author: TODD, Judge.

text:
    Edward L. LUTZ, Plaintiff, v. JOHN BOUCHARD AND SONS COMPANY, INC., Rex Beeler, Individually and d/b/a Tennessee Boiler Company, Defendants.
    Court of Appeals of Tennessee, Middle Section.
    April 26, 1974.

      Harold D. Hardin and Seth W. Norman, Nashville, for plaintiff.
    S. McPheeters Glasgow, Jr., Nashville, for defendant.
   OPINION

TODD, Judge.

The defendant, Rex Beeler, individually and d/b/a Tennessee Boiler Company, has filed in this Court a petition for the writs of certiorari and supersedeas seeking relief from an order of the Trial Judge requiring that the deposition of Dr. Donald Kinser be taken by the plaintiff.

This is a suit for personal injuries sustained by plaintiff, an employee of Hamilton National Bank, as a result of the explosion of a mechanical device being used by defendants in repair work on the premises of said bank. The complaint alleges dangerous propensities of said machine, failure to discover and warn of same, and relies upon the doctrine of res ipsa loquitur.

One of the defendants, John Bouchard and Sons Company, Inc., has heretofore been dismissed by summary judgment, leaving only the defendant, Rex Beeler, individually and d/b/a Tennessee Boiler Company, before the Court.

On October 16,1973, plaintiff gave notice to defendant of the taking of the deposition of Dr. Donald Kinser on November 1, 1973.

On the same date, plaintiff also gave notice of taking the deposition of the same witness on November 6, 1973.

On October 19, 1973, defendant filed a motion to quash the notice for deposition of Dr. Kinser on the following grounds:

“Pursuant to the orders of this Court, the defendant turned over to plaintiff’s counsel the metal fingers from the turbine machine involved in this case in order that plaintiff, and/or his expert, might examine, inspect or test said objects, with the stipulation that the objects should not be physically altered and thereafter plaintiff’s attorney took the objects to Dr. Donald L. Kinser, a metallurgist who had been employed as an expert by the defendant, and requested an examination and opinion, which was declined for the reason that said person had previously been employed by the defendant as an expert to examine said objects, and his findings of fact and opinion were privileged and not available to the plaintiff or his attorney, and now the plaintiff’s attorney has given notice that the deposition of Dr. Donald L. Kinser will be taken on November 6, 1973, without the consent of Dr. Donald L. Kinser, or the defendant who employed him.”

In support of said motion to quash, defendant filed the affidavit of its attorney to the effect that Dr. Donald L. Kinser had been previously employed by defendant to inspect the parts of the broken machine and give his opinion concerning same; that said services have been rendered; that plaintiff has not made reasonable effort to secure the services of another expert and is attempting to establish and prove his case at the expense of defendant.

Plaintiff filed the affidavit of his attorney that he had previously used the services of Dr. Kinser and his associates in other cases; that he (plaintiff’s attorney) had great respect for the integrity and ability of Dr. Kinser and his associates; that he had offered to pay defendant one-half of the cost of employment of Dr. Kinser in return for access to his findings in which event “it might not be necessary” to hire another expert; that said offer was refused; that the nearest qualified expert was in Atlanta, Georgia; and that plaintiff had agreed to pay the witness $100.00 to give the proposed deposition.

On November 12, 1973, the motion to quash was set for hearing; there was no appearance for the plaintiff; and the motion was sustained. Thereafter, on November 14, 1973, the previous action of the Court was superseded by an order requiring that the deposition be taken on December 5, 1973.

The last mentioned order is the subject of the present petition for certiorari and su-persedeas.

The plaintiff has filed in this Court a “Motion to Dismiss” on the following grounds:

“1. The petition shows on its face that it is an appeal from a purely interlocutory matter.
2. The brief of law filed by the defendant in support of the petition erroneously states the applicable law.
3. Assuming arguendo that Tennessee has adopted the old minority cases cited by the defendant, the ruling of the trial court would still involve a matter of discretion and fact finding and should not be disturbed by piece-meal, interlocutory appeal.”

In Medic Ambulance Service, Inc., et al. v. McAdams, 216 Tenn. 304, 392 S.W.2d 103 (1965), the Supreme Court said:

“[10] We concede the order of the trial court was not a final one as insisted by plaintiff, but we think it is subject to review by the appellate courts on petition for the writ of certiorari.
‘ “Certiorari” at common law performed the function of aid to a review and supervision of the proceedings of inferior boards and tribunals by a superior tribunal, not taking the place of appeal or writ of error, but bringing up the entire record in order to a determination whether there had been an absence or excess of jurisdiction, or a failure to proceed according to the essential requirements of the law.’ Conners v. City of Knoxville, 136 Tenn. 428, 189 S.W. 870 (1916).
“As said in the case of Taylor v. Continental Tenn. Lines, 204 Tenn. 556, 322 S.W.2d 425 (1959):
‘We have repeatedly held that it is error to grant a discretionary appeal in a court of law; and appeals to this Court in such cases are dismissed as being premature. However, in a proper case errors complained of in a judgment not final in form or substance, is subject to review by the appellate courts upon a petition for the writ certiorari.’
“In the case of Wattenbarger v. Tullock, 197 Tenn. 279, 271 S.W.2d 628 (1954), this Court said:
‘It is settled by the case of State ex rel. McMorrow v. Hunt, 137 Tenn. 243, 192 S.W. 931 (1916), that this supervisory or superintending writ may be granted in a proper case although the decree is not final.’
“We think the error here complained of amounted to an illegality which is fundamental, as distinguished from an irregularity, a technical or formal error not affecting jurisdiction or power; and, although not a final order or judgment, is, nevertheless, reviewable by the common law writ of certiorari. State ex rel. McMorrow v. Hunt, supra.” 216 Tenn., pp. 320, 321, 392 S.W.2d at 111.

The foregoing disposes of grounds 1 and 3 of the motion to dismiss.

Ground 2 of the motion to dismiss is addressed to the merits of the petition which will be discussed hereafter.

The Motion to Dismiss is respectfully overruled.

As to the merits of the petition for certiorari, the facts are undisputed. The defendant had previously contracted with Dr. Donald Kinzer to examine the broken parts of the subject machine and to render his expert opinion thereon. Dr. Kinzer had made such examination; but, so far as the record shows, had rendered no formal, written report to defendant.

After obtaining possession of the said broken parts, plaintiff sought to engage the services of an associate of Dr. Kinzer who declined to serve because of the previous activities of Dr. Kinzer. Both Dr. Kinzer and his associate are associated with Vanderbilt University in Nashville. The nearest qualified alternate expert is in Atlanta, Georgia. The broken parts are not large. They are derived from a power tool which is held in the operator’s hands. They may be carried or transported without difficulty or inconvenience.

Upon these facts, plaintiff insists that he is entitled to take the discovery deposition of the defendant’s employed expert, Dr. Kinzer.

At the present, the taking of discovery depositions is governed by Rules 26 et seq., Rules of Civil Procedure. Rule 26.01 provides in part:

“26.01. When depositions may be taken.—
Any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. . . . ”

Rule 26.02 provides:

“26.02. Scope of examination.—
Unless otherwise ordered by the court as provided in Rule 30, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Rule 30.02 provides:

“30.02. Orders for the protection of parties and deponents.—
After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated place other than that stated in the notice, or that it may be taken only on written interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination shall be limited to certain matters, or that the examination shall be held with no one present except the parties to the action and their officers or counsel, or that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to protect the party or witness from annoyance, embarrassment or oppression, including an order that a party shall not be required to disclose the names of witnesses or disclose or produce things pertaining to the litigation where the requesting party has not, in the opinion of the court, used diligence to discover such things for himself.” (emphasis supplied)

The Rules of Civil Procedure follow the general pattern of the Deposition Law of 1959 with certain modifications which are immaterial to the issues herein. Therefore, decisions under the former law are of considerable assistance in applying the Rules of Civil Procedure to the present case.

Medic Ambulance Service, Inc., et al. v. McAdams, supra, was concerned with the discovery of the entire investigatory file of defendant, however the Supreme Court said:

“[9] It is our opinion the Act requires a party seeking to discover the investigation file or any of its parts which are the work product of the adversary party or his Attorney must show good cause for the discovery; and that the party has used diligence to discover for himself those things which he seeks to have the adversary party produce for inspection and copying. We are of the further opinion a mere allegation that good cause exists is not enough. We think there must be a factual statement, not merely conclusions, as to the need for the data or material for the purposes of the trial, and the motion should be supported by proper affidavit.
“[14] We conclude the trial judge acted arbitrarily in entering the order without a showing of good cause for the production of the investigation file or any diligence on the part of plaintiff in discovering for himself the material sought for inspection and copying; .
“[15] We observe, however, this opinion does not prejudice the right of plaintiff to further pursue the matter within the bounds and limitations of the Discovery Law of 1959.” 216 Tenn., pp. 319, 320, 322, 392 S.W.2d p. 110

In State of Tenn. ex rel. Pack, Commissioner v. West Tennessee Distributing Company, 58 Tenn.App. 306, 430 S.W.2d 355 (1968) this Court denied discovery of appraisal reports in a condemnation case, but said:

“Trial courts have sufficient power, T.C.A. sec. 24-1205, and may be trusted to so exercise their discretion as to prevent a party who sits idle while his opponent through energetic actions brings to light pertinent evidence from gaining access to his opponent’s files to supply the information he needs. . . ”

In 86 A.L.R.2d at page 129 is reproduced in full the opinion in the case of Grand Lake Drive In, Inc., et al. v. Superior Court, 179 Cal.App.2d 122, 3 Cal.Rptr. 621 (1960) wherein the plaintiff sought the discovery deposition of an engineer who had made inspections and tests upon the sidewalk where plaintiff was injured. The California Court said:

“There is merit, however, in defendant’s contention that fairness requires a showing of good cause as a condition to exercise of the power of the court to require pre-trial disclosure of the observations and conclusions of an independent expert engaged by a party as part of his preparation for trial, after occurrence of the event sued upon, to examine and reach conclusions upon an object in issue.
“However, under the broadest statement of its purposes, pre-trial discovery is subject to some limitations. Hickman v. Taylor, supra, 329 U.S. [495,] at pages 507-508, 67 S.Ct. 385, 91 L.Ed. 460. One such limitation seems reasonably to be drawn along the line distinguishing fact from opinion. The statute contemplates broad discovery of facts directly relating to the event or transaction in issue. But a somewhat different classification may well be assigned to the testimony of an independent expert engaged after the event or transaction to form an opinion upon some feature of it (see 4 Moore’s Federal Practice, 2d ed., p. 1157). While such an expert normally is engaged with the idea that he will be called as a witness, he also serves, in most cases, as an adviser to counsel in determining upon an approach to the features of the case involving expert opinion, and these in turn indicate approach, emphasis, and legal theories for the case as a whole. Further, pre-trial investigation of the opinions of an opponent’s experts may tend to encourage a contest of successive employment of experts, each to report or elaborate upon some element of the opinion expressed by the last. Such a contest, with its financial burdens, could well amount to the ‘oppression’ which the statute proscribes (Code Civ.Proc. §§ 2019(b)(1), 2030(b). And limitless pretrial investigation of the views of opposing experts might well defeat the expedition of trial, which is one objective of discovery. The possible evils of unrestricted discovery of experts’ views in cases turning largely upon expert testimony, such as condemnation, have been recognized. . . . We hold here that the refusal of an independent expert to answer is justified unless the party seeking to compel his answer shows good cause therefor. .
“In the infinite variety of circumstances which may arise in the course of human activity, as revealed in the complexities of litigation, many other factors may, collectively or individually, justify inquiry into the acts and thoughts of the independent expert. We do not attempt here to foresee and to detail them. Rather, we leave them to determination as they arise. Such determination will be facilitated by the exercise of a sound discretion in the trial courts in balancing the values of mutual pre-trial knowledge of the relevant facts against the elements of ‘annoyance, expense, embarrassment or oppression’ (Code Civ.Proc. §§ 2030(b), 2019(b)(1).
“To avoid confusion in the trial courts, we specifically disclaim any intention to place major emphasis upon an offer of the questioning party to pay all or a part of the fee or costs of the opponent’s expert. References to this factor in some federal cases (see 4 Moore, supra, p. 1158) might, in the absence of this disclaimer, mislead bench and bar. Overemphasis upon the feature of cost could lead to an inappropriate air of barter. Conceivably, situations may arise in which fee and expenses of the expert could be a factor having some bearing upon the issue of good cause. Save in unusual cases, however, those items should not be given weight.
“The matter is remanded with instructions to the trial court to determine the issue of good cause upon the evidence now before it and such other evidence as may be offered, and to enter its order upon plaintiff’s motion in accordance with that determination.” 179 Cal.App.2d, p. 129, 3 Cal.Rptr., p. 627, 86 A.L.R.2d, pp. 135, 136, 137, 138

Reliance is placed upon Federal Decisions on the ground of similarity between Federal Rules and our own Rules of Civil Procedure. However, the similarity is not close in respect to discovery of testimony of adversary’s expert. Our own rules make no specific provision for such discovery, whereas the Federal Rules provide:

“(4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
“(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, (ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate.
“(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.” 4 Moore’s Federal Practice, R 26

It does appear, however, that the Federal Rules recognize the “rule of fairness” referred to in Grand Lake Drive In v. Superior Court, supra.

In 86 A.L.R.2d at 140 there is a comprehensive annotation of authorities on discovery of expert testimony. In each of said cases, the Court sought to reach a fair conclusion, giving weight to all of the various material considerations such as fairness to the party employing the expert, the urgency of the need of his testimony, the alternate sources of the same information, the needs and rights of the adjudicating court, and the overall effect upon the trend of discovery practice.

In the present case, this Court does not consider that the facts presented heretofore are sufficient grounds for granting the exceptional relief of seizing by subpoena the fruits of diligence and expenditure of money by the defendant. There is no showing of any particular difficulty in sending the broken parts to Atlanta, Georgia for examination.

Plaintiff cites Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 460 (1947), but concedes that said authority was concerned with the contents of a lawyer’s file under the “work product” doctrine.

Plaintiff concedes that discovery from opponent’s expert is not ordinarily allowed where experts are plentiful and the same information is available from other experts.

Plaintiff cites Sachs v. Aluminum Co. of America (1948, C.A. 6 Ohio), 167 F.2d 570, however that case involved factual information derived from x ray examination and tests, and did not include expert opinion in the strict sense of requiring the further exercise of or communication of expert knowledge. Furthermore, Sachs was a contempt proceeding for refusing to answer, rather than a proceeding, such as this, to determine in advance what is discoverable. Also, Sachs was based upon the Federal Rules which specifically provide for discovery from experts, whereas our own Tennessee Rules make no such specific provision.

Plaintiff also cites Bergstrom Paper Co. (1947 D.C.Wis.), 7 F.R.D. 548, however that case also arose under the Federal Rules and further rested in part upon prior stipulation and waiver of objection.

Plaintiff also cites United States v. Meyer, (C.A. 9 1968) 398 F.2d 66, however that was a condemnation case. As previously observed, this Court has already spoken on the subject of discovery from appraisers in condemnation cases. Moreover the cited authority rests upon the Federal Rules, which differ from the Tennessee Rules, and upon a report of a Federal Judicial Conference Committee which is not recognized as an authority by Tennessee courts.

In Sanford Construction Co. v. Kaiser Aluminum & Chemical Sales, Inc. (E.D.Ky.1968), 45 F.R.D. 465, cited by plaintiff, defendant was allowed to discover the reports of experts in regard to examination of aluminum pipe where the facts were no longer available to defendant or its experts. This was a classic example of “good cause” for making an exception to the general rule.

Plaintiff cites Henlopen Hotel Corp. v. Aetna Insurance Co. (D.Delaware 1963), 33 F.R.D. 306 wherein the roof damage which had been examined by experts was no longer available for examination by other experts.

In Hoagland v. Tennessee Valley Authority (E.D.Tenn.1963), 34 F.R.D. 458, the Court allowed plaintiff to inspect a written report of defendant’s safety engineer, but declined to allow examination of written reports prepared by and containing conclusions of an expert metallurgist. The Court said:

“[3] The majority of the district courts have held that conclusions of experts are not discoverable. Maginnis v. Westinghouse Electric Corp., D.C., 207 F.Supp. 739, 740.
“The Sixth Circuit held in the case of Sachs v. Aluminum Co. of America, 167 F.2d 570, that an expert in X-ray metal-lography, who was engaged by counsel in a patent case to make tests and X-ray photographs of samples of metal furnished him, could not refuse to answer questions propounded to him by counsel for the other party while giving a deposition relating to information obtained by the tests on the ground that it fell within the ‘attorney-client privilege.’ ■
“The question as to whether experts are required to give their conclusions appear to have not been made in that case, and the decision does not solve the problem under consideration.
“Professor Moore states the rule governing discovery of opinions of experts as follows:
■ ‘The court should not ordinarily permit one party to examine an expert engaged by the adverse party, or to inspect reports prepared by such expert, in the absence of a showing that the facts or the information sought are necessary for the moving party’s preparation for trial and cannot be obtained by the moving party’s independent investigation or research.’ 4 Moore, Federal Practice § 26.24, (2d Ed. 1950), p. 1531.” 34 F.R.D., 460, 461

Certain principles of fairness should govern the allowance of discovery by one party of the testimony of experts employed by adversary party. Among these are:

1. Initially each party should be required to pursue his investigation independently and with due diligence, including the employment and use of experts.

2. Initially, neither party should be permitted to obtain by discovery the factual information accumulated by the investigation of adversary’s experts nor to obtain the benefit of any skill or expertise of such experts.

3. If the factual information is no longer available for presentation to other experts for their opinion, then the discovery of factual information in the hands of adversary’s experts should be allowed in order to enable other experts to form their opinions upon the same facts.

4. If one party has employed the only available expert, this should not deprive the court of the benefit of his testimony. In such event, such an expert should be declared the witness of the court, and his compensation should be borne equally by the parties or taxed as part of the costs.

5. After both parties have completed their investigation through experts, then each party is entitled to reasonable notice of the nature and tenor of the testimony to be expected from the experts of his adversary. Whether such notice would be best given by exchanging copies of experts’ reports or by discovery depositions, or otherwise, is to be determined by the parties and the discretion of the Trial Judge under proper limitations and safeguards.

6. The facts observed by an expert do, indeed, constitute factual evidence which should be discoverable under the foregoing principles.

7. The conclusions which such an expert has reached and expects to announce in his testimony should be discoverable under the foregoing principles, if said expert will testify. If not, there would be no reason for discovery of his opinion.

8. Discovery should not be allowed of the scientific theories and mental processes employed by an expert in reaching his conclusions unless there is a joint disclosure of such information by both parties and such advance disclosure appears necessary to the proper cross examination and rebuttal of the witness.

9. Discovery should not be made an instrument for “picking the brain” of an expert, deriving from him information as to skills, processes and theories which might be transmitted to another expert for his edification and use in his investigation.

Applying the foregoing principles of fairness to the present case, plaintiff is not at this time entitled to take the discovery deposition of defendant’s expert. Rather, plaintiff should pursue his investigation through another expert. Whether and to what extent the parties and their experts will be required to make disclosure in the future will depend upon the application of the rule of fairness in the sound discretion of the Trial Judge.

The petition for certiorari and supersede-as is sustained. The order of the Trial Judge requiring that Dr. Donald Kinzer give his deposition at this time is vacated without prejudice to future applications for the same relief under different circumstances.

The costs of this proceeding are taxed against the plaintiff, Edward L. Lutz. The cause is remanded for further proceedings.

Reversed and Remanded.

SHRIVER, P. J., concurs.


source: Caselaw Access Project

author: SANDERS, Judge.

license: Public Domain

text:
    ACME METALS, INCORPORATED, v. J. D. WEDDINGTON.
    Court of Appeals of Tennessee, Eastern Section.
    March 14, 1978.
    Certiorari Denied by Supreme Court Aug. 7, 1978.

      Joseph J. Levitt, Jr., Knoxville, for appellant.
    W. Morris Kizer, of Frantz, McConnell & Seymour, Knoxville, for appellee.
   OPINION

SANDERS, Judge.

The Defendant has appealed from a judgment against him on a series of notes.

The Plaintiff-Appellee, Acme Metals, Inc., filed suit against the Defendant-Appellant, J. D. Weddington, on a series of five notes in the principal amount of $5,090.54 plus interest and attorney’s fees.

The Defendant, for answer, says he signed the notes but only as President of Knoxville Casket Company, a Tennessee corporation. The notes represented indebtedness of the Knoxville Casket Company to the Plaintiff. It was never understood or agreed Defendant would be personally liable on the notes. He also asked the Court to reform the notes to make them reflect the Knoxville Casket Company, Inc., as the true and correct maker of the notes.

The case was tried before the Circuit Judge who found the issues in favor of the Plaintiff and awarded judgment in the amount of $6,502.16.

The Defendant has appealed and assigned the following errors:

1. “The Knox County Circuit Court erred in failing to hold that Weddington executed the notes sued on in this cause in his capacity as President of Knoxville Casket Co., and erred in giving personal judgment against him.”

2. “The Knox County Circuit Court erred in failing to reform the notes as requested by the affirmative relief sought by appellant in the pleadings to reflect that the notes were corporate notes and not personal notes.”

For a number of years prior to the execution of the notes the Plaintiff had been selling the Knoxville Casket Company metal sheeting for caskets. The material was sold on open account. The account had become delinquent and at the time the notes were executed the indebtedness was something in excess of $9,000. In the latter part of 1972 General Chemical Company, by whom the Defendant was employed, purchased 50% of the stock of Knoxville Casket Company. At the same time two individuals each purchased 25% of the stock. The Defendant owned no interest in the casket company and was not employed by it. However, he was made president of the company in December, 1972, but remained an employee of General Chemical Company. In January, 1973, the casket company owed the Plaintiff $9,083.46. The Plaintiff was demanding its money and threatening to sue unless satisfactory arrangements were made to pay the account. On January 17, 1973, the Defendant wrote Mr. Robinson of Acme Metals the following letter:

“This is in response to your request for a plan to settle the account balance due to Acme Metals by Knoxville Casket Co.
“As new owners of this firm, we have been working diligently at the task of bringing this operation around so that all of its accounts are current.
“If you will accept the enclosed check in the amount of $500.00 and the series of notes at $500.00 quarterly with 7½% interest in settlement of this balance, we can assure you that they will be paid promptly as they become due.
“I trust that this arrangement is acceptable to you and will appreciate your acknowledgement.”

In response to this letter Mr. Robinson wrote the Defendant the following letter dated January 22, 1973:

“I am afraid we must insist that you repay our account much faster than you outlined in your letter of January 17, 1973. I am enclosing your $500.00 check and notes. We will accept payment on the following basis:
$1,000.00 2/1/73 $1,086.12 5/1/74
1,151.56 5/1/73 1,068.98 8/1/74
1,135.66 8/1/73 1,051.53 11/1/74
1,119.45 11/1/73 1,033.74 2/1/74
1,102.94 2/1/74 849.07 5/1/74
“The above schedule represents the repayment of $9,083.46 on a quarterly basis of $1,000.00 on the principle (sic) plus interest at the rate of 7½% per annum. I want to point out that we have waived the accrued interest up to the present time. The previous owners had agreed to pay us interest at the rate of 10% per annum and we will insist on this if we have to go to court, but we will be happy with the above payout if you will agree to it. Please send me your first payment and the notes and I will pass them along to Acme Metals.
“Let me know if you need any further information. Payments should be sent to:
“Acme Metals
P.O. Box 100
Loretto, Tenn. 38469”

In response to this letter the notes involved in this litigation were executed and sent to the Plaintiff. There appears on the face of each note the following pertinent provision: “90 days after date for value received Knoxville Casket Co. promises to pay to the order of Acme Metals” the face amount of the note. The signature of the Defendant appears on the face of each note without designating he is president or agent for Knoxville Casket Company.

The Plaintiff insists the Defendant is liable as a matter of law under T.C.A. § 47-3-403 since he signed his own name on the notes without showing he signed in a representative capacity. Plaintiff also insists Defendant agreed to give his personal note for the corporate indebtedness.

Defendant insists he never agreed to give his personal note for the corporate indebtedness and he should not be held liable under T.C.A. § 47-3-403.

As pertinent here, T.C.A. § 47-3-403 provides as follows:

“47-3-403. Signature by authorized representative. — (1) A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.
“(2) An authorized representative who signs his own name to an instrument
******
“(b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.”

Comment 3 under the above Code section makes it clear that since the note provides “Knoxville Casket Co. promises to pay” there would be no liability on the Defendant had his signature on the note been followed by the word “agent”, there being no question as to his authority to sign on behalf of the casket company. We think it is also clear that parol evidence is admissible as between the parties to establish whether or not the Defendant did, in fact, sign the notes as agent of the casket company. The Defendant insists he did; the Plaintiff insists he did not. Also see 11 Am.Jur.2d, Bills and Notes § 558, page 629.

Aside from the testimony of Mr. Robinson, who testified on behalf of the Plaintiff, we think all the evidence supports the contention of the Defendant. Mr. Robinson testified as follows:

“Q OK, when did you become aware that Mr. Weddington was involved with the casket company?
“A Well, it must be when I talked to him on the telephone. I guess that’s the first contact I had with Mr. Weddington.
“Q What position did Mr. Weddington have with Knoxville Casket Company?
“A President, he was President of Knoxville Casket Company.
“Q Did you discuss this account with him at that particular time?
“A I certainly did.
“Q At that time how far was the account behind?
“A About $9,000.00, I think.
“Q What did you want him to do about this particular account?
“A I wanted him to, well, I wanted him to pay up obviously, failing that then I wanted some personal notes.
“Q From whom?
“A From him.
“Q Did you tell him that?
“A Yes, I certainly did.
“Q Did he tell you that he did not—
“MR. LEVITT: Object, Your Honor, he is leading this witness.
“THE COURT: Don’t lead, Mr. Kizer, don’t lead the witness.
“Q Did Mr. Weddington ever tell you that he did not intend to sign a personal note?
“A No.”

It will be noted Mr. Robinson testified the Defendant never told him “that he did not intend to sign a personal note”. At no time did Mr. Robinson testify that Defendant told him he would or intended to sign a personal note. The Defendant, however, testified he never did agree to sign a personal note. In his brief the Defendant outlines a numerical list of facts and circumstances upon which he relies as supporting his contention and negating the contention of the Plaintiff. They are, in part, as follows:

“1) The account for which the notes were given began in 1969 and the last charge to the account was on June 23; 1971;
2) Weddington did not join Knoxville Casket until December, 1972;
3) Acme knew Weddington was president of Knoxville Casket Co. before the notes were signed;
4) Acme knew nothing about Wedding-ton’s personal financial standing;
5) The notes show on the face they were to be paid by Knoxville Casket Co.;
6) Acme knew a State representative was one of the owners of Knoxville Casket Co., but admitted never asking for a personal endorsement from any owner;
7) Weddington denied he was ever asked to personally stand for the debt of Knoxville Casket Co.;
8) Tom Jensen who made the arrangements for the notes with Acme said that there was never any discussion in his presence or in which he was involved concerning anyone with Knoxville Casket personally guaranteeing any debt to Acme;
9) The $500.00 notes first tendered to Acme and rejected because they would not pay the account fast enough were corporate notes;
10) Everyone concerned treated the notes as the obligation of Knoxville Casket Co. up until the suit was filed:
a) None of the written correspondence between any parties to the notes ever mentioned a personal obligation,
b) Correspondence between officials of Acme after the notes were received by Acme only referred to them as ‘Knoxville Casket Company’ notes, and related that ‘Knoxville Casket’ was told where to mail the payment checks,
c) Knoxville Casket made all the payments that were made on the notes,
d) Acme never set up a J. D. Weddington account on its books after receiving the notes, but set up a new ledger page in the name of Knoxville Casket Co. and posted payments to that account.”

A careful review of the record reveals there is evidence to support each of the contentions of the Defendant. The undisputed proof is that the notes which were sent to the Plaintiff in the above-quoted letter of January 17,1973, were the notes of Knoxville Casket Company. The conversations between Mr. Robinson and the Defendant all transpired prior to that time. However, in Mr. Robinson’s letter of January 22 in which he returned the notes no objection was made to their not being the notes of the Defendant instead of the company. The only reason given for returning the notes was “I am afraid we must insist that you repay your account much faster than outlined in your letter of January 17, 1973”. Also of interest is a transmittal letter by Mr. Robinson to the Plaintiff after he had received the notes here in dispute, in which he said:

“Here are the Knoxville Casket Company notes and the check for $1,000.00. Please note that the notes come due 90 days after the date on the note. The first note will be due May 1st, 1973.
“I have told Knoxville Casket to mail the checks direct to you. Let me know if they are late.”

We hold the evidence preponderates in favor of the Defendant and he has overcome the rebuttable presumption of liability under the above-quoted portions of T.C.A. § 47-3-403. The Defendant’s first assignment of error is sustained.

In view of our holding on this assignment, assignment No. 2 is pretermitted.

The judgment of the Trial Court is reversed and the case is dismissed.

The costs of this appeal, together with the costs of the Trial Court, are taxed to the Appellee.

GODDARD, J., concurring.

PARROTT, P. J., dissenting.


author: PER CURIAM.

text:
    The DALLAS COUNTY STATE BANK, Petitioner, v. George THIESS, Respondent.
    No. B-7685.
    Supreme Court of Texas.
    Nov. 1, 1978.
    Rehearing Denied Dec. 29, 1978.
    McCracken, Shields & Taylor, William H. Shields and John R. Slimp, Carrollton, for petitioner.
    Crowder, Mattox & Morris, A. Don Crow-der, Dallas, for respondent.
   PER CURIAM.

This suit originated when the Dallas County State Bank sought to collect on a delinquent promissory note. Thiess had previously guaranteed the note and had also signed a pledge agreement on certain certificates of deposit as collateral for the note. Before the Bank filed suit, it utilized this pledge agreement to offset some of Thiess’ indebtedness.

The trial, court granted the Bank’s motion for summary judgment and rendered judgment against Thiess. In its motion and the accompanying affidavits, the Bank asked for the face amount of the notes minus the amount it had offset by virtue of Thiess’ pledge agreement. There was no dispute as to the validity of the pledge agreement, the right of the Bank to use it and the certificates of deposit to offset the debt; nor was there any dispute as to the final amount due as computed by the Bank. Additionally, there was no objection by Thiess to the fact that neither the pledge agreement, itself, nor a certified copy was attached to either the motion or the affidavits. The affidavits in support of the Bank’s motion clearly mention the pledge agreement.

The court of civil appeals sitting in Tyler reversed the judgment of the trial court. 565 S.W.2d 82. Although the court of civil appeals had originally affirmed the trial court, it reversed the judgment on Motion for Rehearing because of the lack of the original or certified copy of the pledge agreement.

Rule 166-A(e) of the Texás Rules of Civil Procedure provides in part that “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” The court below reasoned that the affidavits mentioned the pledge agreement and did not include a copy of it; so the Bank did not satisfy Rule 166-A of the Texas Rules of Civil Procedure. We disagree.

The pledge agreement and the offset by the Bank are merely collateral matters in its suit against George Thiess. The offset and the pledge agreement which enabled the Bank to offset the amount due it are in the nature of affirmative defenses and would have had to have been raised by Thiess had the Bank not voluntarily reduced the amount owed it. Chapman v. Tyler Bank & Trust Co., 396 S.W.2d 143 (Tex.Civ.App.—Tyler 1965, writ ref’d n. r. e.).

As this court stated in Southwestern Fire and Casualty Co. v. Larue, 367 S.W.2d 162 (Tex.1963):

Similarly, Rule 94 provides that other affirmative defenses including that of payment, fraud, release, and the statute of limitations must be affirmatively pleaded. Under Rule 94 and Rule 95 payment is thus an affirmative defense on which the defendant has the burden of proof .

An offset by the Bank is such a payment which must be affirmatively pleaded. As such it is not an essential element of the Bank’s suit against Thiess.

In Southwestern Fire & Casualty Co. v. Larue, supra, the company brought suit seeking $2,747.97 based upon a promissory note for $4,871.93. The trial court rendered a summary judgment for Southwestern Fire. The court of civil appeals reversed that judgment by holding that the difference between the sum sought and the sum due on the face of the note created an ambiguity and a fact issue. This court reversed that holding and affirmed the judgment of the trial court because the petition created no ambiguity in that the “. company could recover no more than the amount sued for, and the burden was upon Larue to prove payment or release of any further sums.”

In the present case the Bank, by mention of the pledge agreements, explained the difference between the amount due on the face of the .note and the amount for which it sued. While it is no doubt preferable that all documents be attached, in a case such as this where the missing documents do not pertain to an element of the movant’s suit, and in reality are part of what should have been an affirmative defense, Rule 166-A(e) of the Texas Rules of Civil Procedure will not require a reversal when the movant fails to attach them.

We regard the decision in this case to be in conflict with Southwestern Fire & Casualty v. Larue, supra. Accordingly, the writ of error is granted; and without hearing oral argument, we reverse the judgment of the court of civil appeals and affirm the judgment of the trial court. Rule 483, Texas Rules of Civil Procedure.


author: ROBERTS, Judge.

text:
    James Eugene FLOYD, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 57623, 57624.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 20, 1978.
    Appellants’ Motion for Rehearing En Banc Denied Nov. 8, 1978.

      Randy Schaffer, Houston, for appellant.
    Henry Wade, Dist. Atty., John Tatum and Joe M. Revesz, Asst. Dist. Attys., Dallas, for the State.

      Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

These are appeals from two convictions for aggravated promotion of prostitution. Appellant waived trial by jury and entered pleas of guilty to both indictments. Punishment was assessed by the court in each case at six years’ confinement in the penitentiary.

In his sole ground of error, appellant challenges the constitutionality of V.T.C.A., Penal Code, Sections 43.02(a)(1) (Prostitution) and 43.04 (Aggravated Promotion of Prostitution) on the grounds that they are “unconstitutionally indefinite, uncertain, vague and overbroad, in violation of the due process clause of the Constitutions of the United States and the State of Texas.” We affirm.

Section 43.04 provides:

“Aggravated Promotion of Prostitution
“(a) A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes.
“(b) An offense under this section is a felony of the third degree.” (Emphasis supplied).

Appellant urges that Section 43.04 is unconstitutionally vague because the term “prostitution enterprise,” as used in the statute, is capable of various meanings. He further urges that the statute is rendered unduly confusing and ambiguous by its use of the term “uses.”

It is true that a law must be sufficiently definite that its terms and provisions may be known, understood and applied; otherwise, it is void and unenforceable. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Cr.App.1978). However, a statute is not rendered unconstitutionally vague merely because the words or terms are not specially defined. Powell v. State, 538 S.W.2d 617, 619 (Tex.Cr.App.1976).

A statute which is arguably vague may be given constitutional clarity when aided by the standard rules of statutory construction. One such rule is that terms not defined in a statute are to be given their plain and ordinary meaning. Courtemanche v. State, 507 S.W.2d 545, 546 (Tex.Cr.App.1974). Moreover, words defined in dictionaries and with meanings so well known as to be understood by a person of ordinary intelligence are not to be considered vague and indefinite. Powell v. State, supra at 619.

In Taylor v. State, 548 S.W.2d 723 (Tex.Cr.App.1977), we applied the foregoing rules of construction to Section 43.04 and defined “prostitution enterprise” as “a plan or design for a venture or undertaking in which two or more persons offer to, agree to, or engage in sexual conduct in return for a fee payable to them.” Id. at 723. Accordingly, we hold that the term “prostitution enterprise” is not vague, indefinite or ambiguous.

Nor is the word “uses,” as it is found in the context of Section 43.04, confusing and ambiguous. Under Section 43.04 a prostitution enterprise must “use” two or more prostitutes. Appellant contends that this word creates ambiguity and confusion because the Legislature failed to specify the particular purpose for which two or more prostitutes must be used. This contention is without merit. Regardless of legislative syntax, the word “uses,” as it is found in the context of Section 43.04, is capable of only one meaning. Both common logic and the rules of grammar dictate that a prostitution enterprise that uses prostitutes necessarily uses them for prostitution.

We hold that the terms complained of by appellant do not render Section 43.04 so ambiguous and vague that men of ordinary intelligence would guess at its meaning or differ as to its application. We further hold that appellant had sufficient notice of the type of conduct proscribed by the statute and therefore he was not deprived of procedural due process. See Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439, 458 (1974).

Appellant also contends that Section 43.04 suffers from the constitutional infirmity of “overbreadth” because it fails to except from its reach “conduct which is perfectly proper and legitimate.” In support of this contention, appellant advances several hypothetical situations in which he argues that the actor’s conduct, while technically falling within the reach of Section 43.04, should not be penalized because there is no illicit motive involved.

An intriguing hypothetical presented by appellant involves a situation where a man supports and finances two mistresses whom he knows to engage in prostitution in his absence. Under a literal application of Section 43.04, appellant argues, the hypothetical man would be guilty of aggravated promotion of prostitution. We cannot agree.

The plain and ordinary meaning of the term “prostitution enterprise,” as it is used in Section 43.04, is synonymous with, the term “prostitution business.” The term “prostitution enterprise” includes the concept of a willingness or desire on the part of the entrepreneur to promote and further the venture or undertaking and bring it to a successful conclusion. Thus, where it is the actor’s immediate objective to promote prostitution as a particular field of endeav- or, his conduct is punishable under Section 43.04. In the hypothetical situations presented by appellant, the actor, although he had passive knowledge of the surrounding circumstances, was not engaged in a “prostitution enterprise” as that term is commonly understood and accepted because there was no immediate objective to promote prostitution as a particular field of endeavor. Passive knowledge of surrounding circumstances alone does not constitute an enterprise or business.

Appellant advances another ingenious hypothetical in which he discusses so-called sexual dysfunction clinics, apparently a recent phenomenon in this country.

As we have been informed by appellant, these clinics provide sexual therapy for persons who experience problems in'their sexual relations. The therapy provided by the clinic may, on some occasions, include the act of sexual intercourse between the patient and “sex surrogate,” a paid partner furnished by the clinic. The patient is charged a pre-arranged fee by the clinic who in turn compensates the surrogate. Appellant argues that those who operate a sexual dysfunction clinic in Texas could be prosecuted for aggravated promotion of prostitution if the therapy provided involves sexual conduct as defined in V.T. C.A., Penal Code, Section 43.01(4).

We decline to pass upon the legality vel non of such an enterprise under our present Penal Code. We note, however, that if the Legislature intended medical therapy to be an affirmative defense in offenses of this nature, it would have so provided. Accordingly, we hold that appellant’s hypothetical concerning sexual dysfunction clinics should properly be addressed by the Legislature as a matter which is wholly within their province.

We have thoroughly considered appellant’s contentions and find them to be without merit. Accordingly, appellant’s ground of error is overruled.

The judgments are affirmed.

      . Unless otherwise indicated, all statutory references are to Texas Penal Code.

      . We note that the thrust of appellant’s constitutional attack is aimed at Section 43.04 and that his challenge to Section 43.02(a)(1) is by necessary implication alone. V.T.C.A., Penal Code, Sections 43.01 and 43.02(a)(1) define “prostitution” as offering to, agreeing to, or engaging in sexual conduct in return for a fee payable to the actor. See also Taylor v. State, 548 S.W.2d 723 (Tex.Cr.App.1977). We hold that this statutory definition, when measured by common understanding and practices, fairly apprised appellant of the nature of the conduct it proscribes. Farmer v. State, 540 S.W.2d 721, 722 (Tex.Cr.App.1976). Hence, appellant’s constitutional challenge to Section 43.02(a)(1) must fail and our further consideration of his ground of error will be limited to his challenge to Section 43.04.


author: ONION, Presiding Judge.

text:
    Glen Wayne WALTON alias Glen Waymen Walton, Appellant, v. The STATE of Texas, Appellee.
    No. 54724.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 29, 1978.
    Rehearing En Banc Denied Jan. 17, 1979.
    C. Logan Dietz, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Robert A. Shults and Robert A. Moen, Asst. Dist. At-tys., Houston, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for robbery, where a life sentence was imposed by the court following a jury verdict which included a finding that the appellant had been twice before convicted of felonies. See V.T.C.A., Penal Code, § 12.42(d).

At the outset we are confronted with appellant’s contention that the court erred in overruling his objection to the court’s charge at the guilt stage of the trial authorizing a conviction upon a theory or theories not charged in the indictment.

V.T.C.A., Penal Code, § 29.02, provides:

“(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
“(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
“(b) An offense under this section is a felony of the second degree.”

The court charging the primary offense alleged that the appellant on or about July 18, 1975:

“did then and there unlawfully while in the course of committing theft of money owned by Jospa Nelkin, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly cause bodily injury to the Complainant.”

The indictment thus charged robbery under V.T.C.A., Penal Code, § 29.02(a)(1), although the indictment did not allege the act was done recklessly.

In the charge the court abstractly instructed the jury as to both modes of robbery under said § 29.02, and instructed the jury as to the meaning of “recklessly.”

In applying the law to the facts, the court instructed the jury:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 18th day of July, 1975, in Harris County, Texas, the defendant, Glen Wayne Walton, did, without the effective consent of Jospa Nelkin, the owner, take and exercise control over the corporeal personal property of Jospa Nelkin, to wit, money, from the possession of Jospa Nel-kin, with intent then and there to deprive Jospa Nelkin of said money, and that the said defendant, in so doing, and with intent to acquire and maintain control of said money, intentionally, knowingly, or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, then you will find the defendant guilty of robbery as charged in the indictment.” (Emphasis supplied.)

The appellant objected to the charge pointing out to the court that underlined portions authorized conviction upon a theory or theories not alleged in the indictment. The objection was overruled.

In Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977), a prosecution involving aggravated robbery, it was held that the charge to the jury was fundamentally erroneous as authorizing conviction under every conceivable theory under statutes rather than limiting conviction to theory alleged in the indictment. Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977), and Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App.1976), were cited with approval.

Since the charge in the instant case authorized a conviction if the appellant “recklessly” caused bodily injury not charged in the indictment and also authorized conviction under the second mode of robbery under V.T.C.A., Penal Code, § 29.-02(a)(2), which was likewise not charged in the indictment, the charge was fundamentally defective. In addition to being fundamentally defective, the appellant’s objection called the matter to the trial court’s attention. See and cf. Shaw v. State, 557 S.W.2d 305 (Tex.Cr.App.1977).

The State calls attention to Williams v. State, 535 S.W.2d 352 (Tex.Cr.App.1976), where a robbery conviction was upheld despite the fact that a theory not charged in the indictment was submitted to the jury. While the charge was held erroneous, the error was held harmless since there was no objection to the charge, and further it was unlikely the jury was confused or misled because there was no evidence that the complainant received any bodily injury (the theory not charged in the indictment), and since the evidence was sufficient to sustain a conviction for aggravated robbery as originally charged.

Williams was not mentioned in Davis or in Robinson, where the charges there were held to be fundamentally defective even though there was no objection thereto. In Dowden, Williams was distinguished simply by noting that Dowden timely objected to the charge (footnote # 2, 537 S.W.2d at p. 6).

Whatever the continued viability of Williams, it is easily distinguishable from the instant case. First, there was an objection to the charge, the evidence would have supported a conviction under the theory alleged as well as under V.T.C.A., Penal Code, § 29.02(a)(2). Further, the court charged on “recklessly” committing the offense under § 29.02(a)(1), which was not alleged in the indictment. Cf. Dowden v. State, supra.

The judgment is reversed and the cause is remanded.

VOLLERS, J., concurs in the result because there was an objection to the charge.

      . In Robinson v. State, 553 S.W.2d 371, 373 (Tex.Cr.App.1977), this court wrote:
      “The elements of robbery with bodily injury under V.T.C.A., Penal Code, § 29.02, are: (1) a person (2) in the course of committing theft (3) with intent to obtain or maintain control of property (4) intentionally, knowingly or recklessly (5) causes bodily injury to another.
      “The elements of robbery by threats or fear are: (1) a person (2) in the course of committing theft (3) with intent to obtain or maintain control of property (4) knowingly or intentionally (5) threatened or placed another in fear of imminent bodily injury or death. “It is observed as to the culpable mental states involved in the two ways of committing robbery knowingly or intentionally are common to both while recklessly is applicable only to robbery with bodily injury.”

      . In Dowden v. State, 537 S.W.2d 5, 7 (Tex.Cr.App.1976), the defendant complained because the court included in the charge portions of the statutes that were neither pled in the indictment nor supported by proof at trial. There this court said:
      “. . . This practice at best is useless and at worst may confuse and mislead the jury and, therefore, prejudice a defendant. This Court in the past has had occasion to caution against the enumeration in the charge of portions of a statute that could not be relied upon for a conviction. E. g., Griffith v. State, 142 Tex.Cr.R. 559, 155 S.W.2d 612; see Grudzien v. State, Tex.Cr.App., 493 S.W.2d 827; Simons v. State, Tex.Cr.App., 34 S.W. 619; cf. Mauldin v. State, Tex.Cr.App., 463 S.W.2d 10. We reiterate that admonition.”

      . The State contends the appellant did not properly preserve the error, if any, since the objection was not made in accordance with Article 36.14, V.A.C.C.P. It is true that the objection was not in writing, but it was timely dictated to the court reporter in the presence and consent of the court and was subsequently transcribed showing the ruling of the court and was included in the appellate record. The State’s position is without merit.


author: DALLY, Judge.

text:
    Ex parte Erna Rene ROBBINS.
    No. 59876.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 13, 1978.
    Rehearing En Banc Denied Jan. 17, 1979.
    Jimmy Phillips, Jr., Angleton, for appellant.

      Carol S. .Vance, Dist. Atty. and Calvin A. Hartmann, Asst. Dist. Atty., Houston, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a habeas corpus proceeding in which the appellant was remanded to custody for extradition to the State of New Mexico.

The Governor’s Warrant which was admitted in evidence recites that the appellant “ . . . stands convicted of the crimes of possession of burglary tools and burglary before the proper authorities by judgment, order granting probation and bench warrant and thereafter violated the terms of her probation and that said fugitive has taken refuge in the State of Texas . . ” The appellant offered and the court admitted in evidence the papers supporting the Governor’s Warrant.

Although a prima facie case may be established by the introduction of the Governor’s Warrant regular on its face, such prima facie case may be defeated by the supporting papers regardless of which party may have introduced the supporting papers. Ex parte Brown, 450 S.W.2d 647 (Tex.Cr.App.1970); Ex parte Wilson, 437 S.W.2d 569 (Tex.Cr.App.1968).

The appellant complains that the trial court erred in remanding the appellant for delivery to the representatives of the demanding state for extradition because the extradition demand was not accompanied by a copy of a judgment of conviction or the sentence imposed in execution of a judgment as required by Art. 51.13, Sec. 3, V.A.C.C.P.

Art. 51.13, Sec. 3, V.A.C.C.P., reads:

“No demand for the extradition of a person charged with crime in another State shall be recognized by the Governor unless in writing, alleging, except in cases arising under Section 6, that the accused was present in the demanding State at the time of the commission of the alleged crime, and that thereafter he fled from the State, and accompanied by a copy of an indictment found or by information supported by affidavit in the State having jurisdiction of the crime, or by a copy of an affidavit before a magistrate there, together with a copy of any warrant which issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the Executive Authority of the demanding State that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that State; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the Executive Authority making the demand; provided, however, that all such copies of the aforesaid instruments shall be in duplicate, one complete set of such instruments to be delivered to the defendant or his attorney.” (Emphasis added.)

The papers of the demanding State which purport to support the Governor’s Warrant do not contain a copy of an indictment, information supported by affidavit, an affidavit made before a magistrate together with a warrant issued thereon, a judgment, or a sentence imposed in execution of a judgment. This Court has held that a copy of an indictment which was with the supporting papers without a judgment or sentence sufficiently complied with Art. 51.13, Sec. 3, V.A.C.C.P. even though the fugitive had already been convicted. Ex parte Goins, 515 S.W.2d 918 (Tex.Cr.App.1974). See also Ex parte Gray, 426 S.W.2d 241 (Tex.Cr.App.1968). It appears we have not been presented with the same facts as we are presented in this appeal. In Blasi v. State, 192 So.2d 307 (Fla.App.1966) an order remanding the fugitive for extradition was reversed when the demanding papers did not contain a copy of the judgment of conviction or a sentence imposed in execution of the judgment even though the papers did recite that the fugitive had been charged with, pled guilty to, and been convicted of a certain crime, and had been placed on probation. Cf. Ex parte Wheeler, 528 S.W.2d 229 (Tex.Cr.App.1975); Byers v. Leach, 187 Colo. 312, 530 P.2d 1276 (1975).

Included in the papers in the instant case are a petition to revoke probation and an order to issue a bench warrant for appellant. The order to issue a bench warrant recites that the appellant was granted probation and that a hearing should be held to determine whether the appellant had violated the terms of her probation. Although the Governor’s Warrant recites that a judgment of conviction and an order granting probation are included we do not find them in any of the supporting papers. Since a copy of none of the instruments enumerated in Art. 51.13, Sec. 3, V.A.C.C.P., that should accompany the demand for extradition are included in the papers in this case the requirements of that article were not met. Therefore, the demand for extradition should not have been recognized and extradition should not have been authorized until the required instruments were furnished by the demanding state.

The judgment is reversed and the cause is remanded.


author: W. C. DAVIS, Judge.

text:
    Patricia SHULTS, Appellant, v. The STATE of Texas, Appellee.
    No. 55451.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Jan. 3, 1979.
    Jerrold R. Davidson, Brownsville, for appellant.
    Selden N. Snedeker, Dist. Atty. and W. R. McNeil, Asst. Dist. Atty., Brownsville, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for the possession of heroin; punishment is imprisonment for five years, probated.

Appellant’s only contention is that the evidence is insufficient to sustain the conviction because appellant possessed only a “trace” of heroin. We agree and reverse the judgment.

Appellant had gone to the Cameron County Jail on June 17, 1976, to visit an inmate. A search of appellant by a matron revealed a balloon in the back of appellant’s mouth. Subsequent chemical analysis showed that the balloon contained a small amount of marihuana and a trace of heroin.

The case was tried before the court. The only evidence offered as to the amount of the heroin is the following stipulation:

“COMES NOW, counsel for the State, Counsel for the Defendant and the Defendant in open Court and make this their Stipulation:
I.
“That the white powdery substance inside of the baloon (sic) seized from the defendant herein on the 17th day of June, 1976 by Maria Isabel Garza is a controlled substance, to-wit: Heroin.
II.
“That Don C. Taylor inverted the ba-loon (sic), washed the substance and analyzed it, the analysis revealed that it is Heroin.
III.
“That the substance was not of a quantity sufficient to weigh and is therefore reported to be a ‘trace’ of Heroin.”

The stipulation reflects that the balloon found in appellant’s mouth contained only a trace of heroin so small that it could not be quantitatively measured. When the quantity of a substance possessed is so small that it cannot be quantitatively measured, there must be evidence other than its mere possession to prove that the defendant knew the substance in his possession was a controlled substance. Daniels v. State, 574 S.W.2d 127 (Tex.Cr.App., 1978); Reyes v. State, 480 S.W.2d 373 (Tex.Cr.App.1972); Cantu v. State, 546 S.W.2d 621 (Tex.Cr.App.1977). See Greer v. State, 163 Tex.Cr.R. 377, 292 S.W.2d 122 (1956); Coleman v. State, 545 S.W.2d 831 (Tex.Cr.App.1977); Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171 (1957).

Appellant admitted that she had secreted a small amount of marihuana in the balloon, but denied any knowledge of the heroin. The State proved only that appellant possessed the heroin and did not prove that appellant knowingly did so. Since the State failed to prove an essential element of its case, the evidence is insufficient to sustain the conviction.

The judgment is reversed and the prosecution ordered dismissed.


author: DOUGLAS, Judge.

text:
    Rose Anderson WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 55469.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 3, 1979.

      Pat McDowell, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John Tatum, Kelly W. Loving and Bob Hinton, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

Rose Anderson Williams appeals her conviction for aggravated robbery. Punishment was assessed by the jury at fifty years.

Williams contends that the court erred in failing to submit several requested charges to the jury, that evidence of prior federal convictions was not properly authenticated, that the prosecutor made an improper jury argument and that an extraneous offense was improperly admitted. Appellant also contends that the State failed to prove that the knife used in the commission of the robbery was a deadly weapon and therefore the evidence is insufficient.

Early in the evening of March 10, 1976, appellant and Robert Williams entered the Town East T.V. store in Mesquite. Robert Williams pulled a pistol, grabbed Mike Lindsey, a customer, and demanded the store’s money from Randy Puckett, the complainant. A scuffle ensued and both Lindsey and Puckett were stabbed by appellant. Lindsey testified that he was stabbed twice in the back. He was treated at a hospital for this injury. He was not able to work for a week and a half because of the injury. Puckett testified that he received multiple stab wounds. The most serious was a gash in his left shoulder. The muscle came out of his skin and had to be placed back into his shoulder by a bystander who administered first aid. The wound bled profusely. Puckett went to the hospital where he received twenty-five stitches to close his shoulder wound. Puckett was unable to lift anything for three months after the attack.

A knife is not a deadly weapon per se. Limuel v. State, 568 S.W.2d 309 (Tex.Cr.App.1978); Windham v. State, 530 S.W.2d 111 (Tex.Cr.App.1975). In an aggravated robbery case involving a knife, the State must prove the knife is a deadly weapon which is defined as something “that in the manner of its use or intended use is capable of causing death or serious bodily injury.” V.T.C.A., Penal Code, Section 1.07(a)(ll)(B). “Serious bodily injury” is defined, in part, as injury that causes “protracted loss or impairment of the function of any bodily member or organ.” V.T.C.A., Penal Code, Section 1.07(a)(34).

We have recently clarified our law and stated that expert testimony is not required to prove that a weapon is deadly. Denham v. State, 574 S.W.2d 129 (No. 56,136, delivered December 13, 1978); Limuel v. State, supra. Thus, no one needs to testify to the conclusion that the weapon was capable of producing serious bodily injury. The jury is free to consider all of the facts of the case, including any actual wounds inflicted or words spoken by the appellant, in deciding if the weapon is deadly.

In the instant case appellant used the knife to stab Puckett and Lindsey several times. The most serious wound was inflicted on Puckett’s shoulder. The wound was large enough for a muscle to protrude from the body. There was considerable bleeding and twenty-five stitches were required to close the woúnd. We hold that the injury which caused Puckett to lose lifting power in his arm for three months constitutes a “protracted impairment . of the function of any bodily member,” so that the wound would be classified as serious bodily injury. See Calvin v. State, - S.W.2d - (No. 53,829, delivered December 13, 1978) (opinion concurring in part and dissenting in part). Because the knife did, in fact, inflict a serious wound, we conclude that the evidence was sufficient to prove the knife was used in such a way that it was capable of causing serious bodily injury.

Williams next contends she was entitled to her requested charges on the lesser included offenses of attempted robbery, aggravated assault, assault and theft. Our law provides that “a charge on the lesser [included offense] is not required unless there is testimony raising such issue that appellant, if guilty, is guilty only of the lesser offense.” Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978); McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974). The State’s evidence showed all of the elements of aggravated robbery. Appellant did not take the stand. Robert Williams did testify for appellant; his testimony was that appellant did not stab anyone and had left the store when a fight began. Robert Williams’ testimony indicates that appellant was not guilty of any offense. Thus, the State’s evidence indicated that appellant was guilty as charged; the defense evidence indicated she was not guilty of any offense. Appellant was not entitled to a charge on any lesser included offense.

Williams next argues she was entitled to requested charges on the defense issues of necessity, mistake of fact and defense of a third person. A defendant is entitled to a charge on a defensive issue only if the evidence raises such an issue. Brooks v. State, 548 S.W.2d 680 (Tex.Cr.App.1977). The only evidence which arguably raises these issues was the testimony of Robert Williams. But his testimony also indicates that appellant did not stab anyone and that she was not in a position to perceive the facts giving rise to the defenses. His testimony does not, therefore, raise all of the elements of the defenses. The court’s refusal to submit these charges was proper.

Appellant makes several challenges to the State’s proof of her prior federal convictions. First, appellant argues a fingerprint card constituted inadmissible hearsay. The record reflects that the custodian of that record testified to all the requisites of the business records exception. Article 3737e, V.A.C.S. The card was properly admitted. Second, appellant complains of extraneous and prejudicial words on various State’s exhibits. The record reflects that all of the objected to portions were removed. Finally, Williams, urges that the federal conviction papers show she was originally charged with six counts but was finally convicted of only three and that the other three counts were extraneous offenses. Appellant has misinterpreted the federal conviction papers. In addition to other indications that appellant was finally convicted of all six counts, we note these words in the judgment revoking probation:

• “. . the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a term of thirteen (13) months on each of the six counts to run concurrently with each other.”

These contentions are overruled.

Complaint is next made of the following jury argument during the punishment phase of the trial:

“. . . the law says thirdly that the sentence you set out to act as a deterrent to crime because you twelve folks are thinking about Rose Williams; you’re thinking about Joe Whitfield [appellant’s husband], but you’ve got a million people in this county that are relying on you and the next jury after you and the next one after that to protect them from the Rose Williams and the Robert Williams that are prowling our street.”

Appellant’s objection that this argument is an appeal to community expectation was overruled. It is a proper argument that a sentence ought to deter crime and therefore protect the community.

Finally, appellant argues that evidence of an extraneous offense was improperly admitted. The State, in rebuttal, offered evidence that appellant and Robert Williams had, earlier in the day, robbed a gift store using a very similar technique to the one they used in the robbery of the TV store. Appellant argues that because identity was not an issue, and appellant did not testify, the extraneous offenses were not admissible. Robert Williams’ testimony denied any attempt to commit a robbery. He testified that he and Puckett simply got into a fight and appellant exited the store as soon as it began. The extraneous offense tended to refute a defensive theory that appellant did not participate in the robbery. For such limited purpose, it tended to rebut Robert Williams’ testimony and. was admissible.

There is no reversible error. The judgment is affirmed.

TOM G. DAVIS, J., concurs in the result.


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    Marvin NORMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 55809.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 3, 1979.
    Judd B. Holt, Wichita Falls, for appellant.
    Timothy D. Eyssen, Dist. Atty., Wichita Falls, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

Marvin Norman appeals his conviction for aggravated robbery. The jury assessed his punishment at ten years.

Jan Bilger was the manager of a Jiffy Food Store in Wichita Falls. Sandy Gus-tafson was visiting her in the store. Bilger testified that shortly before midnight a man entered the store, spoke to her and stayed three or four minutes. When a woman entered, the man left. After the woman made her purchase and left, the man returned and stayed in the store for three or four minutes. Then he suddenly grabbed Gustafson, who was standing near the counter, around the neck and pointed a gun at Bilger and said, “The bag”, “Give me the bag”. He said, “the bag, the bag, the bag,” and he “motioned the gun toward the desk . . She then picked up the bag of money and gave it to him. He made her lie down on the floor and he left the store. She related that when he first walked out both of the women noted that it was “kind of strange somebody walking to the back and staying so long and walking to the front.” She was about a foot and a half from him and they were facing each other for about a minute until she finally discovered what he wanted. She identified the man in the courtroom as the man who robbed her.

After the robbery she went to the police station. A detective put several pictures on a desk and she picked out the one of Norman. She testified that her courtroom identification was “from seeing the man twice when he was in my store.”

Sandy Gustafson testified that she was in the Jiffy Food Store the night of the robbery visiting Jan Bilger. She testified that appellant came into the store and went to the back. He left and later returned. She testified to substantially the same things as Bilger did. She related that the man grabbed her around the neck and pointed a gun at Bilger and told her to give him the bag. This she did. “He told her to lay on the floor and threw me down and then he ran out the store.”

Officer William Horton testified that he talked to Bilger and Gustafson and that Bilger gave him a fairly general description of the robber — that he was a black male about 5'10", wearing dark clothing, dark shirt, dark pants, had a hat on and had on sunglasses.

The main contention is that reversible error was committed in not furnishing counsel for defense the statement made by Bilger at the police station for cross-examination purposes. The assistant district attorney, who was in charge of the case, testified that he had never seen her statement. He testified that earlier he read everything that he had in his file to counsel for the defense. The prosecutor further related that he called Officer Vaden of the Wichita Falls Police Department. Vaden informed him that a thorough search for several hours had been made but a copy of her statement could not be found.

Officer Cawyer testified that he had seen the police reports to refresh his memory before testifying, a part of the report which he had with him was given to defense counsel. Officer Horton testified that he questioned Bilger and Gustafson. There is no showing that defense counsel requested any report made by Gustafson to see if there was any conflict in the statements made by Bilger and her testimony at the trial. There is no indication that the two women gave any conflicting statements to the officer or to anyone else. The only difference in their testimony was that one of the women testified she thought the robber might have been five feet, ten inches tall, but that she was not sure because he “slouched” over when he walked. . The other woman testified that he was possibly five feet, eight inches tall.

The testimony of Gustafson was sufficient to show that appellant committed the robbery without considering the testimony of Bilger. We hold that the inability of the prosecutor to produce the statement of the witness Bilger was harmless error under the circumstances of this case. However, it would have been a better practice for the prosecution to have called an officer or officers to testify concerning the failure to locate the missing statement.

Appellant also contends that an extraneous offense was proved. Clarence Boyd, Jr., testified that at approximately 7:00 p. m. he saw “these people come by that had bothered my boy, jumped my boy.” The court instructed the jury to disregard that remark. There is no showing that appellant was in the group that bothered or “jumped” the boy. The instruction of the court cured any error that was made when the witness volunteered the statement. See Evans v. State, 542 S.W.2d 139 (Tex.Cr.App.1976).

No reversible error has been shown. The judgment is affirmed.


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    Guadalupe MENDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 55819.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 3, 1979.
    Will Gray, Houston, court appointed on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Ned B. Morris, Asst. Dist. At-tys., Houston, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

DOUGLAS, Judge.

Guadalupe Mendez was indicted for murder. The court directed a verdict of acquittal on the murder charge and the jury found him guilty of the lesser included offense of involuntary manslaughter. Punishment was assessed by the court at five years.

Mendez appeals contending essentially that the law of parties does not apply to the offense of involuntary manslaughter. In this respect he challenges both the charge and the sufficiency of the evidence.

The conviction arises out of a senseless and tragic series of events which occurred in suburban Houston on July 80,1974. Mendez, William Robinson and Alfred Fuschak were drinking beer when Robinson suggested they shoot Ray Richmond because he had dated Robinson’s girl friend. Appellant got a shotgun, the other two got rifles. They drove to Richmond’s parents’ house where Richmond lived. Richmond was not home at the time. They shot up a car outside the Richmond house and fired at least eight shots at the house. The trio then drove to the house of Tommy DeAr-man, an acquaintance who was “tight” about lending his car, and shot up his car. As they left DeArman’s house, Robinson shot his rifle randomly at several houses. One of these shots hit Rafael Martinez as he slept in bed next to his wife. Martinez was able to ask his wife to call an ambulance and managed to get to the dining room before he slumped against the wall and died. When the police arrived, they found Martinez and observed a trail of blood from his bed to the dining room.

Appellant’s confession was introduced. He and Fuschak testified that they tried to talk Robinson out of the shooting spree and that appellant did not shoot at the houses. According to their testimony, they continued in the shooting spree after trying to get Robinson to stop.

Appellant contends that he could not, as a matter of law, be responsible for the actions of Robinson. He relies on the reasoning of Gonzales v. State, 532 S.W.2d 343 (Tex.Cr. App.1976). Gonzales held that our law did not provide for the offense of attempted involuntary manslaughter. The rationale of Gonzales was that attempt required a specific intent to commit a crime while involuntary manslaughter by definition, differs from other types of murders in its lack of specific intent. Thus, attempted involuntary manslaughter was a contradiction of terms.

Appellant argues from Gonzales that there can be no accomplice to an involuntary manslaughter. He contends that since the principal who commits an involuntary manslaughter does not act with a specific intent he cannot be assisted by another.

In other jurisdictions which have considered this precise question, there is a clear trend to hold the law of parties applicable to involuntary manslaughter. In Wade v. State, 174 Tenn. 248, 124 S.W.2d 710 (1939), the court had to decide if an individual could aid and abet in an involuntary manslaughter case. The court concluded:

“Involuntary manslaughter necessarily negatives, of course, any intent on the part of the accused to kill another, but does not negative an intent to do the unlawful act, or the act not strictly unlawful in itself, but done in an unlawful manner and without due caution. Hence, one may be an aider and abettor in involuntary manslaughter because of a common purpose to participate in the unlawful act the natural and probable result of which was to kill another.”

Similarly, in Black v. State, 103 Ohio St. 434, 133 N.E. 795 (1921), the court dealt with a situation where several police officers were engaged in target practice in a saloon, an act which was prohibited by statute. An innocent passerby was killed by one of the shots. The Black court sustained an involuntary manslaughter conviction and concluded:

“[I]n such a ease the act of each while engaged in the unlawful act becomes the act of all, not merely as to the unlawful act, but as to all the proximate results that naturally and logically follow therefrom.”

Other cases which have held the law of parties applicable to involuntary manslaughter include: State v. Dilorenzo, 138 Conn. 281, 83 A.2d 479 (1951), and Puckett v. State, 144 Neb. 876, 15 N.W.2d 63 (1944).

While other jurisdictions have dealt with this question, it is one of first impression before this Court. We must first look to our statutes. The gist of our involuntary manslaughter offense is reckless conduct. V.T.C.A., Penal Code, Section 19.05. An individual is criminally responsible for the acts of another if he acts “with intent to promote or assist the commission of the offense” and in so doing “solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” V.T. C.A., Penal Code, Section 7.02(a)(2).

In essence, Gonzales held that one individual cannot act with both a specific intent (to attempt) and without a specific intent (involuntary manslaughter) with respect to the commission of one crime. In the instant ease we are dealing with three individuals. It is entirely possible to intentionally solicit or assist an individual in committing a reckless act. We hold that the law of parties does apply to the substantive offense of involuntary manslaughter.

In the ease at bar the evidence reflects that all three individuals were drinking, armed themselves, shot up two cars and then Robinson shot randomly at houses killing the deceased. Considering this evidence in the light most favorable to the prosecution, we conclude the jury was free to believe that appellant’s actions involved him as a party to the offense.

Mendez also urges, as part of his challenge to the sufficiency of the evidence, that portions of his confession were exculpatory and that the State failed to disprove the exculpatory portions. See Richards v. State, 511 S.W.2d 5 (Tex.Cr.App.1974); Simon v. State, 488 S.W.2d 439 (Tex.Cr.App.1972). There are two statements in the confession where appellant states he tried to talk Robinson out of any further violence. After this second statement, Mendez admits that he helped shoot up the second car. Given this admitted further participation in the shooting spree, appellant’s earlier statements cannot be characterized as exculpatory.

There is no reversible error. The judgment is affirmed.


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    Nieves G. REYES, Appellant, v. The STATE of Texas, Appellee.
    No. 57011.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Jan. 3, 1979.

      Joe E. Chapa, Jr., McAllen, for appellant.
    William B. Mobley, Jr., Dist. Atty. and Richard H. Silvas, Asst. Dist. Atty., Corpus Christi, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction of possession of more than four (4) ounces of marihuana. The jury assessed punishment at five (5) years in the Department of Corrections.

Appellant has raised two grounds of error, but in view of our disposition of the case only one of them will require discussion. The issue raised by the determinative ground of error is whether the evidence was sufficient to support the conviction.

The evidence shows that at approximately 6 a. m. on February 20, 1976, Deputy Sheriff Marcos Perez stopped a vehicle in which appellant was a passenger for speeding. The record reflects that the vehicle, a four-wheel drive Plymouth Trail Duster, was being driven by Jose Montoya. Perez testified that Montoya got out of the Trail Duster and walked back to meet him as he got out of his patrol car. Perez asked Montoya to produce his driver’s license. The record reflects that Montoya got out his wallet but was unable to find his license. The testimony of Deputy Perez reads in pertinent part as follows:

“A He got his wallet out, fumbled around looking for his driver’s license to submit, and without presenting it to me, went ahead and closed his billfold and put it back into his hip pocket. He then turned around and opened the top portion of the rear of the vehicle, the lid that folds up. He unlatched it.
“Q Did the lid open all the way at this time?
“A No, sir, it did not.
“Q What did you say to the individual at that time?
“A He had not presented his driver’s license, so again I asked him to get his driver’s license out to show it to me. He closed the vehicle and locked the handle, got his wallet out again, and presented his driver’s license to me.”

At this point Perez stated that he smelled the odor of “bulk type raw marihuana” emanating from the vehicle. He instructed Montoya to reopen the back of the vehicle, wherein he discovered several large plastic bundles covered by a tarp. The bundles were later determined to contain approximately 660 pounds of marihuana.

The record reflects that it was only after making this discovery that Perez noticed the appellant who had been seated on the passenger side of the vehicle through the entire incident. There was no evidence that the appellant was under the influence of marihuana or any other drug or that he had on his person any controlled substance. Neither the appellant nor Montoya made any statement at the time of the arrest. A registration check revealed that the vehicle was owned by a woman named Soccorro Reyes of McAllen. There was no attempt by the State to connect either Montoya or the appellant with the owner of the vehicle.

It is well settled that an accused may with another or others jointly possess dangerous drugs or narcotics and that such possession need not be exclusive. Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App.1976); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976); Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1975). However, mere presence alone at a place where narcotics or dangerous drugs are being used or possessed by others does not justify a finding of joint possession. Underwood v. State, 571 S.W.2d 7 (Tex.Cr.App.1978); Ayers v. State, 570 S.W.2d 926 (Tex.Cr.App.1978); Harrison v. State, 555 S.W.2d 736 (Tex.Cr.App.1977). The crux of this rule was perhaps best summarized in Wilkes v. State, 572 S.W.2d 538 (Tex.Cr.App.1978):

“It has beeii consistently held in this state that possession means more than just being where the action is; the State must prove two elements: (1) that' the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband . . . Therefore, there must be additional independent facts and circumstances which affirmatively link the accused to the contraband in such a manner that it can be concluded he had knowledge of the contraband as well as control over it. . . ”

In the case at bar, the State bases its claim that the appellant jointly possessed the marihuana on two contentions. First, it is advanced that the statement, “We got caught,” alleged by Perez on cross-examination to have been made by Montoya while on the telephone at the sheriff’s office, is sufficient to affirmatively link the appellant to the contraband. We cannot agree. Not only is the alleged statement extremely vague, it is hearsay of the rankest sort. We have consistently held that such evidence is without probative value in determining the sufficiency of the evidence. Adams v. State, 552 S.W.2d 812 (Tex.Cr.App.1977); Hanna v. State, 546 S.W.2d 318 (Tex.Cr.App.1977); Mendoza v. State, 522 S.W.2d 898 (Tex.Cr.App.1975).

The State next urges the court to consider the close proximity of the appellant to the contraband, claiming that since there was no partition between the passenger compartment and the rear of the vehicle where the substance was found the appellant must necessarily have been aware of its existence. While Deputy Perez may have acquired the skill of detecting the odor of marihuana through his narcotic investigations, it was not shown that the appellant knew the smell of marihuana and such expertise may not be presumed. Armstrong v. State, 542 S.W.2d 119 (Tex.Cr.App.1976). Moreover, the evidence revealed that the plastic bags containing the substance were covered by a tarp and that one of them had to be torn to determine its contents. Therefore, the deputy’s expertise in recognizing the appearance as well as the odor of marihuana cannot be imputed to this appellant.

We conclude that the evidence is insufficient to affirmatively link the appellant to the contraband seized. There is no showing that the Trail Duster was his vehicle, nor was there any attempt to connect him with the owner. Moreover, there is no evidence of furtive gestures toward the contraband, no attempt to escape, no evidence of marihuana smoke, no evidence that the appellant was under the influence of marihuana or other drugs, and no incriminating statements at the time of the arrest.

Having found that reversal must result in the instant case, we further conclude that no further prosecution be had in this cause. The double jeopardy clause of the United States Constitution precludes a second trial once the reviewing court has found the evidence legally insufficient. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Since this ruling is fully applicable to state court proceedings, Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), we are bound to apply this standard to the instant case. Underwood v. State, supra; Ayers v. State, supra.

The conviction is set aside and reformed to show acquittal.

For the reasons stated, the judgment is reversed and the cause remanded.


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    James Ray SMITH, Appellant, v. The STATE of Texas, Appellee.
    Nos. 57041-57043.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 3, 1979.
    Wes Reed, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John Tatum, James D. Burnham, and Reed W. Prospere, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

James Ray Smith appeals from convictions for two aggravated robberies and an attempted capital murder. Punishment was assessed by the jury at life in each case. The court ordered that the sentences run cumulatively.

Smith argues that the trial court was -without authority to cumulate his sentences because all three convictions arose out of the same criminal episode. The sufficiency of the evidence is not challenged.

During the mid-afternoon of October 8, 1976, Thomas Smygelski and Don Stockton were washing their cars at a coin-operated car wash in Dallas. Smygelski was approached by appellant Who shot him in the neck. Smith and two accomplices took Smygelski’s car and attempted unsuccessfully to take Stockton’s. Appellant and his accomplices fled the scene but were stopped shortly thereafter by Kenneth K. Anderson, a uniformed Dallas police officer. As Anderson exited his vehicle, Smith and one of his accomplices fired at him. Smith and both accomplices were eventually apprehended with the aid of a police dog. Appellant was charged with the robbery of Smygelski and Stockton and the attempted capital murder of Anderson. Pursuant to appellant’s motion, all three cases were tried jointly.

Normally, the trial judge has absolute discretion to cumulate sentences. Article 42.08, V.A.C.C.P. In arguing that the trial judge could not cumulate these particular sentences, Smith relies upon V.T.C.A., Penal Code, Section 3.03. Section 3.03 provides that where a defendant is convicted, at a single trial, of more than one offense arising out of the same criminal episode, the sentences must run concurrently. Section 3.02 provides that several offenses may be joined in a single trial if the State files written notice at least thirty days prior to trial and the offenses arose out of the same criminal episode. Section 3.01 limits “criminal episode” to the repeated commission of offenses defined in Title 7 (Offenses Against Property) of the Penal Code.

A contention similar to appellant’s was raised in Caughorn v. State, 549 S.W.2d 196 (Tex.Cr.App.1977). Caughorn argued that the trial court was without authority to cumulate his two sentences. After noting that the State had not filed a motion to consolidate the two offenses under Section 3.02, we concluded,

“Accordingly, even though appellant pleaded guilty tó two indictments charging similar offenses, this did not constitute a single criminal action because the State had not filed the written notice necessary to achieve such results. Since these causes did not constitute one criminal action under Sec. 3.02, supra, the prohibition against the cumulation of sentences provided in Sec. 3.03, supra, does not apply.”

In the case at bar the State did npt file a motion for joinder under Section 3.02. Also, attempted capital murder is defined in Title 5 (Offenses Against the Person) and is not subject to the Chapter 3 joinder provisions. Because the instant prosecution did not arise under Section 3.02, we conclude that the prohibition against cumulation contained in Section 3.03 is not applicable. The cumulation of Smith’s sentences was proper.

There is no reversible error. The judgments are affirmed.