examined by appellant’s, counsel in support of his contention that appellant should have been taken before a magistrate and “re-warned” in Dallas because the warning given him by the magistrate in Marshall was not “after arrest” and he was not arrested until he was interrogated in Dallas.

We further point out that there was no material disputed fact issue as to the admissibility of the confession, appellant’s contention being that the confession showing the warnings given was “void on its face.”

Also we point out that this court has not held that the provision of Art. 38.22(b) V.A.C.C.P. (1965), which provided that the court enter an order stating his findings, was mandatory and we decline to so hold. In any event, such is not required by Jackson v. Denno, supra.

When this death penalty conviction joins a score and more of others affirmed by this court which are now pending in the federal courts, we have utmost faith that the rights of appellant as well as the rights of society will be protected and the Supreme Court, in doing so, will not fail to take into consideration the fact that the Texas Statutes afford even greater procedural safeguards than those required by any of .its decisions construing the due process clause of the Constitution of the United States.

Appellant’s motion for rehearing is overruled.

DISSENTING OPINION ON APPELLANT’S MOTION FOR RE-HEARING

ONION, Judge.

The majority simply refuses to come to grips with the fact that this record does not reflect that appellant affirmatively waived his rights and his privilege against self-incrimination prior to his statement. Repeated warnings, even though fully complying with the Miranda decision, are of no avail unless the State goes further and shows a “voluntary, knowing, and intelligent” waiver.

In its original opinion the majority with absolutely no mention of the waiver requirements of Miranda said: “Under the record, we find that the confession was not obtained in violation of the rules prescribed by the Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, wherein the Court summarized its holdings in Gideon v. Wainwright and Escobedo v. Illinois, and overrule the first ground of error.”

In its opinion on re-hearing, no reference is made to the above statement.

The majority appears to shift its position and again, without any discussion of waiver, places its reliance upon other means “fully effective” as the Miranda requirements.

Even a casual reading of the Texas statutes referred to demonstrate that such statutes do not come up to the standard of the Miranda warnings and are, therefore, not as fully effective. This is, of course, without regard to the additional and essential requirement of an affirmative waiver. Such Texas statutes in effect at the time of appellant’s statement did not require any waiver. How such Texas statutes, in effect at the time of the appellant’s statement, afford even greater procedural safeguards than any United States Supreme Court decision construing the due process clauses of the Federal Constitution as claimed by the majority is beyond the comprehension of this writer.

What the majority still fails to grasp, the Legislature was quick to realize. The Legislature recognized that the statutes in effect at the time of appellant’s statement, enlightened as they may have been when enacted, did not meet the requirements of the Miranda decision, nor were as fully effective. The 1967 amendments to Articles 15.17 and 38.22, V.A.C.C.P., provide for warnings comparable to Miranda and Article 38.22, supra, now includes the requirements of a waiver.

In attempting to sustain their original position, the majority points out an admission of guilt offered by the appellant himself. It is apparent they overlook the holding of the United States Supreme. Court in Haynes v. State of Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513, where the Court said:

“In reaching the conclusion which we do, we are not unmindful of substantial independent evidence tending to demonstrate the guilt of the petitioner. As was said in Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 740, 5 L.Ed.2d 760, [766]:
“ ‘Indeed, in many of the cases in which the command of the Due Process Clause has compelled us to reverse state convictions involving the use of confessions obtained by impermissible methods, independent corroborating evidence left little doubt of the truth of what the defendant had confessed. Despite such verification, confessions were found to be the product of constitutionally impermissible methods in their inducement.’
“Of course, we neither express nor suggest a view with regard to the ultimate guilt or innocence of the petitioner here; that is for a jury to decide on a new trial free of constitutional infirmity, which the State is at liberty to order.”

Further, in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, the Court said :

“It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, and even though there is ample evidence aside from the confession to support the conviction. Malinski v. People of State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; Payne v. State of Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975.”

As to Jackson v. Denno, supra, the majority makes the assertion without any reasoning that the provisions of Article 38.22, (b), V.A.C.C.P., 1965 (now Article 38.22, Section 2), which requires the court to enter an order stating his findings after a hearing on the admissibility of the confession, is not mandatory. The history and the very wording of the statute itself clearly indicate otherwise. Even if there was no statute at all, Jackson v. Denno, supra, requires that the trial court’s conclusion must appear from the record with unmistakable clarity. See Sims v. State of Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593. The Supreme Court of Georgia took the position the majority now takes and found a bottomless pit.

It appears further that the majority feels that this death penalty conviction should not be set aside by this Court because to do so would deprive the United States Supreme Court of an opportunity to review this conviction and the effectiveness of the Texas statutes now since repealed as a substitute for the Miranda requirements.

Since there is no such automatic review, let us hope that this indigent appellant will have available to him the funds to give the Court on the Potomac that opportunity.

For the reasons stated, and more particularly the reasons set out in my original dissenting opinion, I vigorously but respectfully dissent to the overruling of appellant’s motion for re-hearing.

MORRISON, J., joins in this dissent.

      . It appears to be tbe State’s position that appellant was not under arrest when taken before the magistrate in Harrison County; that he voluntarily accompanied the officers to Dallas; that only after the polygraph test indicated he was guilty was he arrested (without warrant) in Dallas County. If this be true, then the State and the majority overlook the provisions of Article 14.06, V.A.C.C.P., in effect at the time, which required that a person so arrested “shall” be taken “immediately” before a magistrate in the county of the arrest, who is required to perform the duties set out in Article 15.-17, V.A.C.C.P. The record reflects that appellant was never taken before any magistrate in Dallas County.

      . It is observed that Articles 15.17 and 38.22, supra, in effect at the time of appellant’s statement as well as the recent amendments (Acts 1967, 60th Leg., R.S., Chapter 695, pp. 1732, 1736, 1740) thereto use the word “may” with regard-to the warning as to the use of the statement in court.

      . Most of these required warnings are familiar to Texas procedure. See Articles 38.22, 15.17, Y.A.C.C.P. and their forerunners. Many commentators and courts combine warnings (3) and (4) above, and refer to Miranda as requiring a four-fold warning.

      .At the top of Miranda’s statement was a typed paragraph stating that the confession was made voluntarily, without threats or promises of immunity and “with full knowledge of my legal rights, understanding any statement I make may be used against me.” In rejecting the validity of the alleged “waiver” contained in Miranda’s written statement, the Supreme Court held that “[t]he mere fact that he signed a statement which contained a typed-in clause stating that he had ‘full knowledge’ of his ‘legal rights’ does not approach the knowing and intelligent waiver required to relinquish constitutional rights.” Miranda, 384 U.S. at p. 492, 86 S.Ct. at p. 1637, 16 L.Ed.2d at p. 734.
      In People v. Keesler, 53 Misc.2d 268, 278 N.Y.S.2d 423, the court found that the Miranda warnings were clearly and succinctly stated, but that no express waiver was given until the statement was signed, nor was any proof adduced as to the defendant’s knowledge or understanding for intelligent waiver. In concluding, under the circumstances, that there had been a failure of proof beyond a reasonable doubt that the defendant had knowingly and intelligently waived his rights as to any of the admissions or confessions, the Court stated: “With no prior articulation of waiver, the mere inclusion of words of waiver in the body of an exculpatory explanation amounting to a legal confession after four hours in almost continuous police custody fails to meet the requirements laid down in Miranda, supra.” (Emphasis supplied)
      See also George, B. James, Jr.: “Constitutional Limitations on Evidence in Criminal Cases.” Institute of Continuing Legal Education, Ann Arbor, Mich., 1966, pp. 119, 120; Sobel, N.: “The New Confession Standards—Miranda v. Arizona.” Gould Publications, Jamaica, N.Y., 1966, p. 75; George, B. James, Jr., Ed.: “A New Look at Confessions: Escobedo —The Second Round.” Institute of Continuing Legal Education, Ann Arbor, Mich., 1967, p. 76; Thompson, J.: “Confessions : Required Warnings.” Traffic Digest and Review, Traffic Institute, Northwestern University, November, 1966, p. 20; American Jurisprudence, Proof of Pacts, Anno., Vol. 19, pp. 1, 42, 68 (Waiver of Rights Under Miranda Decision).
      The Texas Legislature has recognized the requirements of Miranda in amending Articles 15.17 and 38.22, V.A.C.C.P. (Acts 1967, 60th Leg., R.S., Chapter 659, pp. 1732, 1736, 1740, effective August 28, 1967). The amendment to Article 38.22 (when oral and written confessions shall be used), supra, provides in part:
      “The defendant must knowingly, intelligently, and voluntarily waive these rights prior to and during the making of the statement.”

      . Miranda, 384 U.S. at p. 502, 86 S.Ct. at p. 1642, 16 L.Ed.2d at p. 739. “Indeed, even in Escobedo the Court never hinted that an affirmative ‘waiver* was a prerequisite to questioning; that the burden of proof as to waiver was on the prosecution; that the presence of counsel —absent a waiver — during interrogation was required; that a waiver can be withdrawn at the will of the accused * ⅜ ⅜ ”

      . Miranda, 384 U.S. at p. 504, 86 S.Ct. at p. 1643, 16 L.Ed.2d at p. 741. “To forgo these rights, some affirmative statement of rejection is seemingly required, and threats, tricks, or cajolings to obtain this waiver are forbidden.”

      .Neither the record nor the confession itself reflects that the appellant, after the warnings that were given, indicated in any way that he did not want a lawyer and decided to forgo his privilege against self-incrimination; -that he understanding^ rejected the offer with the knowledge of the potential ramifications and consequences of his decision. The fact the confession included a typed-in phrase that he was giving statement “voluntarily” is not sufficient in and of itself to constitute an affirmative waiver. Compare Footnote No. 4. For an excellent discussion of proof necessary for proof of an “affirmative” waiver see “Waiver of Rights Under Miranda,” American Jurisprudence, Proof of Facts, Yol. 19, p. 1.

      . While the statutory warning of former Article 727 (now Article 38.22, supra) appears to have been given by the district attorney, the person to whom the confession was given, some conflict in the testimony appears as to whether the district attorney advised the appellant in Dallas as to his right to counsel as reflected in the confession. This disputed issue was not resolved by the trial judge following the hearing on the voluntariness of appellant’s statement.

      . “Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so.” Miranda, 384 U.S. at p. 476, 86 S.Ct. at p. 1629, 16 L.Ed.2d at p. 724.
      It is also observed that the Supreme Cour£ said:
      “ [A] ny evidence that the accused was threatened, tricked or cajoled into waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.” Miranda, 384 U.S. at p. 476, 86 S.Ct. at p. 1629, 16 L.Ed.2d at p. 725.

      . Note that in Miranda, 384 U.S at p. 469, 86 S.Ct. at p. 1625, 16 L.Ed.2d at p. 720, the court said: “More important, whatever the background of the person interrogated a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.” (Emphasis supplied)

      . See Footnote No. 1.

      . See Miranda, 384 U.S. at p. 463, 86 S.Ct. at p. 1622, 16 L.Ed.2d at p. 717. See also Miranda, Footnote No. 32.

      . Miranda makes it clear that the accused should be advised of his right to terminate the interrogation at any time, even if he has been fully warned and has affirmatively waived his rights. Note that the amendment to Article 15.17, V.A.C.C.P. (Acts 1967, 60th Leg., R.S., Chapter 659, pp. 1732, 1736 effective August 28, 1967) requires, among other things, that magistrate warn the accused of his right to terminate the interview at any time.

      . Normally, the failure of the trial court’s findings as to voluntariness to appear in the record with unmistakable clarity does not necessarily require a new trial but rather a hearing as provided by Jackson v. Denno, 378 U.S. at pp. 393-396, 84 S.Ct. 1774, 12 L.Ed.2d 908. See Sims v. State of Georgia, supra. In the case at bar, however, there was also a violation of a state statute. (Article 38.22(b) V.A. C.C.P.)

      . Article 38.22(b), Y.A.C.C.P.1965, in effect at the time of appellant’s trial, reads: “If the confession or statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, he shall enter an order stating his findings which shall be filed among the papers of the cause but not exhibited to the jury. Only thereafter may evidence pertaining to such matter be submitted to the jury and it shall be instructed that unless the jury believes beyond a reasonable doubt that such confession or statement was voluntarily made, the jury shall not consider such statement or confession for any purpose nor any evidence obtained as a result thereof.” (Emphasis supplied)


source: Caselaw Access Project

author: WOODLEY, Presiding Judge. MORRISON, Judge.

license: Public Domain

text:
    Alton Oliver ANDERSON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 40838.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1967.
    Rehearing Denied Feb. 7, 1968.
    Second Rehearing Denied March 6, 1968.

      Emmett Colvin, Jr., Dallas (by appointment on appeal only), for appellant.
    Henry Wade, Dist. Atty., Curtis Glover and Kerry P. FitzGerald, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is robbery by assault; the punishment, 50 years.

Appellant’s first ground of error is that the evidence is insufficient to support a conviction of robbery. His remaining ground is that the conviction is void and in violation of the Fourteenth Amendment to the Constitution of the United States, there being no evidence to sustain a conviction for robbery.

The indictment alleged that appellant made an assault upon the person of Curtis Lorenzo Trimble and by said assault and by violence to Mr. Trimble and by putting him in fear of life and bodily injury, fraudulently took from his person and possession a coat and a belt.

Mr. Trimble testified that as he was walking from the bus stop to his home, three blocks away, shortly before midnight on December 2, 1965, he saw six boys in a parked yellow ’53 Chevrolet. After he passed, appellant followed by three of the other boys came toward him from behind and appellant asked him if he had a match and he replied in the negative and appellant hit him with his fist; grabbed him around the throat and stabbed him three times in the back with an ice pick.

The witness further testified that he was wearing an overcoat, in the pocket of which was a belt that he had purchased and a package of cigarettes. He identified appellant as the man who grabbed him, stabbed him and took his overcoat and belt, and testified that he had never seen the overcoat since that night and it was never recovered.

Mr. Trimble’s explanation of how appellant got his overcoat was:

“A. Well, after he grabbed me around my throat, he started stabbing me and I was trying to break loose and free myself so I freed myself and he was holding on the, to the neck of the coat and I wiggled out of the coat and broke into a run to run for safety.
“Q. And the three boys just stood there and watched this ?
“A. Well, they saw that he couldn’t hold me and they was running up to help and—
“Q. Well, then, would it be safe to say then that the other three boys also had their hands on your body about that time?
“A. Probably on the coat, but not on me.”

Testifying in his own behalf, appellant denied having stabbed the complaining witness or that he took his overcoat, or had any intention of doing so. His version was that his companion George Stinson asked the man for a match and hit him only after Mr. Trimble made a motion to his hip pocket, and that he (appellant) tried to separate them; that the man “started running and he ran up in some yard and pulled off his coat and kept on going and that he (appellant) ran the other way, followed by George. He also testified that Mr. Trimble ran about twenty feet before he “shucked his coat.”

On cross-examination appellant testified that he had received a two year suspended sentence for burglary on October 7, 1965, and had been convicted of theft on August 30, 1965.

This case is easily distinguishable from cases such as Clark v. State, 134 Tex.Cr.R. 427, 115 S.W.2d 953, where the driver jumped out of and abandoned the taxicab alleged to have been taken by means of an assault, and the persons making the assault had to take temporary control of it or suffer a wreck, and the taxicab was found two or three hours later in the same vicinity where they had apparently parked it in order that it might be recovered.

The jury resolved the issues of fact against appellant and the evidence is sufficient to sustain the verdict.

Appellant’s grounds of error are overruled.

The judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

In a most convincing manner appellant’s counsel contends that robbery is not shown because the State failed to prove that appellant permanently appropriated the injured party’s coat to his own use as is required by the holding of this Court in Posey v. State, 162 Tex.Cr.R. 153, 283 S.W.2d 58, in which the writer dissented. He bases this upon the injured party’s failure to mention whether or not any of the boys who had attacked him had his coat in their possession as they pursued him up the alley. He also contends that it was incumbent upon the State to have someone go to the scene of the assault and then testify that the coat was not left at the scene.

With these contentions we do not agree. The injured party testified unequivocally that an assault was committed upon him near midnight by four strangers, that certain property was taken from him by means of such assault, and that such property was never returned to him. We are not inclined to agree that the charge should have been assault with intent to murder or aggravated assault.

As we view this record the elements of robbery were shown, and appellant’s able motion for rehearing should be overruled.

It is so ordered.


author: WOODLEY, Presiding Judge. MORRISON, Judge

text:
    Sanders Lee LANE, Appellant, v. The STATE of Texas, Appellee.
    No. 40222.
    Court of Criminal Appeals of Texas.
    April 12, 1967.
    Rehearing Denied May 24, 1967.

      Ronald R. Waldie, Ralph Lynn McDowell, Emmett Colvin, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., James Law, Gil Shaw and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is unlawfully carrying a pistol; the punishment, a fine of $100.00.

The sole ground of error presented by defendant’s brief filed in the trial court is:

“The court erred in the denial of defendant’s motion to suppress, in admitting the testimony relating to the search and the fruits thereof, in violation of defendant’s rights under the Fourteenth Amendment to the Constitution of the United States.”
The motion to suppress, which the court overruled, moved: “to suppress the following evidence seized as a result of the search of his automobile * * * to wit:
(1) The pistol removed from the glove compartment of the above described automobile.
(2) Any other items seized as a result of said search; and
(3) Any statements or admissions, oral, written, taped or otherwise, made by the defendant after arrest was made or during subsequent search.”

None of the evidence or items mentioned in the motion to suppress as having been seized were offered in evidence at the trial.

It is clear from the brief that appellant’s claim of error is the admission of the evidence relating to the finding of the pistol in the glove compartment of the automobile appellant was driving at an excessive speed when he was stopped by the arresting officer.

The stipulated facts reveal the following.

While on regular patrol at approximately 3:20 A.M., a police officer of the City of Dallas observed appellant driving his station wagon at a speed of 50 miles per hour in a 35 mile speed zone on Twelfth Street in Dallas.

The officer stopped appellant, who was alone in his station wagon, and ordered appellant to step from the automobile which he did.

The officer did not request appellant’s permission to search the station wagon. Appellant did not give consent to a search of the car, nor did he object to the search. He remained standing by his automobile and said nothing.

The officer did not have a warrant for the arrest of appellant or a search warrant. He did not search the person of appellant until he searched the station wagon and found a pistol in the glove compartment. He then immediately searched appellant and found nothing of any significance. He radioed for assistance and upon the arrival of another police officer appellant was taken to the city jail where he was booked for the offense of carrying a pistol and was issued a citation for speeding.

As in Hardin v. State, Tex.Cr.App., 387 S.W.2d 60, we are not here dealing with a case of a search upon probable cause but a search incident to a lawful arrest. In Hardin v. State the arrest was for being drunk in a public place, and the search was of his person. Here the arrest was for speeding and the pistol was found in the glove compartment of appellant’s automobile prior to the search of his person.

The right to search as an incident to a lawful arrest is not limited to a search of the person of the accused. Agnello v. United States, 269 U.S. 20, 29, 46 S.Ct. 4, 5, 70 L.Ed. 145, 148; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Chapin v. State, 107 Tex.Cr.R. 477, 296 S.W. 1095; Sutton v. State, 157 Tex.Cr.R. 216, 247 S.W.2d 894, 895; Staton v. State, 172 Tex.Cr.R. 128, 354 S.W.2d 582; Harris v. State, 172 Tex.Cr.R. 150, 354 S.W.2d 155.

The Supreme Court stated, in Agnello v. United States, supra:

“The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime, and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 69 L.Ed. 543, 553, 39 A.L.R. 790; Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652, 655, L.R.A.1915B, 834, Ann.Cas.1915C, 1177.”

In Preston v. United States, supra, cited by appellant in support of his contention that there was no probable cause for the police officer to search appellant’s station wagon, the search of the automobile held to be without probable cause and unlawful was unrelated to the arrest for vagrancy, both as to time and place. However, the Supreme Court said:

“Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. * * * This right to search and seize without a search warrant extends to things under the accused’s immediate control.”

In Chapin v. State, 296 S.W. 1095, 1097, judge Morrow said:

“the search without warrant of a person and place made contemporaneously with a lawful arrest is permissible.” (Citing Agnello v. United States, supra)

In Sutton v. State, 247 S.W.2d 894, 895, we said:

“There can be no claim that appellant was illegally arrested. The evidence is without dispute that the search was made after the arrest. It is a settled rule that a search warrant is not necessary in order to search the person of one under lawful arrest. 38 Tex.Jur., p. 73; Tones v. State, 48 Tex.Cr.R. 363, 88 S.W. 217, 1 L.R.A.,N.S., 1024, 122 Am.St.Rep. 759, 13 Ann.Cas. 455. Having a right to arrest and search appellant, he also had a right to search the car. Stokes v. State, 117 Tex.Cr.R. 307, 35 S.W.2d 727; Hayes v. State, 115 Tex.Cr.R. 644, 28 S.W.2d 556.”

In Staton v. State, 354 S.W.2d 582, we said:

“The testimony of Officer Liles that he observed appellant violating a traffic law by speeding authorized his arrest without a warrant and the incidental search of his automobile. Art. 803 Vernon’s
Ann.P.C. Scott v. State, 134 Tex.Cr.R. 193, 114 S.W.2d 565; Linthicum v. State, 134 Tex.Cr.R. 608, 116 S.W.2d 714; Minor v. State, Tex.Cr.App., 219 S.W.2d 467, and Douglas v. State, 167 Tex.Cr.R. 82, 318 S.W.2d 643.”

We are aware of no authority which limits the search incident to a lawful arrest to the person of the accused.

The record does not reflect that the purpose of the officer in stopping appellant was to search his car and not to arrest him for speeding.

The right to search as an incident to a lawful arrest is given to all peace officers, not just to those who are afraid or are in actual danger. It was not incumbent upon the state to prove that the officer was afraid or that he was in danger, or that at the time of the arrest and search the officer knew that even though appellant might have a pistol within reach he would not use it to assault an officer or to effect his escape.

The fact that the arresting officer found the pistol before he searched appellant’s person did not affect the validity of the search of the station wagon, or the admissibility of the evidence relating to the finding of the pistol in the glove compartment.

We dispose of appellant’s argument concerning the effect of upholding the search which resulted in the finding of the pistol in the language borrowed from the opinion in Winfield v. State, 163 Tex.Cr.R. 445, 293 S.W.2d 765, 767.

“We are not unmindful of the possibilities of abuse of authority which appellant’s counsel argues so forcefully may result from this decision, but we feel that we are bound by the acts of the Legislature and the prior decisions of this Court.”

The trial court did not err in overruling the motion to suppress such evidence.

The judgment is affirmed.

MORRISON, Judge

(dissenting).

It should be noted that Preston v. United States, supra, said that in cases involving the search of motor vehicles, “the test still is, was the search unreasonable.” This is consistent with the United States Constitution and the Constitution of Texas. In simple traffic violations there are no fruits of the crime, and a search can be justified only as a means of affording protection to the arresting officer. To say that the officer who turns his back on the driver whom he has arrested, while he first searches the driver’s automobile is conducting a reasonable search incident to the arrest and not conducting an exploratory search staggers the credulity of anyone who pauses to examine the reasoning.

We quote from “Constitutional Limitations on Evidence in Criminal Cases”, Institute of Continuing Legal Education Handbook No. 16: “Very few drivers can traverse any appreciable distance without violating some traffic regulation.” Such violations under the arrest laws of most states give police officers the right to arrest the driver without a warrant, but “the overwhelming weight of case law holds that there is no right to search either the occupants of the car or the car itself when arrest is made for an ordinary traffic offense.”

A relatively new annotation titled “Lawfulness of Search of Motor Vehicles Following Arrest for Traffic Violation” may be found in 10 A.L.R.3rd, at page 314. It is interesting to note that of the approximately seventy cases from this and other jurisdictions there collated and discussed, only one case is found which would possibly authorize a search of this appellant’s automobile under the meager stipulations which form the facts of this case.

I am not prepared to stand alone against this great weight of authority in such a sensitive area of constitutional law.

I respectfully dissent.


author: DICE, Judge. MORRISON, Judge. WOODLEY, Presiding Judge. ONION, Judge.

text:
    Albert LACY, Appellant, v. The STATE of Texas, Appellee.
    No. 40821.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1967.
    Rehearing Denied Feb. 14, 1968.
    Second Rehearing Denied March 27, 1968.

      Weldon Holcomb, Tyler, for appellant.
    Hunter B. Brush, Dist. Atty., William H. Power, Asst. Dist. Atty., Tyler, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for the unlawful possession of wine for the purpose of sale in a dry area; the punishment, two years in jail and a fine of $3,000.

Five prior convictions for offenses of like character were alleged for enhancement of the punishment.

The issue of appellant’s guilt or innocence was first submitted to the jury. After return of the jury’s verdict of guilty, appellant requested that the jury assess the punishment.

At the hearing on punishment, proof was offered by the state of four of the five prior convictions alleged for enhancement (the state having been permitted to withdraw from the information the allegation, in paragraph 6, of one of the prior convictions). Proof was also offered by the state showing other convictions of appellant for liquor law violations besides those alleged for enhancement.

Upon the trial on the issue of guilt or innocence, state liquor board inspector Gibson L. Hadaway testified that on the morning of March 9, 1966, after having received information that a load of whisky was going to be hauled, he went to a certain location in the northern part of the city of Tyler and stationed himself underneath a vacant house. Soon he observed appellant walk across the street and enter his cafe. Appellant then walked back across thq street and the officer saw a Buick automobile being driven in behind a house at 923 West Field Street. People were then observed rushing back and forth from the car into the house at 923 West Field Street. Appellant was observed making a trip to his house and coming back to the house on Field Street with what appeared to be a case of beer. Appellant was then seen to go behind the house where the car was parked and then come out of the house with two sacks, one under each arm. The officer then seized the two sacks and found that each sack contained six four-fifths quarts of Gypsy Rose wine.

In his first ground of error, appellant insists that the court erred in admitting hearsay testimony over his objection when Officer Hadaway, upon being asked on direct examination why he was underneath the vacant house on the occasion in question, testified:

“I had received information that a load of whisky was going to be hauled and I called Lieutenant Elliott, of the Police Department and had him drop me off, out there.”

Wood v. State, 166 Tex.Cr.R. 319, 313 S.W.2d 615, McCormick v. State, 166 Tex.Cr.R. 484, 316 S.W.2d 736, Cabrera v. State, Tex.Cr.App., 395 S.W.2d 34, Hodge v. State, 214 S.W.2d 469, and Rosales v. State, Tex.Cr.App., 399 S.W.2d 541, are relied upon by appellant in support of his contention.

The state concedes that the testimony was hearsay but insists that under the record no reversible error was shown. With such contention we agree.

An issue of probable cause for appellant’s search without a warrant was made before the jury — which fact distinguishes the case from the above cases cited by appellant. Such testimony was therefore admissible on the issue of probable cause, although such issue was not submitted to the jury in the charge.

Further, the mere proof that Officer Hadaway had received information that a load of whisky was going to be hauled— which information did not connect appellant therewith — could not have been injurious to him. In the absence of injury, no reversible error could be shown. Miller v. State, Tex.Cr.App., 396 S.W.2d 128.

In his second ground of error, appellant insists that:

“The trial court erred in allowing the state to introduce evidence at the main trial of the character or reputation of the defendant when same had not been placed in issue.”

Appellant predicates this ground of error on the court’s action in permitting Officer Hadaway to testify that, in a conversation with appellant regarding the subject of bootlegging, appellant had stated to the witness: * * * he [appellant] was a bootlegger and that he knew we knew he was a bootlegger,” and on the further testimony by the officer that prior to and near .the day in question he had “seen Albert Lacy sell beer and whisky; take the money for it and deliver it to cars parked out in the front, to customers out in front of his place of business, several times on Sunday morning, early.”

It should first be pointed out that no objection was made to the testimony on the-ground now urged in appellant’s brief.

Appellant’s objection to the witness’s testimony was that it was highly prejudicial and inflammatory because it involved extraneous matters. We perceive no error.

Appellant’s statements in conversation with the witness that he was a bootlegger were admissible against him on the issue of the purpose for which he possessed the wine in question. See: 24 Tex.Jur.2d 170, Sec. 614.

The testimony of the officer with reference to having seen appellant sell beer and whisky was admissible on the issue of whether he possessed the wine in question for the purpose of sale. McLendon v. State, 101 Tex.Cr.R. 128, 274 S.W. 159; Moreno v. State, 122 Tex.Cr.R. 178, 54 S.W.2d 509.

Our disposition of appellant’s second ground of error also disposes of his third ground of error, which insists that such testimony should not have been admitted because it constituted proof of extraneous-offenses and separate acts of misconduct when “the issues of intent, identity or system had not arisen in the case.” Such ground of error is overruled.

In his ground of error #4, appellant complains of the court’s failure to limit the jury’s consideration of the evidence of extraneous offenses and other acts of misconduct in his charge on the issue of guilt or innocence.

We perceive no error, as it is the rule that evidence which goes to prove one of the main issues need not be limited. Lane v. State, 111 Tex.Cr.R. 367, 12 S.W.2d 1027; Arcos v. State, 120 Tex.Cr.R. 315, 29 S.W.2d 395; Moss v. State, Tex.Cr.App., 364 S.W.2d 389. The evidence of other sales by appellant was admissible to prove the purpose for which he possessed the wine in question — which was one of the main issues in the case. While such evidence showed extraneous offenses, under the rule stated a limiting charge was not required.

In his ground of error # 5, appellant complains of the court’s action in permitting the state to introduce in evidence at the hearing on punishment the information in the case. Appellant objected to the information (state’s exhibit # 33) on the ground that it was an attempt to bolster the state’s case and was hearsay. Urban v. State, 387 S.W.2d 396, is relied upon by appellant in support of his contention.

In Urban v. State, supra, this court, in a majority opinion of two to one, held that an indictment was inadmissible as hearsay. In the opinion the court recognized that it was proper to read the indictment to the jury and for the jury to take it into the jury room during deliberation. The conviction was reversed because of insufficiency of the evidence.

In the instant case, the information was properly read to the jury at the hearing on punishment, except the allegations in paragraph 6 which were withdrawn by the state. The information, with the exception of paragraph 6, was also admitted in evidence and the jury was instructed not to consider the same as any evidence against appellant but only to determine whether the state had met its burden of proof with respect to the allegations of prior convictions. The jury was specifically charged not to consider paragraph 6 thereof, which had been withdrawn by the state.

Under the record, we perceive no injury to appellant by the admission of the information in evidence, and overrule the ground of error.

In his sixth and last ground of error appellant insists that in his charge to the jury on punishment the court commented upon the weight of the evidence in paragraph VIII thereof, which was an instruction to the jury with reference to its consideration of the evidence of prior convictions other than those pleaded for enhancement in fixing the penalty in the case.

We find no exception to the court’s instruction on the ground that it was on the weight of the evidence. We have, however, considered the instruction given by the court and find that it does not assume the prior convictions but specifically authorized the jury to consider the prior convictions “if you find there were any such other convictions of this Defendant.” The ground of error is overruled.

The judgment is affirmed.

DISSENTING OPINION

MORRISON, Judge.

I cannot bring myself to agree with the disposition of appellant’s fourth ground of error.

This Court has said on many occasions that evidence of prior sales of liquor is admissible in cases wherein the accused is charged with possession of liquor, but that such evidence is only admissible for the purpose of showing the accused’s intent in possessing the liquor. Ybarra v. State, Tex.Cr.App., 401 S.W.2d 608; Davidson v. State, 161 Tex.Cr.R. 486, 278 S.W.2d 861; Gilmore v. State, 159 Tex.Cr.R. 121, 261 S.W.2d 854; Abston v. State, 157 Tex.Cr.R. 500, 250 S.W.2d 214; Carroll v. State, 156 Tex.Cr.R. 533, 244 S.W.2d 828; Morrison v. State, 155 Tex.Cr.R. 106, 230 S.W.2d 808; Dodd v. State, 149 Tex.Cr.App. 278, 193 S.W.2d 819; Lawson v. State, 148 Tex. Cr.R. 140, 185 S.W.2d 439; Smiley v. State, 146 Tex.Cr.R. 342, 174 S.W.2d 973; Woodruff v. State, 145 Tex.Cr.R. 324, 167 S.W.2d 769; Crutchfield v. State, 144 Tex.Cr.R. 291, 162 S.W.2d 699; Purselley v. State, 142 Tex.Cr.R. 535, 155 S.W.2d 378; McDowell v. State, 142 Tex.Cr.R. 530, 155 S.W.2d 377; Brooks v. State, 138 Tex.Cr.R. 526, 137 S.W.2d 768; Balleu v. State, 128 Tex.Cr.R. 375, 82 S.W.2d 146; Tubbs v. State, 124 Tex.Cr.R. 62, 60 S.W.2d 219; Graham v. State, 122 Tex.Cr.R. 416, 55 S.W.2d 826; Williams v. State, 119 Tex.Cr.R. 340, 43 S.W.2d 98; Overman v. State, 117 Cr.R. 260, 36 S.W.2d 1021; Kellar v. State, 116 Tex.Cr.R. 301, 31 S.W.2d 632; Kellar v. State, 115 Tex.Cr.R. 368, 28 S.W.2d 800; Tate v. State, 115 Tex.Cr.R. 534, 27 S.W.2d 808; Staglik v. State, 111 Tex.Cr.R. 623, 13 S.W.2d 376.

Failure by the court to limit such evidence to the question of the accused’s intent in possessing liquor was error. Evans v. State, 169 Tex.Cr.R. 295, 333 S.W.2d 387; McGowan v. State, 158 Tex.Cr.R. 319, 255 S.W.2d 512; Walker v. State, 146 Tex.Cr.R. 321, 174 S.W.2d 974; Balleu v. State, supra, and Lanham v. State, 99 Tex.Cr.R. 410, 269 S.W. 799. See also Thomas v. State, 63 Tex.Cr.R. 98, 138 S.W. 1018 and Scott v. State, Tex.Cr.App., 68 S.W. 680.

I respectfully dissent.

OPINION ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

We remain convinced that appellant’s first three grounds of error, which relate to the admission of testimony of Inspector Hadaway, were properly disposed of in our original opinion affirming the conviction.

Our disposition of appellant’s fourth ground of error is vigorously attacked upon the grounds and authorities set out by Judge Morrison in his dissent.

In his brief filed in the trial court appellant set forth as his ground of error No. 4: “The trial court erred in refusing to limit the jury’s consideration of extraneous: offenses and other acts of misconduct.”

The argument found in said brief reflects that the contention was that “assuming the admissibility of the extraneous offenses and separate acts of misconduct,” the trial' court erred in refusing to limit the jury’s consideration of same “to the issues of intent, identity, system, purpose, motive or whatever issue the state contemplated resolving by the introduction of such evidence.”

Citing Ernster v. State, 165 Tex.Cr.R. 422, 308 S.W.2d 33, 34-35, the brief urged that the defendant “should not have been tried as a criminal generally.”

The objection to the charge was:

“Defendant further objects to the Court’s failure to charge the jury in regard to the ‘extraneous offenses’ introduced before the jury over the objections of the defendant for the reason that the same deprives the defendant of a fair trial and the jury should be limited in their consideration of same.”

Art. 36.14 Vernon’s Ann.C.C.P. requires-that objections to the charge shall distinctly specify each ground of objection.

It is apparent that the objection did not point out what evidence was referred to as “in regard to ‘extraneous offenses’.”

It is also apparent that the objection referred only to extraneous offenses, whereas the ground of error complained of the court’s failure to limit the jury’s consideration of extraneous offenses and other acts of misconduct.

The objection made no reference to what limitation the trial court failed to place upon “the consideration of extraneous offenses and other acts of misconduct,” but as stated above, it was argued in the brief that evidence relative to extraneous offenses: should have been limited “to the issues of intent, identity, system, purpose, motive or whatever issue the state contemplated resolving by the introduction of such evidence.”

Assuming that the objection to the court’s charge was sufficient and that the court erred in failing to limit some or all of the testimony of Inspector Hadaway referred to in appellant’s grounds of error 1, 2 and 3, it does not follow that the omission of such limiting charge is ground for reversal of the conviction.

Art. 36.19 V.A.C.C.P. reads:

“Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.-16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.”

In arguing his ground of error No. 3, appellant pointed out in his brief filed in the trial court that there was no attempt to rebut the presumption that the possession of the 12 quarts of wine was for the purpose of sale, and intent or purpose was not therefore a contested issue before the jury.

This would appear to answer any claim that the omission of a limiting charge was prejudicial insofar as the guilt of appellant of possessing such wine for the purpose of sale is concerned. It seems clear under the record that a charge limiting the evidence referred to in appellant’s ground of error Nos. 1, 2 and 3 would have had no effect on the jury’s finding on the issue of guilt.

Cases decided prior to the 1965 Code of Criminal Procedure, and other cases which relate to the prejudicial effect of error in the charge of the court submitting the issue of punishment as well as guilt or innocence, may not be applicable where, as here, the issue before the jury does not include punishment.

Appellant elected to have the jury which had found him guilty assess his punishment. Prior convictions alleged for enhancement and others were admissible at such hearing and were proved.

It is difficult to see how appellant could have been prejudiced by testimony at his main trial that he had stated that he was a bootlegger, and that he had been observed carrying on such business at his cafe.

Appellant’s motion for rehearing is overruled.

DISSENTING OPINION

ONION, Judge.

In his exhaustive and well briefed motion for rehearing appellant vigorously takes this Court to task and urges that the Court erred in its original opinion when it stated:

“In his ground of error #4, appellant complains of the court’s failure to limit the jury’s consideration of the evidence of the extraneous offenses and other acts of misconduct in his charge on the issue of guilt or innocence.
“We perceive no error, as it is the rule that evidence which goes to prove one of the main issues need not be limited. Lane v. State, 111 Tex.Cr.R. 367, 12 S.W.2d 1027; Arcos v. State, 120 Tex.Cr.R. 315, 29 S.W.2d 395; Moss v. State, Tex.Cr.App., 364 S.W.2d 389. The evidence of other sales by appellant was admissible to prove the purpose for which he possessed the wine in question — which was one of the main issues in the case. While such evidence showed extraneous offenses, under the rule stated a limiting charge was not required.”

After a careful and mature consideration of the cases as cited by appellant in his motion for rehearing, I have concluded that the trial court erred, over proper objection, in refusing to limit the jury’s consideration of the extraneous offenses. It was upon this very ground of error that Judge Morrison dissented originally, and I was in error in voting with the majority.

The rule cited in this Court’s original opinion is well recognized and is often applicable. 31 Tex.Jur.2d, Instructions, Sec. 133, p. 706. It is also true that evidence which goes to show motive goes to prove the main case, and is never an incidental matter. Wilson v. State, 70 Tex.Cr.R. 3, 155 S.W. 242. It should be borne in mind, however, that a distinction between motive and intent should be observed with relation to the question of limiting the evidence. It is not necessary to limit evidence that is a part of the offense and which tends to show the motive actuating the party at the commission of the offense, whereas a collateral crime not growing out of the offense in question and which is introduced for the purpose of illustrating the intent with which the crime charged was done should be limited in the court’s charge. Weaver v. State, 46 Tex.Cr.R. 607, 81 S.W. 39. See also 31 Tex.Jur.2d, Instructions, Sec. 138, p. 711.

Further, attention is called to 31 Tex.Jur. 2d, Instructions, Sec. 146, pp. 720-722, which reads in part as follows:

“Where evidence of extraneous offenses is admitted under some one of the exceptions to the general rule rejecting this character of testimony, proof of the commission of other crimes than that for which the accused is being tried should be made the subject of a limiting charge. It is well established that when there is introduced evidence of another offense that might be improperly used against the accused, it is proper for the court to forestall such misuse of the evidence by an appropriate charge limiting the evidence to the purpose for which it was admissible. For example, where the defendant is charged with theft of a certain chattel, proof of the theft of other property should be appropriately limited by the charge of the court.”
“In a prosecution for possessing liquor for the purpose of sale, evidence of sales made prior to the date alleged in the indictment, being admissible only to show the purpose for which the defendant had the liquor that was found in his possession, should be limited in its use or effect to proof of this fact.’’ (Emphasis Supplied)

In Balleu v. State, 128 Tex.Cr.R. 375, 82 S.W.2d 146, where the appellant was charged with the possession of whiskey for the purpose of sale as this appellant, this Court said:

“The appellant within the time prescribed by law objected to the court’s main charge because it failed to instruct the jury that the testimony of the sale of whisky by the appellant prior to the 29th day of March was admitted for the purpose of showing, if it did show, the purpose of the appellant in having possession of the whisky found on his premises at the time alleged in the indictment. We are of the opinion that the court should have responded to the objection. The various sales of the whisky by the appellant prior to the 29th of March were separate, distinct, and extraneous offenses and were not admissible except to show the purpose for which, the appellant possessed the whisky, and the testimony should have been limited to that purpose.”

It should be observed further that Lane v. State, 111 Tex.Cr.R. 367, 12 S.W.2 1027 and Arcos v. State, 120 Tex.Cr.R. 315, 29 S.W.2d 395, cited in the original opinion, were decided prior to Balleu. Both of these cases upon further examination appear to be distinguishable from the case at bar.

In Lane v. State, supra, the indictment was presented against appellant in two counts, the first charging the unlawful transportation of spirituous liquor capable of producing intoxication, and the second charging the unlawful possession for the purpose of sale of such liquor. The jury was charged on both counts and the appellant was convicted under the first count. At the time Lane was arrested there was found in his possession a book with certain items listed thereon which tended to prove sales of whiskey.

It would appear that Lane is distinguishable from the case at bar because Lane, unlike the appellant in this case, did not object properly to the court’s charge and raised the question for the first time on appeal. In the second place, the evidence complained of in Lane was found on his possession at the time of his arrest. In the third place, the evidence complained of in Lane could not have been appropriated by the jury for an improper purpose such as bolstering the state’s only witness as in the rcase at bar.

In Arcos v. State, supra, the appellant was indicted for the murder of Joe Barrientes. The testimony reflected that the appellant killed two other men at the very same time that he shot and killed the deceased.

It would appear that Arcos is not controlling under the facts of the case at bar for several reasons. In the first place, Arcos plead guilty and it cannot be said that the evidence of the other killings occurring at the same time that Barrientes was killed could conceivably affect the jury verdict of guilty. In view of the appellant’s plea of guilty before a jury, the jury did not have to so find. Further, Arcos testified for the purpose of mitigating punishment that he was not motivated by malice, therefore taking sharp issue with the state’s theory that he was. Such is not the case at bar where the appellant offered no testimony at all. In Arcos the evidence of the other killings was shown to be res gestae and admissible as such. No limiting charge was required as to such res gestae evidence. Still further, the objection in Arcos was that the court’s charge should instruct the jury that in determining punishment they should not take into consideration the other two killings.

In our original opinion Moss v. State, supra, was also cited as authority for overruling appellant’s ground of error #4. Upon closer examination, however, it appears that the facts distinguish that case from the one at bar.

In Moss it should be observed that he, unlike the appellant in the case at bar, testified in his own behalf and admitted shooting his wife in December, 1961, for which offense he was charged in the indictment and also admitted shooting her earlier- in August, 1961. Further, the appellant Moss testified as to the extraneous offense that occurred in 1955. Both of the extraneous offenses therefore complained of were fully developed by the appellant himself and he offered character witnesses to controvert before the jury the state’s allegation of malice. Under the facts of the case here presented, it would not seem that Moss would be controlling with regards to the facts in the instant case.

The majority on rehearing tacitly acknowledges that the rule used to dispose of ground of error # 4 originally has no application, for they do not seek to sustain the affirmance on that basis but shift their attack to appellant’s timely presented written objection to the court’s charge.

The majority suggests that the objection did not point out what evidence was referred to as “in regard to ‘extraneous offenses.’ ” Sight is lost of the fact that there was only one state’s witness who related the extraneous offenses.

Article 36.14, V.A.C.C.P., serves a salutary purpose, but it was not designed or intended, however, as a device to prevent fair consideration on appeal of every overruled objection to the charge by allowing the appellate court to find every such objection did not “distinctly specify.” See this writer’s dissent in James v. State, Tex.Cr.App., 418 S.W.2d 513.

No particular form of objection has ever been prescribed. The accepted test applied to any objection made is whether or not the objection is sufficiently definite to make reasonably apparent to the trial judge the fault complained of when the charge complained of and the objection are considered together. Wiley v. State, 117 Tex.Cr.R. 449, 36 S.W.2d 495; Gill v. State, 84 Tex.Cr.R. 531, 208 S.W. 926.

In considering whether the fault was reasonably apparent to the trial judge at the very time of the objection what was said or not said in subsequent appellate briefs and arguments are not revelant.

When the accepted test is applied to the case at bar, it seems clear that it should have been reasonably apparent to the trial judge who had heard the facts just what defect the appellant had reference to.

In James v. State, 86 Tex.Cr.R. 598, 219 S.W. 202, this Court in construing the language of Article 735, C.C.P., the forerunner of present Article 36.14, said:

“The statute should not be given a construction so technical as to deny the right of review on appeal, where a substantial compliance is shown and its end practically accomplished.”

This Court only recently held that Articles 36.14 and 36.15, V.A.C.C.P., control over the provisions of Article 40.09, Sec. 4, V.A.C.C.P., concerning the effect of the certification of a transcription of the court reporter’s notes as to objections, etc. Smith v. State, Tex.Cr.App., 415 S.W.2d 206. We should not now construe Article 36.14, supra, so strictly that it will become almost impossible to make a proper objection to the court’s charge.

I simply cannot conclude from the record before us that the error of the trial court in failing to respond to appellant’s objection was harmless error or that there was no danger of the jury appropriating the extraneous offenses for an improper purpose.

In view of what has been said above and the additional cited by Judge Morrison in his original dissenting opinion, it is obvious that appellant’s motion for rehearing should be granted and the judgment reversed and remanded.

I dissent to the overruling of appellant’s motion for rehearing.

MORRISON, J., joins me in this dissent.


author: WOODLEY, Presiding Judge.

text:
    Vincent Walter YOUNG, alias Walter Crowder Young, Appellant, v. The STATE of Texas, Appellee.
    No. 41050.
    Court of Criminal Appeals of Texas.
    March 13, 1968.

      James H. Martin, Dallas, for appellant.
    Henry Wade, Dist. Atty., Douglas D. Mulder, John H. Stauffer, Malcolm Dade, Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is a companion case to that of Young v. State, Tex.Cr.App., 419 S.W.2d 864, in which appellant’s conviction for kidnapping an eleven year old girl was affirmed. This appeal is from a conviction for assault with intent to murder with malice upon the eight year old brother of the kidnapped girl, at the abandoned house referred to in the opinion in Young v. State, supra, with punishment assessed at 25 years.

The sole ground of error raises the contention that the evidence is insufficient to sustain the jury’s finding that the assault was committed with the specific intent to kill.

The evidence offered by the state as to the assault on the boy, including the testimony of his sister, the officers who found the boy in the abandoned house and the neuro surgeon who attended and operated on the boy, reflects that appellant struck the boy on the head with a hatchet several times, fracturing his skull and driving a piece of skull three by two inches in size into his brain at right angle to the surface, producing a great deal of laceration of the brain and destroying a part of the brain.

The medical testimony was to the effect that it would take a massive blow to inflict such wound and that the hatchet found on the kitchen floor, which was introduced in evidence, was compatible as a weapon with which the four separate lacerations were inflicted.

The doctor further testified that had it not been for the medical treatment the boy received he would have died and, in fact, it is a medical miracle that he lived.

We are in accord with the state’s suggestion that it was through no fault of appellant that the boy is still alive.

The ground of error is overruled and the judgment is affirmed.


author: ONION, Judge. MORRISON, Judge.

text:
    Johnny BANDA, Appellant, v. The STATE of Texas, Appellee.
    No. 41042.
    Court of Criminal Appeals of Texas.

      Feb. 7, 1968.
    On Appellant’s Motion to Reinstate Appeal March 13, 1968.

      Bonilla, De Pina, Read & Bonilla, by Pedro P. Garcia, Corpus Christi (On Appeal Only), for appellant.
    Thomas D. Blackwell, Dist. Atty., Jack Placke, Asst. Dist. Atty., Austin, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Rape; the punishment, assessed by the jury, 20 years.

Sentence was pronounced on March 30, 1967, and no notice of appeal was given within ten days thereafter as required by Article 44.08(c), Vernon’s Ann.C.C.P., nor does the record reflect that for good cause shown, the trial court permitted the giving of notice of appeal after the expiration of such ten days. See Article 44.08(e), V.A. C.C.P.

Appellant gave written notice of appeal on April 17, 1967. In his brief appellant acknowledges that he filed his notice of appeal belatedly, but contends that the trial judge by “an appropriate docket entry” permitted the notice of appeal, though not filed within the prescribed time. We fail, however, to find any such docket entry, any docket sheet or any other instrument in the record to indicate the trial court took such action.

If by oversight or omission the “appropriate docket entry” was not included in the record on appeal, it may now be forwarded to this Court under proper certification by the clerk at the time appellant files his motion to reinstate the appeal. See Gillispie v. State, 131 Tex.Cr.R. 13, 95 S.W.2d 695.

If the trial court did not permit the delayed notice of appeal as claimed by appellant, he may still do so for good cause shown.

The appeal is dismissed.

OPINION

ON APPELLANT’S MOTION TO REINSTATE APPEAL

MORRISON, Judge.

The record has been perfected, and the appeal is reinstated.

Appellant’s sole ground of error is that the trial court erred in allowing several of the State’s witnesses to testify as to the reputation and character of the appellant prior to the commission of the crime when appellant was a juvenile, in contravention of Art. 2338-1, Vernon’s Ann.Civ.St.

This question has been recently decided adversely to appellant’s contention. See Broadway v. State, Tex.Crim.App., 418 S.W.2d 679, at 682. We adhere to our holding in Broadway v. State, supra.

The judgment is affirmed.