author: JOHNSON, Justice.

text:
    HOUSTON SASH AND DOOR COMPANY, INC., Petitioner, v. Beatrice Elinor HEANER, Independent Executrix, et al., Respondents.
    No. B-7412.
    Supreme Court of Texas.
    Jan. 31, 1979.
    Rehearing Denied Feb. 28, 1979.

      Travis G. Wilson, M. R. Carr, Houston, for petitioner.
    Jefferson, Naness, Valdes & Mims, Carnegie H. Mims, Jr., Houston, for respondents.
   JOHNSON, Justice.

This is a case which presents a question of first impression — whether the charging of interest on an open account during the interest-free period specified in Article 5069-1.03 constitutes interest in excess of double that allowed by Article 5069-1.01, et seq., thereby subjecting the creditor to loss of principal, twice the interest charged, all other charges, and debtor’s reasonable attorneys’ fees as provided by Article 5069-1.-06(2). We hold that it does.

In this case the plaintiff creditor, Houston Sash and Door Company, sought recovery against a corporate debtor, Bedford Corporation, on its open account and against an officer of the corporation, John E. Heaner, who had guaranteed the corporation’s debt by written agreement. The defendants answered that plaintiff had charged and contracted for a usurious rate of interest in excess of double that allowed by law. Trial was to the court which rendered judgment for the plaintiff. The court of civil appeals reversed and remanded, agreeing with defendants that the transaction was usurious. 560 S.W.2d 525. We disagree in several respects with the courts below.

On May 31, 1973 John E. Heaner, Chairman of the Board of Bedford Corporation,, executed a letter agreement guaranteeing payment of all sums owed Houston Sash and Door Company by Bedford. Heaner also agreed to pay “interest from the due date of any [Bedford] account to the date of payment at the rate of 12% per annum.” Following the execution of this guaranty Bedford commenced purchasing building supplies and materials from Houston Sash on open account.

Between January 15, 1974 and March 28, 1974 Bedford established a debt in its account with Houston Sash in the amount of $13,575.73. When the account was not paid, Houston Sash filed suit in February 1975, naming Bedford and Heaner as defendants. Heaner died prior to trial and his estate was substituted as defendant.

At trial, the plaintiff called its credit manager who identified certain work orders, invoices, and statements of account pertaining to the supplies and materials sold Bedford on open account. Each invoice stated under “TERMS OF SALE” that interest at the rate of twelve percent per annum would be charged on all past-due accounts. The credit manager testified that accounts were past due after thirty days and that plaintiff, by separate invoice, charged its customers interest at that twelve percent rate. Among the records produced and identified by plaintiff’s credit manager were two interest invoices dated March 27,1974 and April 26,1974 reflecting and verifying that interest at the rate of twelve percent per annum had been charged on Bedford’s account. The records identified also included the March and April statements of account which incorporated the interest invoices as a part of the current balance of Bedford’s account.

In its second amended petition Houston Sash alleged that the debt amounted to $13,766.16. This amount, however, included not only the sums charged for goods sold to Bedford, but also the interest previously charged and recorded during the months of March and April 1974. Houston Sash additionally prayed for interest at six percent per annum, a rate referred to in the first part of Article 5069-1.03. The defendants filed a sworn denial of the account, alleged that plaintiff had charged usurious interest, and prayed that plaintiff be penalized as provided in Article 5069-1.06. The trial court, however, merely deducted from Bed-ford’s account the amount charged on the two interest invoices and rendered judgment against Bedford and Heaner’s estate, jointly and severally, in the amount of $13,-575.73. The judgment further recited that Houston Sash recover from Bedford the additional sum of $3,699.43.

Defendants appealed, contending that the trial court had erred in rendering judgment on the debt because Houston Sash had charged interest in excess of double that allowed by law and was therefore required to forfeit the principal, twice the amount of interest charged, and reasonable attorneys’ fees, all as provided by Article 5069-1.06(2). The court of civil appeals agreed, noting that Houston Sash had neither pleaded nor proved that Bedford had agreed to pay interest on its open account. The court of civil appeals determined that, in the absence of an agreed rate of interest, Houston Sash had authority to charge only the rate' of interest specified in Article 5069-1.03; that by virtue of the specific wording of that Article, Houston Sash was not authorized to accrue, charge, or collect any interest on the open account until January 1, 1975, and, after that date, was allowed a maximum rate of only six percent per an-num. The court of civil appeals, therefore, reversed the judgment of the trial court and remanded the cause, directing the trial court to determine defendants’ reasonable attorneys’ fees and then to render' judgment for defendants as provided by Article 5069-1.06.

In its first point of error Houston Sash complains that the court of civil appeals erred in holding that, in the absence of an agreement, a charge of interest on an open account during the calendar year in which the account is made constitutes the charging of interest in excess of double the amount allowed by law, subjecting the creditor to the penalties provided by Article 5069-1.06(2).

Houston Sash concedes that it charged interest on Bedford’s account at a time when it was not authorized to charge any interest. Houston Sash argues, however, that the charging of such interest falls within the scope of Article 5069-1.06(1) and not the more severe provisions of Article 5069-1.06(2). The more severe penalty specifies punishment for anyone who “. . . contracts for, charges or receives interest ... in excess of double the amount of interest allowed by this Subtitle.” Houston Sash contends that the “amount of interest allowed by this Subtitle” refers to the maximum rate of interest specified in the subtitle; L e., the ten percent per annum allowed by Article 5069-1.-02, and not the lesser rate of six percent per annum specified by Article 5069-1.03. Since a rate of interest greater than ten percent per annum is deemed usurious under Article 5069-1.02, Houston Sash maintains that a rate of interest below ten percent is not usury, but simply uncollectible. Houston Sash argues then that a creditor must charge interest in excess of ten percent before the penalty forfeiture prescribed by Article 5069-1.06(1) applies and must charge interest in excess of twenty percent before the penalty forfeiture prescribed by Article 5069-1.06(2) applies.

In support of its interpretation of Article 5069-1.06, Houston Sash offers Bruner v. Republic Supply Company, 416 F.2d 763 (5th Cir.1969), and Carder v. Knippa Mercantile Co., 1 S.W.2d 462 (Tex.Civ.App.—San Antonio 1927, writ dism’d). Bruner and Carder, however, interpret former statutes replaced by the present subtitle and are of little value. While the former statutes are similar to the present subtitle in some respects, a comparison reveals that the Legislature substantially modified the penalties applied to usurious transactions. The predecessor to Article 5069 includes no provision comparable to Article 5069-1.06.

Bedford, on the other hand, argues that the interest rate specified in Article 5069-1.03 clearly applies to its open account because Houston Sash neither pleaded nor proved an agreement regarding interest. Article 5069-1.03 allows a maximum rate of interest of six percent per annum. The Article, however, makes no provision for interest during the calendar year in which an open account is made. Since Houston Sash charged interest on Bedford’s account during the interest-free period specified in Article 5069-1.03, Bedford argues that Houston Sash is subject to the penalty prescribed by Article 5069-1.06(2). Under Bedford’s interpretation of the subtitle, any rate of interest is in “excess of double the amount of interest allowed by this Subtitle” if charged at a time when no interest whatever is allowed.

A resolution of this first point requires a consideration of the basic usury laws of this state. Article 16, Section 11, of the Texas Constitution, as amended November 8,1960, authorizes the Legislature to “define interest and fix maximum rates of interest.” The Texas Constitution makes no attempt to define “usury,” but merely states that in the absence of legislation, “all contracts for a greater rate of interest than ten per centum (10%) per annum shall be deemed usurious.”

Pursuant to the Constitution, the Legislature enacted Article 5069-1.01, et seq., effective October 1, 1967, in which it defines “interest” and “usury,” fixes various maximum rates of interest, and prescribes penalties for those engaging in “usurious” transactions. Although the subtitle defines “usury,” the term is not found in the penalty provisions and appears in only one other Article in the subtitle. Instead, the penalty forfeitures are conditioned upon contracting for, charging, or receiving interest “which is greater than the amount authorized ” by the subtitle or “which is in excess of double the amount of interest allowed ” by the subtitle. [Emphasis added.] Our immediate concern then is not a determination of the amount of interest constituting “usury” or “double usury,” but rather the amount of interest the subtitle authorizes or allows.

An examination of the subtitle reveals that the amount of interest “allowed” or “authorized” depends upon the facts and circumstances attending the credit transaction. Article 5069-1.02 declares that “the maximum rate of interest shall be ten percent per annum,” except as otherwise authorized by law. The application of this ten percent rate, however, depends upon proof that the obligor has agreed to pay such rate. When the obligor has not agreed to a specific rate of interest. Article 5069-1.03 fixes six percent per annum as the maximum rate of interest allowed. Article 5069-1.03 then differentiates between debts incurred on “written contracts” and debts incurred on “open accounts.” The Article is quite specific that the six percent rate allowed on written contracts is to begin “from and after the time when the sum is ■ due and payable.” Equally specific is the provision which follows, applicable to open accounts and the date when such interest is allowed to begin on them, it being “from the first day of January after the same are made.” The Article clearly permits no interest on open accounts during the calendar year in which the account is made.

It is undisputed that Houston Sash charged interest on Bedford’s account during the calendar year in which it was made. It is also apparent that the interest charged (twelve percent) is in excess of double the amount allowed by Article 5069-1.03; i. e., in excess of twice zero. Houston Sash is, therefore, subject to the penalty forfeiture prescribed by Article 5069-1.06(2). Accordingly, we are in agreement with that portion of the judgment of the court of civil appeals which pertains to defendant Bed-ford.

There remains the question of whether the court of civil appeals erred in failing to distinguish between the defendants, Bed-ford and Heaner. Houston Sash contends in its second point of error that the suit against Heaner was based on his written contract and not on Bedford’s open account. Heaner was not a co-obligor on the open account. Instead, by written contract Heaner guaranteed payment of Bedford’s account. Houston Sash argues that Article 5069-1.04 governs the written guaranty. We agree.

Article 5069-1.06 provides in plain language that the prescribed penalties be forfeited “to the obligor.” Such language evidences the Legislature’s intent that the usury defense remain personal to the debt- or. Since statutes of a penal nature are to be strictly construed, the penalty forfeitures provided in Article 5069-1.06 are restricted to the immediate parties to the transaction creating the usury defense. Micro a, Inc. v. Eureka Life Ins. Co. of Amer., 534 S.W.2d 348 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n. r. e.).

The subtitle, furthermore, does not declare the underlying open account transaction void, but merely provides Bed-ford a defensive setoff. Wall v. East Texas Teachers Credit Union, 526 S.W.2d 148, 151 (Tex.Civ.App.—Texarkana 1975), rev’d on other grounds, 533 S.W.2d 918 (Tex.1976). It is only where the underlying obligation is' void for illegality that a guaranty must fall with it. National City Bank v. Taylor, 293 S.W. 613 (Tex.Civ.App.—Texarkana 1927, no writ). Heaner’s guaranty agreement, therefore, is not dependent on the vitality and force of the underlying account. Beddall v. Reader’s Wholesale Distributors, Inc., 408 S.W.2d 237 (Tex.Civ.App.—Houston 1966, no writ). Further, a judgment against Bedford is not a prerequisite to Heaner’s liability because he expressly waived any requirement that Houston Bash first procure judgment against Bedford. Heaner’s estate, therefore, remains liable on his absolute guaranty.

Since Heaner is an obligor only under his written guaranty, we hold that his estate may not interpose Bedford’s usury defense. We further hold that the interest rate specified in Article 5069-1.04 applies to the guaranty. That Article allows the parties to a written contract to agree to a maximum rate of interest of ten percent per annum. The guaranty agreement, however, provides for an interest rate of twelve percent per annum on all sums due Houston Sash from Bedford. A written contract which provides for a rate of interest greater than ten percent per annum, except as otherwise authorized by law, is subject to the appropriate penalty prescribed in Article 5069-1.06. Houston Sash, therefore, contracted for a rate of interest “greater than the amount authorized by this Subtitle” and, accordingly, is liable for the penalty prescribed in Article 5069-1.06(1).

That portion of the judgment of the court of civil appeals which pertains to defendant Bedford is affirmed. That portion of the judgment of the court of civil appeals which pertains to defendant Heaner’s estate is reversed and remanded to the trial court for entry of judgment in favor of Houston Sash, less an offset to Heaner’s estate of twice the amount of interest contracted for, and for a determination by the trial court of the amount of attorneys’ fees for which Houston Sash is also liable.

GREENHILL, C. J., and BARROW, J., concur in the result.

      . This and all other statutory references are to the Texas Revised Civil Statutes Annotated.

      . The invoice provides under “TERMS OF SALE” that payment is due “30 DAYS AFTER THE 1ST OF THE MONTH FOLLOWING DATE OF SHIPMENT.”

      . Article 5069-1.03 provides:
      “When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all written contracts ascertaining the sum payable, from and after the time when the sum is due and payable; and on all open accounts, from the first day of January after the same are made.”

      . Article 5069-1.06(1) and (2) provides:
      “(1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest contracted for, charged or received, and reasonable attorney fees fixed by the court provided that there shall be no penalty for a violation which results from an accidental and bona fide error.
      “(2) Any person who contracts for charges or receives interest which is in excess of double the amount of interest allowed by this Subtitle shall forfeit as an additional penalty, all principal as well as interest and all other charges and shall pay reasonable attorney fees set by the court; provided further that any such person violating the provisions of this section shall be guilty of a misdemeanor and upon conviction thereof shall be punished by fine of not more than One Thousand Dollars. Each contract or transaction in violation of this section shall constitute a separate offense punishable hereunder.”

      . Although not identified in the judgment, this sum apparently represents a recovery of interest from January 1, 1975 to the date of judgment.

      . The court of civil appeals stated: “There was no agreement plead or proved by plaintiff whereby Bedford would pay a rate of interest on its open account with Houston Sash in excess of 6%.” 560 S.W.2d 525 at 526.

      . Article 5069-1.02 provides:
      “Except as otherwise fixed by law, the maximum rate of interest shall be ten percent per annum. A greater rate of interest than ten percent per annum unless otherwise authorized by law shall be deemed usurious. All contracts for usury are contrary to public policy and shall be subject to the appropriate penalties prescribed in Article 1.06 of this Subtitle.”

      . See Historical Notes to Articles 5069-1.01, 5069-1.03, and 5069-1.06.

      . Article 5069-1.02 provides in part: “All contracts for usury are contrary to public policy and shall be subject to the appropriate penalties prescribed in Article 1.06 of this Subtitle.”

      . As early as 1974, the Office of Consumer Credit Commissioner issued opinion letters to members of the Texas Retail Merchants Association and other interested parties warning them of this problem. The letter stated that there was no statutory authorization for charging one percent or one and one half percent per month as late charges on open accounts, quoted the provisions of Articles 5069-1.03 and 5069-1.04, and concluded with the following warning: “The penalties for violation of the provisions of Article 5069 are substantial, and any retailer who is assessing a finance charge on open accounts should closely examine his business procedures.”

      . Article 5069-1.04 provides:
      “The parties to any written contract may agree to and stipulate for any rate of interest not exceeding ten percent per annum on the amount of the contract; and all other written contracts whatsoever, except those otherwise authorized by law, which may in any way, directly or indirectly, provide for a greater rate of interest shall be subject to the appropriate penalties prescribed in this Subtitle.”


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Albert MINJARES, Appellant, v. The STATE of Texas, Appellee.
    No. 55447.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 6, 1978.

      Dick Stengel, El Paso, for appellant.
    George N. Rodriquez, Jr., County Atty., and William B. Crout, Asst. County Atty., El Paso, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for terroristic threat. Y.T.C.A., Penal Code, Section 22.07. Punishment was assessed at 180 days’ imprisonment.

Appellant’s first ground of error complains of the trial court’s allowing the appellant to act as his own attorney when there was evidence that the appellant desired an attorney and was indigent. The record reflects that the appellant made a $1500.00 bond on March 19, 1976. On July 13, 1976, the appellant appeared by himself and waived arraignment. On August 16, 1976, appellant again appeared without counsel at the court’s pretrial conference. On August 16, 1976, appellant indicated that he could not afford an attorney and was told that he better get a lawyer. He indicated that he tried to obtain a lawyer but that they charged him too much. However, he indicated that he only saw one attorney. He understood at all times that trial was set for November 30 and made no further effort to obtain a lawyer. It was further established that the appellant was employed and earned approximately $82.00 per week. He lived at the home of his parents and had no dependents to support. Appellant was 26 years of age. The court found that the appellant was not entitled to appointed counsel and that he would have to proceed as his own attorney in light of his failure to secure representation before trial commenced. The trial court proceeded to explain various aspects of the trial procedures to the appellant. The record further reflects that the trial court interrupted the prosecutor several times when he attempted to elicit hearsay and when he was making inappropriate arguments to the jury. The appellant conducted some cross-examination of the witnesses, presented his own witness, and argued to the jury only at the punishment phase of the trial.

Although no attorney was appointed as amicus curiae and there was no express refusal to execute an affidavit of indigency by the appellant, we conclude that Harriel v. State, Tex.Cr.App., 572 S.W.2d 535 (1978), is sufficiently in point to defeat appellant’s claim. Although Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), requires the trial court to inform a defendant who refuses the assistance of counsel of the practical consequences of such refusal before a waiver can be knowing and intelligent, it does not address the situation, such as this, where the appellant fails to obtain the assistance of counsel when provided adequate opportunity. A criminal defendant cannot obstruct the orderly administration of justice by neglecting his obligations. See Parker v. State, Tex.Cr.App., 545 S.W.2d 151; Rodriguez v. State, Tex.Cr.App., 530 S.W.2d 944; White v. State, Tex.Cr.App., 496 S.W.2d 642. The trial court’s conclusion that the appellant was not indigent under the facts of this case is not erroneous and is supported by the evidence. Appellant’s failure to obtain counsel when provided adequate opportunity to do so constitutes a waiver under the facts of this case. Appellant’s first ground of error is overruled.

Appellant’s second ground of error complains that the prosecutor’s argument at the guilt and innocence stage of the trial was fundamentally and reversibly erroneous because of its prejudicial and inflammatory nature. We disagree. At the outset, we note that the ground of error is multifarious. See Article 40.09(9), V.A.C.C.P. Further, no objection was interposed to any argument made by the State. Even pro se litigants are subject to applicable rules of procedure. Without an objection nothing is preserved for review. Finally, all the comments of the prosecutor were reasonable deductions from the evidence. See Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230. Appellant’s second ground of error is overruled.

Appellant’s remaining three grounds of error concern the prosecutor’s argument at the punishment phase of the trial. Again, appellant’s third ground of error is multifarious. Also, without objection, nothing is preserved for review. Finally, the State’s arguments were fair deductions from the evidence. Furthermore, the solicitous trial court shut off the prosecutor’s argument when he did attempt to go beyond the record. Any error was therefore rendered harmless. Appellant’s third ground of error is overruled.

Appellant’s fourth ground of error complains of the prosecutor’s comment on the appellant’s failure to testify. Appellant’s references to the comments by the prosecutor show that they were not referring to the appellant’s failure to testify in this case. They were fair deductions from the evidence or were in direct response to the appellant’s argument to the jury at the punishment stage. Alejandro v. State, supra. The prosecutor’s additional comment about the exclusion of evidence was timely interrupted by the trial court and the instruction to the jury by the trial court to disregard that statement cured any error. Appellant’s fourth ground of error is overruled.

Appellant finally complains of the prosecutor’s argument requesting the jury to give the maximum possible penalty, including a fine, in order to aid in paying the costs of the trial. We conclude that the argument was a fair deduction from the evidence and a proper plea for law enforcement and was therefore not error. See Alejandro v. State, supra. Further, we note that no fine was assessed by the jury and must conclude that any error was clearly harmless.

There being no reversible error, the judgment is affirmed.


author: DOUGLAS, Judge,

text:
    Denny CALVIN, Appellant, v. The STATE of Texas, Appellee.
    No. 53829.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 13, 1978.
    Neal Wheeler, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John H. Hagler and Greg Davis, Asst. Dist. Attys., Dallas, for the State.
   DOUGLAS, Judge,

concurring in part and dissenting in part.

The opinion adopted by the majority reaches the right result, but it should be published. This cause should be affirmed because a 12-inch blade knife as used in this case to cut another in the stomach is a deadly weapon as defined in V.T.C.A., Penal Code, Section 1.07(a)(ll)(B), which defines a deadly weapon as “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”

The majority refuses to publish the opinion so that it can be compared by everyone with Harris v. State, 562 S.W.2d 463 (Tex. Cr.App.1978). In that case the defendant, during a robbery, stated that he had a knife and made a slashing motion at another’s throat. An officer saw the slashing movement. The injured party in that case was cut on his throat and suffered other injuries from the knife. Harris was arrested shortly thereafter with a four-inch blade knife in his pocket. The majority reversed because there was no proof offered that the weapon could produce serious bodily injury or death. In Harris, the Court should not have required proof that a four-inch blade knife used to slash at a throat was a deadly weapon. Is it not more dangerous for one to slash at and cut another’s throat with a four-inch blade knife than to cut into one’s stomach with a twelve-inch blade knife? Which is more likely to produce death? An average size neck is about four or five inches in diameter. It does not take a doctor to know that a cut or stab less than an inch deep in the neck is capable of producing death.

There was no testimony in the present case that the knife used to cut into the stomach was capable of producing serious bodily injury or death. No such proof should be required in either case. There was no testimony in the present case that serious bodily injury was caused.

The majority apparently takes judicial notice of serious bodily injury, but not that a twelve-inch blade knife used to cut into another’s stomach is capable of producing serious bodily injury. To be consistent with the Harris ease the majority should hold that proof should be required to show that the cut to the stomach caused serious bodily injury. It should not take judicial notice that an injury is serious and not take judicial notice that slashing at one’s throat in a robbery attempt with a four-inch blade knife is capable of producing serious bodily injury. If the cut in the stomach in the present case is a serious bodily injury by common knowledge to the majority, why cannot common knowledge be applied in situations like the Harris ease, that one can cause serious bodily injury or death by slashing another’s throat with a knife?

The majority should explain why it takes judicial notice of one thing that is common knowledge and not another.

The Harris case and Danzig v. State, 546 S.W.2d 299 (Tex.Cr.App.1977), should be overruled.

This cause was submitted to the jury on the theory alleged in the indictment that appellant exhibited a deadly weapon, a knife to commit robbery. It was not submitted on the theory that he caused bodily injury.

VOLLERS, J., concurs in this opinion.


author: DALLY, Judge.

text:
    Gilberto Ortega GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 59404.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Jan. 10, 1979.
    Rehearing En Banc Denied March 7, 1979.

      John J. C. O’Shea, Lubbock, for appellant.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from an order revoking probation. The appellant was convicted for possession of more than four ounces of marihuana. The punishment assessed was imprisonment for three years; the imposition of sentence was suspended and the appellant was granted probation.

The trial court revoked appellant’s probation and pronounced sentence after finding that the appellant had possessed more than four ounces of marihuana in violation of a condition of his probation that he commit no offense against the laws of this State.

The appellant challenges the validity of two search warrants used by police officers who searched his residence and seized over forty marihuana plants. The officers obtained the two search warrants at the same time from the same magistrate. One warrant purported to authorize a search for alcoholic beverages possessed for the purpose of unlawful sale and the other a search for drugs and dangerous drugs unlawfully possessed. Both relied on information supplied by an unnamed informer. Appellant contends that the warrant for alcoholic beverages is defective because the affidavit upon which it is based fails to satisfy the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and contains false statements made by the affiants. He contends that the warrant for drugs or dangerous drugs is defective because it is a constitutionally proscribed general warrant; it fails to satisfy the second requirement of Aguilar, supra; and it contains false statements made by affiants. Appellant also contends that even if the drug warrant is valid, the search is irreparably tainted by the defective alcoholic beverages warrant.

We agree with appellant that the warrant for alcoholic beverages is invalid. The affidavit for that warrant does not state when the officers received the information from their informer nor when the informer obtained his information that alcoholic beverages were kept on the appellant’s premises for the purpose of unlawful sale. In order to support the issuance of a search warrant the affidavit must show that the act or event upon which probable cause is based occurred within a reasonable time prior to the making of the affidavit. Hall v. State, 171 Tex.Cr.it. 227, 347 S.W.2d 262 (1961); 37B Tex.Jur., Searches and Seizures, Sec. 12, p. 461 and cases there cited. As no such showing was made in the affidavit used to obtain the search warrant for alcoholic beverages, that warrant is invalid.

The lawfulness of the seizure of marihuana, then, depends on the validity of the other search warrant. The appellant initially asserts that the warrant is insufficient because it is a general warrant not meeting constitutional requirements.

The Fourth Amendment to the Constitution of the United States provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (Emphasis added.)

Art. I, Sec. 9 of the Constitution of this State provides:

“The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.” (Emphasis added.)

The affidavit which supports and which is incorporated in the search warrant in question describes the things to be seized as “. . . drugs or dangerous drugs . being unlawfully kept and possessed . . ” If this description is found to be unconstitutionally vague or “general” under the particularity of description requirements above, the warrant must be held invalid.

The United States Supreme Court has held that the Fourth Amendment prohibits general warrants which fail to particularly describe the property to be seized, and allow “general, exploratory rummaging in a persons’s belongings.” Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976), quoting from Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The reason for this requirement was aptly stated in Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927):

“The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.”

And see Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965).

The requirements for a sufficiently particular description can vary according to the thing being described. Books, papers, records, and documents; i. e., those things subject to First Amendment concerns, must be described with greater particularity than other things. In Stanford v. Texas, supra, the description “. . . books, records, pamphlets, cards, receipts, lists, memoran-da, pictures, recordings and other written instruments concerning the Communist Party in Texas” was found to be “unconstitutionally intolerable.” See also Marcus v. Search Warrant, 367 U.S. 717, 731, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). At the same time, however, the Supreme Court in Stanford stated that it did not decide whether the description would have been too general had the things been weapons, narcotics, or “cases of whiskey.” The latter description was upheld as sufficiently particular in Steele v. United States, 267 U.S. 498, 504, 45 S.Ct. 414, 69 L.Ed. 757 (1925).

In reviewing federal cases and cases from this State and other states, it can generally be said that papers, books, records, etc., and property alleged to be stolen must be described more specifically than unlawfully possessed liquor and controlled substances. The papers, books, records, etc., necessitate a particular description because they are subject to stricter scrutiny under the First Amendment. The rule that stolen property should be described more particularly than liquor or controlled substances follows from the notion that if the search is for specific property, that property should be described so as to preclude the possibility of seizing something different; whereas in a search for property of a specified character which by reason of its character is illegal, such a specific description is unnecessary and ordinarily impossible. See Cornelius on The Law of Search and Seizure, Sec. 122, p. 331-332; 79 C.J.S. Searches and Seizures § 81c, p. 895 and the cases there cited; Cagle v. State, 147 Tex.Cr.R. 354, 180 S.W.2d 928 (1944); People v. Prall, 314 Ill. 518, 145 N.E. 610 (1924).

Applying this reasoning, the United States Court of Appeals for the First Circuit recently held that “certain 8-track electronic tapes and tape cartridges which are unauthorized ‘pirate’ reproductions” was an overbroad description offering no guidance to officers as to which tapes were pirated, or how the “pirate” tapes were to be differentiated from the legitimate tapes. United States v. Klein, 565 F.2d 183 (1st Cir. 1977). The California Court of Appeals has held that the designation “stolen property” is too general, Thompson v. Superior Court of Tulare County, 70 Cal.App.3d 101, 138 Cal. Rptr. 603 (1977), as is “merchandise stolen,” Lockridge v. Superior Court, 275 Cal.App.2d 612, 80 Cal.Rptr. 223 (1969). And see the cases cited in 68 Am.Jur.2d, Searches and Seizures, Sec. 82, p. 736.

On the other hand, the generic description “intoxicating beverages” is usually held sufficiently particular for a warrant for alcoholic beverages. See Steele v. United States, supra; Parrack v. State, 154 Tex.Cr.R. 532, 228 S.W.2d 859 (1950); Lea v. State, 181 Tenn. 378, 181 S.W.2d 351 (1944); State v. Nejin, 140 La. 793, 74 So. 103 (1917); Cornelius on The Law of Search and Seizure, See. 122, p. 332.

Regarding controlled substances, the term “narcotics paraphernalia” has been held sufficiently particular, People v. Henry, 173 Colo. 523, 482 P.2d 357 (1971), as has “a quantity of loose heroin,” United States v. Tucker, 262 F.Supp. 305 (S.D.N.Y.1966). Contrary to the general rule (see 68 Am.Jur.2d, Searches and Seizures, Sec. 82, p. 736), courts have also upheld the seizure of controlled substances and dangerous drugs under warrants whose descriptions make statutory references. Compare, e. g., Ex parte Gomez, 389 S.W.2d 308 (Tex.Cr.App.1965), cert. denied 386 U.S. 937, 87 S.Ct. 958, 17 L.Ed.2d 810 (1967) (“Narcotic Drugs and Narcotic Paraphernalia unlawfully possessed in violation of the Uniform Narcotic Drug Act, being Article 725b of Vernon’s Annotated Penal Code, State of Texas.”); People v. Leahy, 173 Colo. 339, 484 P.2d 778 (1970) (“any and all narcotics and dangerous drugs as defined by the applicable Colorado Statutes, the possession of which is illegal.”); People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970); (“Marijuana, (Cannabis Sativa L.) Dangerous Drugs, Stimulant Drugs, and Hallueinogenics, as defined in House Bill # 1021 . . .”); and State v. Hamilton, 236 N.W.2d 325 (Iowa, 1975) (“any and all controlled substances as defined in [Chapter] 205 of the 1973 Code of Iowa.”).

Generic descriptions without express statutory references have also been approved: State v. Quintana, 87 N.M. 414, 534 P.2d 1126 (N.M.App.1975) (“any and all controlled substances which may be kept there contrary to law.”); State v. Stewart, 129 Vt. 175, 274 A.2d 500 (Vt.1971) (“contraband, to wit, regulated drugs.”); State v. Salinas, 18 Wash.App. 455, 569 P.2d 75 (1977) (“controlled substances known as scheduled and legend drugs.”) These descriptions, although they do not make explicit reference to controlled substances statutes, nevertheless limit their scope to substances contained within the statutes by specifying that the substances sought are “controlled substances,” “regulated drugs,” and “scheduled and legend drugs.” These are implicit statutory references. The New Mexico Court of Appeals acknowledged this in State v. Quintana, supra, at 534 P.2d 1130:

“The words, ‘controlled substances . contrary to law’, used in the warrant have a definite meaning in that they refer to certain and definite lists of drugs and their derivatives. Nothing was left to the discretion of the Officers. They were commanded to seize any of the items on those lists present on the premises contrary to law, nothing else. Heroin is one of the drugs listed, and it was heroin that the officers seized.”

The description in this case, “drugs or dangerous drugs . . . unlawfully kept and possessed,” is similar to the latter class of descriptions, although it is not expressed specifically in terms of “controlled substances” or “dangerous drugs” as defined and listed in the Controlled Substances Act of this State. It also includes the general term “drugs,” which is not defined in the act. However, the description is limited to drugs or dangerous drugs “unlawfully kept or possessed,” which achieves the same result of limiting the scope of the search to drugs which cannot be lawfully possessed in this State. Such drugs are listed and defined in the Controlled Substances Act. Thus the warrant in this case leaves no more to the discretion of the searching officers than the warrant approved in State v. Quintana, supra, or the other warrants whose descriptions make implicit statutory references.

We conclude that the warrant for drugs or dangerous drugs in this case is not a general warrant in contravention of the Fourth Amendment to the Constitution of the United States and Art. I, Sec. 9 of the Texas Constitution. The trial court did not err in admitting the marihuana seized.

Appellant contends that the affidavit for the search warrant for drugs fails to state sufficient facts for a neutral magistrate to determine that the affiant correctly concluded that his informer was credible or his information reliable, as required by Aguilar, supra. The affidavit reads in part: “Affiant has received information from said reliable and credible informant, on previous occasions and such information has proven to be true and correct.” Appellant urges that the affiant does not specify the type of information received, or state that the informer has been used in similar drug seizure cases before. Such specific information is not required, however; when an unnamed informer is relied upon, his credibility can be established under Aguilar by alleging that the informer has proven reliable on prior occasions. Avery v. State, 545 S.W.2d 803 (Tex.Cr.App.1977); Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1975); Morgan v. State, 516 S.W.2d 188 (Tex.Cr.App.1974); Hegdal v. State, 488 S.W.2d 782 (Tex.Cr.App.1972). And see Gonzales v. Beto, 425 F.2d 963, 968 (5th Cir. 1970), cert. denied, 400 U.S. 928, 91 S.Ct. 194, 27 L.Ed.2d 189 (1970). The allegation in this affidavit is sufficient.

Next, appellant contends that the search in his case was based on the “combined authority” of both the alcoholic beverages and drug warrants, and that the partial reliance on the defective alcoholic beverages warrant renders the search and subsequent seizure of marihuana invalid. The record indicates that the warrants were issued simultaneously, and the two officers who obtained the warrant testified that they relied on and were mainly concerned with the drug warrant. The information the officers obtained from the informer concerned marihuana, not alcohol; the officers testified that they only wanted the alcoholic beverages warrant so they would be “covered” in case appellant possessed alcoholic beverages unlawfully for sale, as he had in the past. This evidence establishes that the drug warrant was independently issued and was not based on the alcoholic beverages warrant. The search for and seizure of the marihuana was carried out under the exclusive authority of the drug warrant, not under the combined authority of both warrants as appellant suggests.

Appellant attacks the validity of the drug warrant on the basis that the accompanying affidavit contains “knowingly made false statements.” Appellant points to no statement in the affidavit which he believes to be false. He asserts that one affiant’s swearing to the facts in the affidavit is an untruth because the affi-ant never actually conversed with the informer, but signed the affidavit on the basis of information received from the other affiant. The affidavit is not rendered invalid because the other affiant also swore to the facts, as evidenced by his signature. One signature under oath is sufficient to comply with the requirement that the affidavit be sworn to before the magistrate. Art. 15.03, V.A.C.C.P.; Barnes v. State, 504 S.W.2d 450 (Tex.Cr.App.1974).

Appellant’s final contention is that the application of the rule that the courts of this State will not go behind the allegations in an affidavit accompanying a search warrant denies him equal protection of the laws under the Constitution of the United States. He asserts that the rationale for the rule is to protect the identity of informers and that in this case he was not attempting to reveal the informer’s identity. Appellant cites no authority, and in view of the facts in this case, we overrule this ground of error.

The judgment is affirmed.


author: W. C. DAVIS, Judge. TOM G. DAVIS, Judge. CLINTON, Judge.

text:
    Floyd J. DANIEL, Appellant, v. The STATE of Texas, Appellee.
    No. 54337.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Jan. 24, 1979.
    Rehearing Denied June 7, 1978.

      Werner A. Gohmert, Alice, for appellant.
    Arnold R. Garcia, Dist. Atty. and Rolando Rene Ramirez, Asst. Dist. Atty., Alice, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

After a trial by a jury, appellant was convicted of Involuntary Manslaughter, V.T.C.A., Penal Code, Section 19.05(a)(2). The jury assessed punishment at four years imprisonment in the Texas Department of Corrections. We affirm.

Appellant urges four grounds of error including the insufficiency of the evidence, in particular, that “there is no evidence of accident and (sic) mistake arising from any intoxication of the defendant.”

The elements necessary to establish the offense of involuntary manslaughter are that: (1) the defendant; (2) operated a motor vehicle; (3) while intoxicated; (4) by accident or mistake; (5) caused the death of an individual; and (6) defendant’s intoxication caused the death.

The words “mistake” and “accident” as used in the statute mean “unintentional” and are often used in connection with each other and are interchangeable. Thomason v. State, 388 S.W.2d 700 (Tex.Cr.App.1964).

We are mindful, as was stated in Long v. State, 152 Tex.Cr.R. 356, 214 S.W.2d 303 (1948) and quoted in Spraglin v. State, 169 Tex.Cr.R. 470, 334 S.W.2d 798 (1960) (dissenting opinion), that:

“Intoxication at the time and proof by the State or finding by the jury under the court’s instruction, that there was a death will not in that abstract form support a conviction. The death must be the result of the intoxication and proof must be made and submitted to the jury of that thing which worked a causal connection between the intoxication and the death.” (Emphasis added)

In reviewing the sufficiency of the evidence, we will construe the evidence in a light most favorable to the verdict. Rogers v. State, 550 S.W.2d 78 (Tex.Cr.App.1977); Spraglin, supra.

On May 9,1975, at approximately 9:00 p. m., a two-car minor accident occurred on U.S. 281, just north of Alice. One of the vehicles involved came to rest, perpendicular to, and blocking the right lane of the double north lane of the highway. The night was dark. There was a blinking yellow light and a street light in the vicinity. District Attorney Investigator Torres was first to arrive at the accident scene and began to direct traffic on the highway in front of the blocking automobile. Jackson, the deceased, a bystander, spoke with Torres there. The investigator had a flashlight. Jackson was dressed in a gray work uniform. Torres noticed that the blocking vehicle was not lighted. He turned and proceeded toward the car to attempt to turn on its lights and as he did, appellant’s pickup truck, traveling in the right-hand lane, struck the deceased, hurling him over the disabled automobile and to the pavement some 20 to 25 feet over the car. The investigator testified that the appellant’s pickup did not have its lights on. This was controverted by the appellant.

Alice Police Sgt. Barrera and Department of Public Safety Tro per Barrett stated that in their opinion the appellant was intoxicated. Barrett estimated that from his examination of the 80 feet 8 inch skid marks, 52 feet 6 inches of which were to the point of impact, the appellant had been traveling approximately 30 miles per hour. In regard to the skid marks, he further testified on re-direct examination:

“A. It was a medium grade of skid mark. It wasn’t dark, yet it wasn’t light.
“Q. What would that indicate to you as to the type of brake pressure? Was it a panic stop, or just a slowdown type of thing, or some place in between, or what?
“A. It would have to be between a slow down and a panic. It would have to be between this. It acted as if it wasn’t certain what type of stop he wanted to make.
“Q. But it was not a panic stop type?
“A. No, sir, it was not.”

On direct and cross-examination, the appellant admitted that he never saw the deceased, who, it was stipulated, stood five feet, ten inches tall, and weighed 480 pounds:

“Q. But it’s your testimony that you never saw him?
“A. That’s the positive, actual truth. If I had seen the man or any other human, I would have tried everything possible.
“Q. I understand that. But you know you hit something?
“A. Yes.
“Q. But you don’t know what?
“A. Well, what it was, I thought it was a car.
“Q. But you really don’t know for sure? “A. That parked car; you know.
“Q. But you don’t know for sure what you hit?
“A. Well, I don’t know for sure. I didn’t know what it was. All I know, I was driving, was putting my brakes on, and trying to dodge this parked car.”

The tentative skid marks, driving without lights, and the failure to ever see the five feet, ten inch, 480 pound deceased, though traveling at an estimated speed of 30 miles per hour, is sufficient evidence which could support a finding by the jury of a causal connection between the appellant’s intoxication and Jackson’s death.

Ground of error three is overruled.

In ground of error one, the appellant contends that the trial court erred by refusing his requested charge on Causation, V.T.C.A., Penal Code, Section 6.04(a). There was no evidence that any conduct but the appellant’s resulted in the death. The charge on the law of causation would have been inapplicable; and, therefore, was properly refused. Article 36.14, Vernon’s Ann.C.C.P.

Appellant’s argument under ground of error one though purporting to support his 6.04(a) Causation contention, seems actually to be directed to the lack of causal connection of intoxication and death, which we addressed in overruling ground of error three, supra. Although not elaborate, the jury was properly instructed as to the necessity of the latter causal issue:

“ . . ., when operating a motor vehicle while intoxicated, did by reason of such intoxication, cause the death of an individual, to-wit: . . .” (Emphasis added)

There is also language in the appellant’s argument that the contributory negligence of either the deceased, or the parties involved in the precedent accident, would absolve him. This contention was met in Fox v. State, 145 Tex.Cr.R. 71, 165 S.W.2d 733 (1942), a prosecution for murder without malice under the old Penal Code, Article 802(c), now V.T.C.A., Penal Code, Section 19.05(a)(2), wherein, after stating that generally the defense of contributory negligence was not available in a criminal case, we added:

“While contributory negligence is no defense in such a case, the rights of the defendant are amply protected in the holding that the conduct of the deceased may be considered to determine whether the defendant’s unlawful act was the cause of the death, or to determine whether or not the defendant was negligent.”

In this regard, the charge properly instructed the jury as to the bare, applicable law. There was no objection to the lack of elaboration of the causal intoxication-death issue; apparently, it met with appellant’s approval, although we perceive an apparent confusion as to the term “causation.”

Appellant’s first ground of error is overruled.

In ground of error two, appellant complains of the exclusion of the probation officer’s testimony at the punishment stage of trial. He cites no authority.

Appellant’s response to the State’s relevancy objection is a good summary of his bill of exception:

“MR. GOHMERT: Your Honor, by this witness I propose to prove that Jim Wells County has a functioning probation department. That it has functioned here over ten years; that they in fact do supervise probationers and that they do check on them; that the probationers are required to report to them, and that this probation officer does look after the people to see that they obey the terms of their probation, and also, that this is one way that Jim Wells County has of rehabilitating parties convicted of crime without confinement.”

The trial court instructed the jury that they could recommend the granting of probation, if they found the appellant eligible, and listed the possible terms of probation which they could impose, “but need not necessarily impose all of them.” Appellant did not object to the punishment charge.

In Singletary v. State, 509 S.W.2d 572 (Tex.Cr.App.1974), we cited with approval Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), where, “this Court held that evidence to be offered at the hearing on punishment pursuant to the provisions of Article 37.07, Vernon’s Ann.C.C.P., ‘is by no means limited to the defendant’s prior criminal record, his general reputation and his character. Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible.’ ”

Singletary, supra, held that exclusion of various army commendations offered by the defendant’s testimony at the punishment stage was not reversible error. In accord is Logan v. State, 455 S.W.2d 267 (Tex.Cr.App.1970), concerning the exclusion of “good student” evidence by a teacher and counselor. There, this Court also stated that it was not error to exclude the offered testimony of the probation officer concerning the requirement for and the purpose of probation.

We cannot conclude, when comparing the appellant’s bill of exception with the instruction given, that error, if any, was reversible.

Appellant’s ground of error two is overruled.

Finally, in ground of error four, the appellant argues that “the Court erred in failing to assess punishment after the jury returned its verdict of guilty.” Appellant’s counsel states: “The appellant did not in writing elect to have the jury assess punishment.”

Prior to trial, appellant filed an Application for Probation of Sentence, in which he, “ask(ed) the court to submit to the jury this Application for a Probation Sentence.” There is no consent of the attorney for the State to change his election of one who assesses the punishment. Article 37.07(2)(b), Vernon’s Ann.C.C.P.

Appellant’s ground of error four is overruled.

The judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appellant urges that our opinion on original submission was in error in holding (1) that the issue of causation was not raised by the evidence and (2) that the failure of the trial court to charge thereon was not error after appellant had timely objected thereto.

Appellant urges that he was entitled to an instruction under V.T.C.A. Penal Code, Sec. 6.04(a), which provides:

“A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.”

Appellant argues that he was entitled to an instruction under Sec. 6.04(a), supra, because of the evidence which showed that there had been an earlier wreck and that deceased was on the highway as a result of such wreck.

By its very terms only a very narrow application can be given to Sec. 6.04, supra, and this is graphically noted by the following, which appears in the Practice Commentary following this section:

“The causal connection between criminal conduct and a proscribed result (usually some harm to person or property) is clear in the great mine-run of cases. When the actor points a pistol at the victim, pulls the trigger, and the victim falls dead, for example, there is no question of causal connection and the trial court does not charge on the causal issue.
“When some agency in addition to the actor contributes to the proscribed re-suit — for example, when the actor shoots V with intent to kill him, but wounds him instead, and V then dies in a traffic collision on the way to the hospital — a causal relation issue is sometimes presented.”

The fact that the earlier wreck and the conduct of the deceased may have been a “concurrent cause” is not enough to raise the issue unless there is evidence which tends to show that this concurrent cause “was clearly sufficient to bring about the resulting death of the deceased.” We find that the evidence did not raise such an issue since there was clearly a causal connection between the conduct of the appellant and the death of the deceased.

Appellant’s motion for rehearing is overruled.

MOTION FOP- REHEARING

CLINTON, Judge.

By written request, timely filed, the appellant requested a charge under Y.T.C.A. Penal Code, Section 6.04(a). The appellant’s testimony was to the effect that he was not intoxicated and that the death of the deceased resulted from the fact that the deceased was standing in the middle of the road at the scene of an accident and appellant did not see him. It appears to be the appellant’s defensive theory that he was driving as normally as if he had not been intoxicated and the death of the deceased was brought about by the fact that an accident had occurred and the deceased was standing in the highway at the scene of the accident. If the jury believed this was the cause of the accident and “was clearly sufficient to produce the result and the conduct of the actor clearly insufficient,” they should have acquitted the appellant. While it is extremely doubtful that the jury would have so found under the evidence in this case, that is not the issue. The issue is whether or not the jury should have had the opportunity to so find. Based upon appellant’s defensive theory and evidence, he was entitled to have the jury charged substantially as requested. Denial of his requested charge was, in my view, reversible error.

I respectfully dissent.

ROBERTS and ODOM, JJ., join in this dissent.


author: WILLIAM J. CORNELIUS, Commissioner.

text:
    Michael Ted COLLINS, Appellant, v. The STATE of Texas, Appellee.
    No. 55815.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 21, 1979.

      Floyd W. Freed, III, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Lupe Salinas and W. F. Roberts, Jr., Asst. Dist. Attys., Houston, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ., and CORNELIUS, Commissioner.
   OPINION

WILLIAM J. CORNELIUS, Commissioner.

In a jury trial appellant was convicted of the offense of aggravated robbery. His punishment was set at twenty-four years’ confinement in the Texas Department of Corrections. The only ground of error presented is that the trial judge erred in allowing evidence of an extraneous offense committed by appellant.

The State’s evidence revealed that at about 1:30 p. m. on December 18,1975, Glen Pearson and Neal Prince, who were subscription solicitors for a Houston newspaper, went to a housing project at 790 W. Little York in Houston for the purpose of soliciting customers. They had a conversation with appellant, and he referred them to a prospective customer in an upstairs apartment. The two men did not see appellant again until a few minutes later when he returned, armed with a rifle, and robbed them. The robbery occurred in open daylight and was witnessed by some twenty-five or thirty persons.

Appellant did not take the witness stand, but various members of his family testified. One of them asserted that appellant was in the house asleep during the time of the robbery. Others testified that appellant’s hair was straight at the time of the alleged robbery, whereas one of the victims had testified that the robber’s hair was a curly natural. Over defense objection, the trial judge allowed the State to present evidence of a subsequent robbery which, according to the State’s witness, had also been committed by appellant.

Appellant contends that evidence of the extraneous offense was improper for three reasons. First it is argued that the defense witness who raised the defense of alibi was impeached to the extent that his testimony was unbelievable, and the defense of alibi was rendered so weak as to amount to no defense at all, thus making evidence of an extraneous offense improper. The contention is overruled. Even if the claim of alibi were effectively destroyed, the issue of identity was clearly raised by the defense witnesses who testified that appellant’s physical appearance on the date of the robbery was different from that of the person identified by the victims as the robber. When identity is an issue, evidence of other offenses committed by the accused is admissible against him, provided the other offenses have similar distinguishing characteristics to those of the offense for which he is being tried. Collins v. State, 548 S.W.2d 368 (Tex.Cr.App.1976); Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974); Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972). Only when such distinguishing characteristics are present is the extraneous offense relevant, because then there may be drawn an inference that the accused was the person who also committed the primary offense. Ford v. State, supra.

The question of distinguishing characteristics constitutes appellant’s second reason for contending that proof of the extraneous offense was improper. He argues that the required similarities in the offenses were lacking. The primary offense was shown to have been committed at 1:30 p. m., in the open, before twenty-five or thirty persons, and upon two businessmen soliciting business at the housing project. The alleged extraneous offense was shown to have been committed at approximately 1:30 in the afternoon, in open daylight, at the same housing project, upon a businessman who was visiting the project, and in the presence of some fifteen witnesses. The offenses were only twelve days apart, and it was shown that appellant was a resident of the apartment complex. We think sufficient distinguishing characteristics were shown to make the extraneous offense admissible. The common characteristics may be proximity in time or place, or the common mode of the commission of the act. Ransom v. State, supra. Both are present in this case. Appellant points to certain dissimilarities in the offenses, such as the fact that the primary offense was committed by appellant alone and the extraneous one involved appellant and two confederates, and the primary offense involved the use of a firearm while the other offense did not. These dissimilarities do not destroy the extraneous offense’s relevance in showing identity. The offenses need not be exactly the same. See Ransom v. State, supra.

Finally, appellant urges that the extraneous act should not have been admitted because the testimony regarding it failed to establish all the elements of a criminal offense. The contention is without merit. That the act did not constitute a criminal offense or result in prosecution does not render it inadmissible, if it possesses the requisite similarities to render it admissible on the issue of identity, intent or scheme or design. Crawley v. State, 513 S.W.2d 62 (Tex.Cr.App.1974); Williams v. State, 161 Tex.Cr.R. 500, 279 S.W.2d 348 (1955).

The judgment is affirmed.


author: DOUGLAS, Judge.

text:
    Andrew Garrison CLARK, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 56080.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 21, 1979.

      R. L. Whitehead, Jr., Longview, for appellant.
    Donald R. Ross, County Atty., and David P. Brown, Asst. County Atty., Henderson, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

Andrew Garrison Clark appeals from his conviction for obtaining a controlled substance by use of a forged prescription. Vernon’s Annotated Civil Statutes, Article 4476-15, Section 4.09(a)(3). Punishment was assessed by the court at five years. The sufficiency of the evidence is not challenged.

Clark contends the indictment is insufficient. He argues that obtaining a controlled substance by use of a forged prescription can only be prosecuted under the general forgery statute, that the indictment must allege specifically how the controlled substance was obtained by fraud and the indictment must allege that appellant delivered the false instrument to someone. We overrule these contentions and affirm.

V.A.C.S., Article 4476-15, Section 4.09(a), provides:

“It is unlawful for any person knowingly or intentionally:
“(3) to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge;”

The indictment alleges that Clark,

“. . . acting with intent to promote and assist the commission of the offense of obtaining possession of a controlled substance by use of a forged prescription, aid another person, to wit: John M. Joyner, to commit the said offense, by then and there making a false instrument and prescription in writing purporting to be the act of another, to wit: the act of C. Ben McKenzie, M. D., said prescription purporting to be a written prescription authorizing Mark Stowe, a false name, to acquire a controlled substance, namely: Pethidine, also known by the brand name of Demerol, which said false prescription was made without lawful authority and is to the tenor foilow-ing: * * * (The prescription is omitted) And that said false prescription was made by the said Andrew Garrison Clark, Jr. knowingly and intentionally, . .”

Clark argues that obtaining a controlled substance by use of a forged prescription can be prosecuted only under the general forgery statute. V.T.C.A., Penal Code, Section 32.21. He relies upon Ex parte Harrell, 542 S.W.2d 169 (Tex.Cr.App.1976), which held that possession of a forged prescription, conduct which was proscribed by both the criminal instruments (Section 16.-01) and forgery (Section 32.21) chapters of the penal code, could only be prosecuted as forgery. The Court reasoned that the forgery statute was more specific than the criminal instrument statute and we interpreted the legislative intent to allow prosecution only under the more specific statute. See Alejos v. State, 555 S.W.2d 444 (Tex.Cr.App.1977); Jones v. State, 552 S.W.2d 836 (Tex.Cr.App.1977).

In the instant case, Clark was prosecuted for obtaining a controlled substance with the forged prescription, which was specifically denounced by the statute. He argues that this conduct is also proscribed by the forgery statute which deals with the use of a forged writing. One statute specifically deals with acquisition of the controlled substance and the other with the use of a forged writing in general. Harrell is not controlling. We hold that the prosecution and conviction for obtaining a controlled substance by use of a forged prescription under the specific statute was proper.

Clark’s two other contentions both deal with the specificity under which the offense must be charged. Normally, an indictment which sets forth the statutory language is sufficient to charge an offense. White v. State, 505 S.W.2d 258 (Tex.Cr.App.1974); Lopez v. State, 494 S.W.2d 560 (Tex.Cr.App.1973). Complaints which relate to insufficient notice rather than to a jurisdictional defect should be raised by a motion to quash. In the absence of such a motion, a non-jurisdictional defect will not be considered for the first time on appeal. Hughes v. State, 561 S.W.2d 8 (Tex.Cr.App.1978); Terry v. State, 517 S.W.2d 554 (Tex.Cr.App.1975).

The instant indictment charges appellant, acting as a party under Section 7.02(a)(2) of the Penal Code, with obtaining a controlled substance by use of a forged prescription. The indictment tracks the language of Section 7.02(a)(2), then alleges the substantive offense in general descriptive terms and spells out specifically the use and contents of the forged prescription. Article 21.13, V.A.C.C.P., provides that:

“Any indictment for an act done with intent to commit some other offense may charge in general terms the commission of such act with intent to commit such other offense.”

The instant indictment alleges a violation of V.A.C.S., Article 4476-15, Section 4.09(a)(3) in general terms. The acts making him a party under V.T.C.A., Penal Code, Section 7.02(a)(2), were alleged. This was sufficient to charge the offense. We hold that the indictment is sufficient.

No error is shown. The judgment is affirmed.


author: PHILLIPS, Judge.

text:
    Sammie MENDOZA, Appellant, v. The STATE of Texas, Appellee.
    No. 56207.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 21, 1979.
    William W. McNeal, Luling, for appellant.

      William L. Schroeder, Dist. Atty., New Braunfels, Jeffrey L. Van Horn, Asst. Dist. Atty., Lockhart, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for delivery of heroin. Punishment was assessed at five years’ imprisonment.

We note at the outset a fundamental error which requires the reversal of this conviction in the interest of justice. See Articles 40.09(13) and 36.19, V.A.C.C.P.

Appellant was charged by indictment with “knowingly and intentionally deliver[ing] to Gladys Thomas a controlled substance, namely: heroin, . . . ”

The court’s charge to the jury at the guilt and innocence phase wherein it applied the law of the State to the facts of this cause reflects:

Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Sammie Mendoza, did, in Caldwell County, Texas, on or about the 3rd day of September, A.D.1976, deliver to Gladys Thomas a controlled substance, to-wit: heroin, you will find the defendant guilty.

It is abundantly clear that the trial court in delivering this charge to the jury failed to include the required culpable mental state of either “knowingly” or “intentionally.” Such an omission is fatal.

Article 4476-15, Section 4.03(a), V.A. C.S., provides in pertinent part that “a person commits an offense if he knowingly or intentionally manufactures, delivers or possesses with intent to manufacture or deliver a controlled substance . . .” This offense clearly requires a culpable mental state. See also V.T.C.A., Penal Code, Section 6.02. The culpable mental state of either “knowingly” or “intentionally” is an essential element to the offense of delivery of a controlled substance.

To permit the jury to convict the appellant of the offense of delivery of heroin without requiring it to find beyond a reasonable doubt that he delivered the heroin “knowingly” or “intentionally” was to authorize the jury to convict the appellant of a nonexistent offense under the laws of this State. Such a procedure is clearly calculated to injure the rights of the appellant. See Dowden v. State, Tex.Cr.App., 537 S.W.2d 5; Robinson v. State, Tex.Cr.App., 553 S.W.2d 371; Jones v. State, Tex.Cr.App., 566 S.W.2d 939; West v. State, Tex.Cr.App., 567 S.W.2d 515.

The judgment is reversed and the cause remanded.


text:
    Alfred WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 56622.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 21, 1979.

      J. R. Musslewhite, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell and Skip Cornelius, Asst. Dist. Attys., Houston, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for aggravated robbery; punishment was assessed at imprisonment for eight years.

In this case, as in Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Jones v. State, 566 S.W.2d 939 (Tex.Cr.App.1978); Brewer v. State, 572 S.W.2d 940 (Tex.Cr.App.1978); Gooden v. State, 567 S.W.2d 382 (Tex.Cr.App.1979) (Opinion on Appellant’s Motion for Rehearing), and a number of other recent decisions, the instructions submitted to the jury authorized conviction for the offense charged in the indictment, but also authorized conviction for the offense committed by means other than that charged in the indictment. This is error. In Williams v. State, 535 S.W.2d 352 (Tex.Cr.App.1976), this was held to be error, but not to require reversal of the judgment. There were no objections at the timé of trial to the erroneous instructions in the instant case. However, the majority of this Court has now held that it is fundamental error and that reversal is necessary even though no objection was made to the jury instructions in the trial court. Although the author of this opinion does not agree with the majority, see Gooden v. State, supra, (Concurring Opinion on Appellant’s Motion for Rehearing) and Clements v. State, 576 S.W.2d 390 (Tex.Cr.App.1979) under the holdings of the majority the judgment must here be reversed.

The judgment is reversed and the cause remanded.


text:
    Jose Leonel TREVINO, Appellant, v. The STATE of Texas, Appellee.
    No. 56424.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 21, 1979.

      Paul Banner and Cornel Walker, Green-ville, for appellant.
    Felipe Reyna, Dist. Atty. and Rodney Go-ble, Asst. Dist. Atty., Waco, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for possession of more than four ounces of marihuana following a plea of guilty before the jury. The punishment assessed by the jury is imprisonment for ten years and a $5,000 fine.

Appellant contends that the trial court erred in failing to submit the issue of probation to the jury. We agree.

Prior to the start of his trial, appellant filed a sworn application for probation. In support of the application, appellant’s wife testified that she was fifty-three years old; appellant was forty-two years old; she and appellant had been married for twenty-two years; she had known appellant for ten years prior to their marriage; and, to her knowledge, appellant had never been convicted of a felony.

The question of probation was included in the original draft of the charge, but the trial court withdrew probation from the charge following an objection by the prosecutor, who took the position that the only way a defendant may prove his eligibility for probation is by personally testifying. Although the State does not make this assertion in its appellate brief, it does contend that Mrs. Trevino’s testimony is insufficient to support appellant’s request for probation since she admitted that appellant had been away from home on one occasion for a period of three months, during which he could have been convicted of a felony.

Both appellant and the State rely on the decision in Walker v. State, 108 Tex.Cr.R. 190, 299 S.W. 417 (1927). In that case, the defendant, who was under twenty-one years of age, did not testify, and no witness was asked if the defendant had ever been convicted of a felony. The defendant’s aunt testified that she had known the defendant all of his life, had had the care of raising him, and that he had not been out of Fort Worth for more than six months at any one time during the preceding ten years. The deputy district clerk of Tarrant County testified that the defendant had not been convicted of a felony in that county during the eight years prior to the trial. In holding that this testimony was not sufficient to warrant submitting the issue of a suspended sentence to the jury, since the defendant could have been convicted of a felony during one of his six-month absences from Tarrant County, it was stated:

“We see no reason in the world why appellant’s mother, his father, his aunt, or some of his associates who testified in the case in his behalf could not have been asked a direct question by the appellant as to whether he had heretofore been convicted of a felony, if he had been in fact, in good faith, relying upon this proposition to escape the results of conviction, or wished to meet the burden imposed on him of showing that he had not been so convicted.”

In the instant case, Mrs. Trevino testified, in effect, that she had known appellant since he was ten years old and that he had not been convicted of a felony during that time. This is sufficient to require the submission of a charge on probation. See Walker v. State, supra; Taylor v. State, 96 Tex.Cr.R. 379, 257 S.W. 1105 (Tex.Cr.App.1924).

The right to probation is valuable; when testimony reasonably supports a defendant’s motion for probation, the issue should be submitted to the jury. The failure to submit that issue in this case was error.

The judgment is reversed and the cause remanded.


text:
    Jesse ARCHER, Appellant, v. The STATE of Texas, Appellee.
    No. 57039.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 21, 1979.
    W. John Allison, Jr., Dallas, on appeal only, for appellant.
    Henry M. Wade, Dist. Atty., John H. Hagler and Robert E. Whaley, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ., and CORNELIUS, Commissioner.
   OPINION

WILLIAM J. CORNELIUS, Commissioner.

In a jury trial appellant was convicted of the offense of rape of a child. Punishment was set at fifteen years’ confinement.

The sufficiency of the evidence is not challenged. Appellant’s only ground for reversal is the contention that the conviction was void because the indictment, when returned, was barred by the statute of limitations.

The offense occurred on June 11, 1975. At that time, the statute of limitations for rape prosecutions was one year. Article 12.01, V.A.C.C.P. Effective September 1, 1975, Article 12.01 was amended so that the limitations period for rape prosecutions became three years. Appellant was indicted for the instant offense on May 31, 1977, more than one year but less than three years after the offense. Appellant contends that, as the limitation period was one year at the time the offense was committed, any prosecution therefor must have been commenced within one year, and that the amendment of the statute after the commission of the offense was ineffective to extend the limitation period. We cannot agree. Where a complete defense has accrued under a statute of limitations, it cannot, of course, be taken away by a subsequent repeal or amendment thereof. But a statute extending a period of limitation applies to all offenses not barred at the time of the passage of the act, so that a prosecution may be commenced at any time within the newly established period, although the old period of limitations has then expired. Hill v. State, 146 Tex.Cr.R. 333, 171 S.W.2d 880 (1943); 16 Tex.Jur.2d, Criminal Law, Sec. 110, p. 250; 22 C.J.S. Criminal Law § 224, p. 575.

The judgment is affirmed.


text:
    Gerald Allen LAKE, Appellant, v. The STATE of Texas, Appellee.
    No. 57176.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 21, 1979.
    James A. Moore and Randy Martin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, Douglas O’Brien and Jack Freís, Asst. Dist. Attys., Houston, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for possession of heroin wherein punishment was enhanced pursuant to the habitual offender statute, V.T.C.A., Penal Code Sec. 12.42, and assessed at life. Appellant claims error was caused at the trial level by improper voir dire and destruction before trial of the heroin he was alleged to have possessed.

Appellant first complains that the trial court committed error in granting the state’s motion in limine which forbade him from informing the jury that life imprisonment would be mandatory under Penal Code Sec. 12.42 if they found during the punishment phase that he had twice before been convicted of felonies. He does not claim that granting the motion in limine itself was error but that it combined with the prosecutor’s voir dire to produce error. The prosecutor voir dired on a range of punishment from five years to life, asking the jurors if they could give what he called the maximum in an appropriate case. He also emphasized the bifurcated nature of Texas criminal trials. Appellant claims that this voir dire gave the jury the impression that they would have discretion in sentencing where they actually did not and that this affected their deliberations to his detriment.

It is well settled that the trial court may forbid discussion of a punishment absolutely fixed by law during all stages of the trial. Thomas v. State, Tex.Cr.App., 543 S.W.2d 645. It would perhaps have been better practice for the prosecutor to submit his motion before voir dire, but there was no harm in the procedure used in this case. The prosecutor’s voir dire, if error, was harmless error.

Appellant insists he cannot be convicted of possession of heroin since the heroin was destroyed before trial. Appellant had been tried once before on this same offense but his conviction was set aside by the trial court. After the first conviction the heroin had been destroyed by order of the trial court.

It is true, as appellant argues, that a defendant should be given access to contraband for the purpose of analysis when available. Terrell v. State, Tex.Cr.App., 521 S.W.2d 618. Detmering v. State, Tex.Cr.App., 481 S.W.2d 863. There are instances, however, when it is not available, such as when it is lost or is destroyed in the process of analysis. Under such circumstances it is not error to convict for possession of drugs absent the physical presence of the drug itself, providing the drug has been analyzed and the chain of custody explicated. See Montes v. State, Tex.Cr.App., 503 S.W.2d 241. In the instant case, the chemist who made the analysis was present and available for questioning as were the officers who made the arrest and seizure and who could testify to the chain of custody. Of course, the state must not be allowed to purposefully or carelessly destroy evidence with an eye to harming a defendant, but there was no showing of bad faith on the state’s part in this case. The heroin was destroyed by order of the trial court after the first trial, and the prosecutor did not discover the fact until the day before the trial.

Appellant’s pro se briefs have been examined and found to be without merit.

The judgment is affirmed.


author: DOUGLAS, Judge. ODOM, Judge,

text:
    Fernando ORTIZ and Luis Carlos Salas, Appellants, v. The STATE of Texas, Appellee.
    No. 57331.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 21, 1979.

      Oscar J. Pena, Laredo, for appellant.

      Charles R. Borchers, Dist. Atty., Sharon S. Trigo, Alonzo Z. Laurel, Jr. and Hector J. Leal, Asst. Dist. Attys., Laredo, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

Appellants were convicted in a joint trial for the offense of attempted murder. Punishment was assessed by the jury at ten years for Ortiz and seventeen years for Salas.

Ortiz initially challenges the sufficiency of the evidence to support his conviction. Celestino Mata, the victim, entered the Wooden Nickel Lounge in Laredo with his companion Federico Juarez at approximately 12:20 a. m. on December 8, 1976. Mata had previously drunk two beers at the tavern operated by Juarez. At the Wooden Nickel Mata saw Ortiz, and Ortiz spoke to him. Mata also encountered Salas who was at the lounge with Ortiz. Salas said something to Mata, but Mata did not understand him.

Mata and Juarez left the bar at approximately 1:45 a. m. and were walking to their car when Salas approached from behind. Ortiz was standing outside of his truck with the door open about twenty-five feet away from Salas. Mata asked Ortiz what Salas wanted and, when he turned, he saw Salas pointing a pistol at him. Salas shot Mata once and then left the scene with Ortiz in Ortiz’ truck. Several hours later Ortiz went to the home of Emily Cobos. Ortiz asked to talk and drink beer but Cobos declined because her boyfriend was with her. Ortiz left but returned a few minutes later and asked if his friend “Luis” could stay in Cobos’ apartment. Again Cobos refused and Ortiz departed.

Ortiz was convicted as a party to the offense under V.T.C.A., Penal Code, Section 7.02(a)(2). It is well settled that mere presence is not alone sufficient to support a conviction under Section 7.02(a)(2), supra, although it is a circumstance tending to prove guilt which, combined with other facts, may suffice to show that the accused was a participant. Ashabranner v. State, 557 S.W.2d 774 (Tex.Cr.App.1977); Johnson v. State, 537 S.W.2d 16 (Tex.Cr.App.1976); Coronado v. State, 508 S.W.2d 373 (Tex.Cr.App.1974).

The only evidence introduced relating to Ortiz’ culpability was that he was present with Salas on the night of the shooting, remained twenty-five feet away from Salas and drove Salas from the scene. There was no evidence of “bad blood” between the victim and Ortiz, and the victim himself testified that Ortiz said hello to him as he entered the Wooden Nickel Lounge.

Viewing the evidence in a light most favorable to the verdict, we find it is insufficient to support Ortiz’ conviction under Section 7.02(a)(2), supra.

Salas alleges six examples of prosecutorial misconduct.

Salas first claims error occurred when his past prison record was brought out on the direct examination of Ortiz. In answering a question propounded by defense counsel as to why the two went to the Wooden Nickel, Ortiz said: “He was in prison, and maybe he wanted to have a little drink with us.” He also stated that he had tried to stop Salas from fighting because he knew Salas “had two years’ probation and I knew he had some parole.” On cross-examination the prosecutor asked Ortiz to reiterate what he had said on direct. Defense counsel objected and the court instructed the jury to only consider the statements made on direct.

Salas’ prison record was brought out by the direct examination of Ortiz. The State was asking for Ortiz to repeat his statements on direct. See Article 38.24, V.A.C.C.P.; Cerda v. State, 557 S.W.2d 954 (Tex.Cr.App.1977); Birdwell v. State, 510 S.W.2d 347 (Tex.Cr.App.1974). In light of the fact that this information was elicited by Salas’ own attorney and the instruction to the jury to only consider the testimony on direct, the district attorney’s attempt to have the statements repeated was not error.

Next, Salas alleges that prosecutorial misconduct occurred when the State in closing arguments urged the jury not to convict the appellants for “just a Mickey Mouse aggravated assault.” The statement was not objected to and error, if any, was waived.

Complaint is also made of the State’s reference in its closing argument that appellants had intimidated a witness. In its argument the prosecutor stated that one of the witnesses, Federico Juarez, was “afraid, intimidated just by the looks of these two gentlemen.” The record reflects that on direct Juarez stated he was “nervous.” The trial court promptly instructed the jury to only consider the evidence adduced at the trial, not the attorney’s remarks. Error, if any, was made harmless by the court’s instruction.

Salas contends reversible error occurred when the prosecution asked the following question of Emily Cobos:

“Q. . . . did he not also tell you that the reason why he was going to court, and to quote your words, (through Court Interpreter:) ‘I came to have my hair cut; I am going to court, and there was malicious destruction done.’
“A. (Hesitation.)
“MR. BORCHERS: I have no further questions.”

Prior to this exchange the State claimed surprise and laid the predicate for impeaching Cobos with her prior inconsistent statements. The question was not objected to by defense counsel, thereby waiving his complaint. Sloan v. State, 409 S.W.2d 412 (Tex.Cr.App.1966).

The fifth example of prosecutorial misconduct urged by Salas relates to testimony elicited by the State from a federal drug enforcement agent that such agent had known of Salas for two and a half or three years. Salas argues that this testimony implied that he had been trafficking in drugs for two and a half years. We disagree.

In the recent case of Carrillo v. State, 566 S.W.2d 902 (Tex.Cr.App.1978), we held that it was not improper for a character witness against the defendant to identify himself as an investigator for the Organized Crime Division of the Attorney General’s office. We held that:

“. . . the information was received by the court as the result of proper preliminary inquiry into the background of the witness so as to allow the jury to assess the weight to be given his testimony and to evaluate his credibility. Elam v. State, 518 S.W.2d 367 (Tex.Cr.App.1975). See Watson v. State, 488 S.W.2d 816 (Tex.Cr.App.1972); Winkle v. State, 488 S.W.2d 798 (Tex.Cr.App.1972).”

No error is shown.

The last alleged example of misconduct relates to the extensive evidence of the injuries sustained by the victim. Expert medical testimony and numerous hospital records were introduced by the State. These showed that Mata, the victim, was permanently paralyzed from the waist down and that the bullet which struck him was still lodged in his spine.

In a prosecution for attempted murder, testimony as to the nature and extent of the victim’s injuries is admissible, Robinson v. State, 457 S.W.2d 572 (Tex.Cr.App.1970); Johnson v. State, 421 S.W.2d 918 (Tex.Cr.App.1967); Gilmer v. State, 157 Tex.Cr.R. 109, 246 S.W.2d 639 (1952). This ground of error is overruled.

Salas asserts that the trial court erred in failing to submit a charge to the jury on voluntary manslaughter.

A charge on a lesser included offense is not required unless there is testimony raising the issue that the accused, if guilty at all, is guilty of a lesser included offense included in the greater offense charged. Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978); Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1975); Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (1952).

Salas did not testify and offered no evidence. There is no evidence that he and Mata had exchanged heated words nor any evidence that Salas was acting “under the immediate influence of sudden passion arising from an adequate cause.” V.T.C.A., Penal Code, Section 19.04.

The next contention is that the verdict was vague, indefinite and did not inform him of what offense the jury convicted him of.

The indictment charged attempted murder. The charge to the jury makes three references to attempted murder as the offense charged in the indictment.

In Lewis v. State, 482 S.W.2d 177 (Tex.Cr.App.1972), this Court stated:

“A jury verdict will be held to be sufficient if its meaning can be reasonably ascertained from the words used. Stewart v. State, Tex.Cr.App., 422 S.W.2d 928; Hensley v. State, 153 Tex.Cr.R. 616, 224 S.W.2d 245; Burton v. Anderson, 1 Tex. 93. When the verdict refers to the indictment, both the indictment and the charge must be read in order to determine the intent of the jury. Salas v. State, Tex.Cr.App., 474 S.W.2d 228; Pennington v. State, Tex.Cr.App., 364 S.W.2d 376; Caballero v. State, 171 Tex.Cr.R. 133, 346 S.W.2d 343; McGee v. State, 39 Tex.Cr.R. 190, 45 S.W. 709.”

The verdict is not vague and it is sufficient to show that he was found guilty of the offense of attempted murder. No error is shown.

Lastly, Salas contends he was denied effective assistance of counsel because of a conflict of interest of retained counsel. Salas and Ortiz were represented by the same retained counsel at trial and on this appeal. The record before us does not show that Salas was denied effective counsel. He retained the attorney of his choice and knew that his attorney also represented Ortiz. There is nothing to show he was not fully apprised of the risks involved in the dual representation. At the trial he employed Oscar J. Pena as his attorney and continued to do so on appeal. No showing that his retained counsel breached his legal duty to Salas has been made. Hargett v. State, 534 S.W.2d 909 (Tex.Cr.App.1976); Pete v. State, 533 S.W.2d 808 (Tex.Cr.App.1976); Ex parte Hill, 528 S.W.2d 259 (Tex.Cr.App.1975); Stutes v. State, 530 S.W.2d 309 (Tex.Cr.App.1975).

The judgment of conviction as to Fernando Ortiz is reversed because the evidence is insufficient. According to the decisions of the Supreme Court of the United States in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1; and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15, this opinion is tantamount to an acquittal.

The judgment of conviction as to Luis Carlos Salas is affirmed.

ODOM, Judge,

concurring.

I concur in the disposition of this case; however, as to Salas’ last ground of error I restate my views expressed in Pete v. State, 533 S.W.2d 808:

“We are not unmindful of the possibility of conflict of interest whenever one attorney undertakes to represent co-defendants. See Morales v. State, Tex.Cr.App., 466 S.W.2d 293, 304 (concurring opinion). We are of the view, however, that counsel has the primary responsibility for advising clients of possible conflicts in their positions. See Stutes v. State, 530 S.W.2d 309, at 313, and DR5-105, Code of Professional Responsibility.”

I respectfully concur.

      . Section 7.02, supra, provides in part:
      “(a) A person is criminally responsible for an offense committed by another if:

      “(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids or attempts to aid the other person to commit the offense.”


author: CLINTON, Judge.

text:
    Domingo ROMO, Appellant, v. The STATE of Texas, Appellee.
    No. 57556.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 21, 1979.
    Larry E. Glazner, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., and John C. Kilpatrick, Asst. Dist. Atty., Lubbock, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Appellant was convicted of the offense of driving while intoxicated, and punishment was assessed at ten days and $150.00 fine. Four grounds of error are raised on appeal.

In three grounds of error appellant contends that the trial court erred by refusing to grant a motion for mistrial based on the admission of evidence about a breathalyzer test. Appellant’s counsel filed a pre-trial motion in limine requesting that the trial court restrict the State from making “[a]ny reference to breathlizer (sic) tests, broad (sic) alcohol (sic) levels, or other such evidence unless same is presented by a duly qualified and certified chemist and breath test administrator.” The motion was denied by the trial court. During jury voir dire the prosecutor made several references to a breathalyzer test, but no objections were made by appellant. Officer Danny Smith of the Department of Public Safety testified that he administered a breathalyzer test to appellant, and he gave the results of the examination. He did not testify that he was certified by the Department of Public Safety to administer breathalyzer tests. He did not testify that he understood the theory of the machine, that he was qualified to or did check the compounded chemicals in the breathalyzer used in the examination, or that he was qualified to calculate and translate a reading of the machine. However, appellant made no objection to Officer Smith’s testimony. After both sides rested, appellant’s counsel made a motion for mistrial based on the introduction of the breathalyzer testimony.

It is clear that the State failed to prove the necessary predicate for introduction of the breathalyzer test. Cody v. State, 548 S.W.2d 401 (Tex.Cr.App.1977); Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93 (1953). However, reliance on a motion in limine will not preserve error. A defendant must object on the proper grounds when the evidence is offered at trial. Harrington v. State, 547 S.W.2d 616 (Tex.Cr.App.1977); Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.1976). The reason for this rule is that a judge is often not in a position to decide on the admissibility of evidence prior to the beginning of trial. This is particularly true when the objection is based on grounds such as the failure to prove a proper predicate. Counsel could ask in the motion in limine that before a suspect area is entered into at trial, the opposing counsel be required to approach the bench and inform the court so that the jury may be excluded. By that procedure the evidence may be challenged at the proper time without risk of prejudicing the jury. Whatever the procedure chosen, defense counsel must object before the evidence is admitted during trial in order to properly call the court’s attention to the matter and preserve the error for appeal.

Grounds of error number one, two, and three are overruled.

In his fourth ground appellant contends that the trial court erred in receiving evidence resulting from an illegal arrest. The record reflects that Joe Weatherford, who originally detained appellant on the “Slay-ton Highway” two miles outside the city limits of Lubbock, was an employee of the Lubbock County Water Control. Weather-ford was a member of the Buffalo Springs Lake Patrol, and he admitted on cross-examination that his jurisdiction did not extend beyond the lake patrol area of Buffalo Lake.

On direct examination Weatherford testified that he was driving to work on Avenue A in Lubbock when he encountered appellant, who was driving “erratically” and at a high rate of speed. Appellant approached Weatherford from the rear, and then passed in a way that forced Weatherford’s car into the curb in order to avoid an accident. Weatherford radioed the Sheriff’s Office and asked them to contact the Lubbock Police Department. He continued to follow appellant and clocked appellant’s car at 70 miles an hour in a 55 mile an hour zone. Appellant’s car was weaving across the center lane and on to the shoulder of the road.

At that point appellant had reached the Slayton Highway, and Weatherford radioed the Department of Public Safety. He was put in contact with Trooper Smith who was in the area. Smith advised Weatherford to “stay with the vehicle until he could get up there.” Weatherford followed appellant for about two miles and clocked the car at 90 miles an hour. Trooper Smith radioed back that he was caught in traffic, and he instructed Weatherford “in order to avoid an accident or anything, to go ahead and stop the subject at the time.” Weatherford turned on the red lights on his vehicle, and appellant pulled his car over. Weatherford noticed that appellant smelled strongly of alcohol, staggered when he walked, had to lean against the car, and had red and bloodshot eyes. Weatherford again spoke to Trooper Smith who advised him to remain with appellant until Smith could arrive. Weatherford took appellant’s driver’s license, and Trooper Smith arrived at the scene after a few minutes.

The issue is whether Weatherford had authority to arrest appellant. We conclude that he was so authorized. First, “[a] citizen other than a police officer may make an arrest without a warrant for a misdemeanor offense when it is a breach of the peace.” Heck v. State, 507 S.W.2d 737 (Tex.Cr.App.1974); Article 14.01(a), Vernon’s C.C.P.; McEathron v. State, 163 Tex.Cr.R. 619, 294 S.W.2d 822 (1956). We have held that being drunk in a public place is a breach of the peace. Heck v. State, supra. Under the prior code, which contained the language “offense against the public peace,” we held that a citizen could arrest under facts very similar to these. McEath-ron v. State, supra. We hold that appellant was committing a breach of the peace and that Weatherford was authorized to arrest.

Ground of error number four is overruled.

For these reasons the judgment is affirmed.

      . We also observe that the jury was not instructed concerning the statutory presumption of Article 67011-5, V.A.C.S.