author: ONION, Presiding Judge. ODOM, Judge, DOUGLAS, Judge ONION, Presiding Judge.

text:
    Ex parte David DICKEY.
    No. 51405.
    Court of Criminal Appeals of Texas.
    May 4, 1976.
    Opinion Following Remand Nov. 10, 1976.

      W. John Allison, Jr., Dallas, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is a habeas corpus proceeding seeking to appeal his conviction for burglary of a building, a second degree felony, wherein the punishment was assessed at six (6) years.

Upon the filing of the pro se habeas corpus application, the convicting court did not conduct an evidentiary hearing, but made findings of fact and conclusions of law and denied relief.

The trial court found that on February 17, 1975, the petitioner appeared in open court with counsel and prior to trial signed a sworn instrument which waived the right to trial by jury, the appearance, confrontation and cross-examination of witnesses, and included stipulations, etc., and said instrument concluded with a statement that petitioner knew of and waived his right to file a motion for new trial or in arrest of judgment, as well as his right to appeal his conviction to the Texas Court of Criminal Appeals.

The court found the instrument was signed by petitioner and his counsel and filed prior to trial and that petitioner waived his notice of appeal prior to trial. The court further found that during trial petitioner confirmed all of the waivers he had made in writing.

The court further found that on February 26, 1975, and within ten days after sentence, the petitioner gave written notice of appeal, which was within the time, limits prescribed by Article 44.08(c), Vernon’s Ann.C.C.P. The court denied such notice of appeal, finding that petitioner had earlier made a knowing and intelligent waiver of his right of appeal.

After the record reached this court, a supplemental transcript was forwarded to this court reflecting that immediately after the court pronounced sentence in the case the court asked:

“Now, you want to waive your right of appeal, is that right, is that my understanding?”

The defendant replied, “Yes, sir.”

The record before this court is meager. The only instruments brought forward in support of the trial court’s findings and conclusions are the judgment and sentence and the above-quoted excerpt from the court reporter’s notes.

There is dictum in Reed v. State, 516 S.W.2d 680 (Tex.Cr.App.1974), that “a knowing and intelligent waiver of the right to appeal would only prevent him from appealing without consent of the trial court.” With this we agree.

The question thus presented is whether the petitioner knowingly and intelligently waived his right of appeal. The trial court’s findings and conclusions are to this effect, but it is well established that findings and conclusions of the trial court in Article 11.07, Vernon’s Ann.C.C.P., proceedings are not binding on this court. Ex parte Bratchett, 513 S.W.2d 851 (Tex.Cr.App.1974); Ex parte Bazemore, 430 S.W.2d 205 (Tex.Cr.App.1968); Ex parte Williams, 486 S.W.2d 566 (Tex.Cr.App.1972); Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).

There was no evidentiary hearing, and precious little in the instruments brought forward helps to support the findings made that the waiver of appeal was knowing and intelligent. There is nothing to show the age, education, background of the petitioner or his prior experience with courts, if any, or whether the right of appeal was explained to him by counsel or anyone else. The instrument filed prior to trial mentioned by the court’s findings is not in the record before us, but even if it was, the procedure of requiring a defendant to waive the right of appeal prior to trial should be condemned. At this point the right has not yet matured, the defendant has no way of knowing with certainty the punishment that will be assessed and cannot anticipate the errors that may occur during the trial. Surely a waiver of appeal under such circumstances cannot be knowingly and intelligently made. Under such procedure the waiver of the right of appeal, as well as waiver of motion for new trial, etc., becomes an integral part of the plea bargaining procedure, and the defendant is put in the position of fearing that if he does not waive such rights it may affect the punishment assessed or result in a denial of his motion for probation, if any.

The trial court mentioned that during trial the petitioner confirmed the waivers he made, but the transcription of the court reporter’s notes is not in the record before us, but here again a waiver of appeal during trial would be a premature waiver.

It is true, as set out above, that the trial court briefly inquired after sentencing whether the petitioner waived notice of appeal and received an affirmative answer. This, without more, makes it difficult to hold that the waiver was knowingly and intelligently made. The petitioner may well have thought after the earlier written waivers he had no choice in the matter.

This cause is remanded to the trial court for an evidentiary hearing in which it can be determined if the waiver of appeal was knowingly and intelligently made. The trial court shall, after such hearing, file findings of fact and conclusions of law and forward the same along with the record to this court. It is far better that this matter be determined now rather than years later when the record of the trial may no longer be in existence and when a new trial might have to be ordered.

ODOM, Judge,

concurring in part and dissenting in part.

The record reflects that petitioner gave written notice of appeal within ten days of sentencing. By refusing to grant relief and to award petitioner an appeal from his conviction upon this fact alone, and by directing the trial judge to conduct a hearing on the issue of the voluntariness of petitioner’s waiver of his right to appeal, the majority holds that such a waiver, if valid, does bar appellate review. The majority also quote with approval from Reed v. State, 516 S.W.2d 680, for the proposition that following such a waiver appeal may be had only with consent of the trial court. With these two holdings I concur. I do, however, take exception to the conclusion that a hearing should be held on the voluntariness of the waiver, for the simple reason that petitioner has yet even to allege that the waiver was involuntary. It is significant that the majority opinion nowhere even states what petitioner’s allegations are, but instead merely states the relief sought. I here state the reasons that in my opinion require a denial of relief, and preclude directing the judge of the convicting court to conduct an evidentiary hearing on the matter.

Criminal procedure in Texas provides several means by which appellate review may be secured. First, appellate review may be secured by giving timely notice of appeal Article 44.08, Y.A.C.C.P. Second, for good cause shown the trial court in the same term of court may permit a late notice of appeal. Article 44.08(e), supra. In that event, however, the finding of good cause must be supported by evidence in the record and is subject to review by this Court. E.g., Martinez v. State, Tex.Cr.App., 511 S.W.2d 934, 935-936. Third, by postconviction habeas corpus action, upon a showing that one has been deprived of his right to appeal, relief in the form of an out-of-time appeal may be secured.

In the instant case, petitioner waived his right to appeal, but subsequently, within the statutory period, filed a notice of appeal. Petitioner contends that he has been denied his right to appeal. He does not allege any factual basis attacking the vol-untariness of his waiver. Absent such allegations of fact, his position appears to be this: The course of events, showing a notice of appeal filed within ten days of sentencing, invoked his right to appeal. It is my understanding that the majority hold that the waiver of right to appeal terminates the ten day period at that time; the unilateral action of a convicted defendant filing notice of appeal is not effective as a withdrawal of the waiver; and the waiver may be withdrawn only with the consent of the trial court. Because appellant did not secure the consent of the trial court to withdraw his waiver of the right to appeal, his contention is without merit. He was not denied his right to appeal; he waived his right to appeal.

Permission to withdraw a waiver of the right to appeal is a matter of grace and no grounds therefor need be alleged or shown, as distinguished from permission to file a late notice of appeal, which must be supported by a showing of good cause. Furthermore, withdrawal of the waiver, without more, would only permit perfection of the right to appeal if notice of appeal is then given within the statutory time, unless in addition a showing is made that would authorize a late notice of appeal or an out-of-time appeal. Withdrawal of the waiver alone will permit an appeal, then, only if secured within ten days of the event (see Article 44.08, supra) from which the ten day period is measured.

The proposition that filing notice of appeal within the ten day period automatically withdraws the waiver is rejected by the majority in favor of the rule that the waiver may be withdrawn only with permission of the court. In contrast to withdrawal of the waiver is action seeking to set aside the waiver for cause. The setting aside of such a waiver is relief that may be sought upon allegation of sufficient cause, such as involuntariness of the waiver, and that may be pursued by motion in the trial court filed in the original cause during term time, either before or after expiration of the ten day period, or by an original cause, such as application for habeas corpus seeking an out-of-time appeal, even after expiration of the term. Unlike action denying a request to withdraw the waiver, action refusing to set aside the waiver may be presented to this Court for examination, either by application for writ of habeas corpus under Article 11,07, Y.A.C.C.P., or, in an appropriate case, by original mandamus action.

Petitioner’s application alleges no facts attacking the voluntariness of his waiver. He does not seek to have the waiver set aside; he only seeks to have it withdrawn. This Court is without power to afford him relief upon his claim. If petitioner does have a potentially meritorious claim upon which the waiver might be set aside, his recourse is to file an application for writ of habeas corpus in the convicting court alleging such facts and requesting that the waiver be set aside and he be given an out-of-time appeal. The application before us, however, contains no such allegations, and the record before us at most raises a suspicion that the waiver may not have been voluntary. This Court’s action upon such an application and record directing the judge of the convicting court to conduct a hearing upon the issue of whether the waiver was voluntary constitutes a radical departure from this Court’s established practice of strictly enforcing the requirement that an application for writ of habeas corpus must contain sworn allegations of fact which, if true, would entitle petitioner to relief. Absent a persuasive presentation of reasons, either peculiar to this case or based on some broader principle, I do not favor such a departure from the requirement that the application allege such facts.

I therefore dissent to the issuance of the order of the Court.

DOUGLAS, Judge

(dissenting).

After petitioner entered a plea of guilty to the indictment charging him with burglary, evidence was introduced and he was found guilty. He waived the ten-day period for filing a motion for new trial.

On February 17,1975, after sentence was pronounced, he waived his right to appeal. On February 26, petitioner filed a written notice of appeal. On March 28, petitioner filed what he terms a “Writ of Habeas Corpus For Notice of Appeal.”

The Honorable Don Metcalfe, the hearing judge, found that petitioner made a voluntary and intelligent waiver of his right to appeal after he was sentenced. In Reed v. State, 516 S.W.2d 680, 682 (Tex.Cr.App.1974), this Court wrote:

“. . .A knowing and intelligent waiver of the right to appeal would only prevent him from appealing without consent of the trial court. . . .”

In Abron v. State, 531 S.W.2d 643 (Tex.Cr.App.1976), this Court wrote that the waiver of the right to appeal at the time of sentencing “is effective unless and until a timely notice of appeal is filed.” It appears that the better rule is found in the Reed case.

Often a defendant wants to waive time for filing a notice of appeal so that he may start serving the punishment assessed in order to get extra credit for time while serving at the Department of Corrections. In many cases, people who are convicted and who waive time for giving notice of appeal are transported immediately to Huntsville. If they are not satisfied with the accommodations there, they could give notice of appeal after they have been through the diagnostic unit. The appeal process would then start. In most cases, a lawyer would have to be appointed. If the lawyer finds that the appeal is frivolous, as most of them are after a plea of guilty has been entered, he must serve the person convicted with a copy of the brief and afford him a chance to file a brief in his own behalf. Then a copy of the record can be demanded by the appellant for filing his own brief. Other expensive delays and complications could arise.

The rule of this Court regarding the filing of a motion for new trial after a defendant has waived his time for filing should be followed. See Robinson v. State, 505 S.W.2d 298 (Tex.Cr.App.1974), where it is written:

“. . . And ‘good cause’ should be shown for the late filing of such a motion for new trial. . . .”

See also, Bennett v. State, 450 S.W.2d 652 (Tex.Cr.App.1970); Bedell v. State, 443 S.W.2d 850 (Tex.Cr.App.1969), and Adams v. State, 440 S.W.2d 844 (Tex.Cr.App.1969).

Where there has been a waiver of the right to appeal after sentencing, this should not be set aside unless good cause has been shown to the trial judge. The finding of good cause would be subject to review by this Court. Since petitioner waived his right to file a notice of appeal after that right accrued, and since there is no good cause shown or even alleged to allow him to withdraw the waiver, no further hearing on the matter should be required.

The majority holds that another hearing should be held to see if there was a knowing waiver of his right to appeal. This will probably amount to an exercise in futility. The petitioner will probably testify that he did not knowingly waive his right to appeal even though he did so before the court after he had been sentenced. There was also a premature written waiver before the trial. The hearing court conducted the trial, heard the evidence, saw the petitioner and heard him state that he waived his right to appeal. What other evidence is necessary? If this matter comes back to this Court, it may be in the same position as it is now. Will the majority require more if there is nothing to add?

The procedure adopted by the majority will in effect cause the jails to be further crowded by keeping admitted and judicially found felons until there is no possibility that they might say, “I was denied my right to appeal.” Does this new rule apply to all waivers where a petitioner merely alleges he was denied a right?

The matter should be closed with the finding of the court in this case until something is at least alleged entitling petitioner to relief.

OPINION FOLLOWING REMAND

ONION, Presiding Judge.

Following remand on original submission of this habeas corpus proceeding, seeking an out-of-time appeal of petitioner’s conviction for burglary of a building, wherein the punishment was assessed at six (6) years, the cause was remanded to the trial court for an evidentiary hearing to determine if the waiver of appeal was knowingly and intelligently made.

After such evidentiary hearing, the trial court filed its findings of fact and conclusions of law.

The record shows that at the time of trial the petitioner was 24 years old and had gone to the ninth grade in school. A psychiatric evaluation by Dr. Grigson prior to trial revealed that petitioner’s behavior was normal, and he was oriented as to time, place and person though of a lower average intelligence. Dr. Grigson’s report revealed his opinion that petitioner was competent to stand trial and able to assist his attorneys.

After listening to the petitioner testify at the evidentiary hearing, the trial court found that the petitioner had enough intelligence, education and awareness to understand the nature of the rights he was waiving and the consequences of those waivers. The court further found that petitioner had previously been convicted of two felonies and that in the latter conviction he had given notice of appeal and had withdrawn it some five months previously and thus had some awareness of court procedures. The court further found that the petitioner had waived his right of appeal in open court following sentencing.

The court concluded as a matter of law that the waiver of appeal was intelligently and knowingly made. We conclude the evidence is sufficient to support the trial court’s findings.

The relief prayed for is denied.

      . See Reed v. State, 516 S.W.2d 680, in which it was stated in dictum, “a knowing and intelligent waiver of the right to appeal would only prevent him from appealing without consent of the trial court.”

      . “A favor or indulgence as distinguished from a right.” Black’s Law Dictionary, rev. 4th ed., 1968, p. 826; 38 C.J.S. p. 971.


source: Caselaw Access Project

author: DALLY, Commissioner. DOUGLAS, Judge.

license: Public Domain

text:
    Excell WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. 51123.
    Court of Criminal Appeals of Texas.
    July 14, 1976.
    Rehearing Denied Oct. 6, 1976.

      J. E. Abernathy, Stan McWilliams, Robert H. Boeder, McKinney, for appellant.
    Tom O’Connell, Dist. Atty. and William H. Jouette, Asst. Dist. Atty., McKinney, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of murder; the punishment is death. The offense was committed in Collin County on May 11,1974. The applicable statutes are V.T.C.A. Penal Code, Sec. 19.03 and Article 37.071, VA..C.C.P. The prosecution was in Dallas County after a change of venue from Collin County.

The appellant urges a reversal of the judgment, alleging that (1) the Penal Code and Code of Criminal Procedure permit arbitrary Imposition of the death penalty in violation of his rights under the United States Constitution; (2) the indictment is. misleading and insufficient to allege the offense of capital murder; and (3) the trial court failed to apply the standards of With-erspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), In the voir dire of the jury.

Since the sufficiency of the evidence to show the appellant's guilt is not controverted, a full recitation of the facts is unnecessary. This prosecution arises from the murder of three persons at a grocery store in the course of a robbery at the store.

In Jarek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), this Court considered the constitutionality of Article 1256, V.A.P.C. and Article 37.071, V.A.C.C.P. V.T.C.A. Penal Code, Sec. 19.03 has now replaced Article 1256, V.A.P.C., but insofar as concerns the attack made on the present statutes, there is no difference between V.T.C.A. Penal Code, Sec. 19.03 and Article 1256, V.A. P.C. This Court in Jurek v. State, supra, declared Article 37.071, VA..G.C.P., and Article 1256, V.A.P.C. [now V.T.C.A. Penal Code, Sec. 19.03] to be constitutional. The Supreme Court of the United States has affirmed. Jurek v. Texas, - U.S. -, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). This ground of error is overruled.

The indictment, in pertinent part, alleges:

“ . . . did then and there intentionally and knowingly cause the death of Preston Broyles, by shooting him with a gun, and the said Excell White and James Livingston and Gary Dale Livingston, acting together, did then and there intentionally cause the death of the said Preston Broyles, and in the course of committing robbery, to-wit: Excell White and James Livingston and Gary Dale Livingston, acting together did then and there while in the course of committing theft and with intent to obtain property of Preston Broyles, to-wit: a wallet, without the effective consent of the said Preston Broyles and with intent to deprive the said Preston Broyles of said property, did then and there intentionally and knowingly cause bodily injury to the said Preston Broyles by shooting him with a gun.”

Although not grammatically correct, we hold that the indictment is sufficient. If the comma and the word “and” between the words “cause the death of the said Preston Broyles” and “in the course of committing robbery” were omitted, that portion of the indictment would read: “cause the death of the said Preston Broyles in the course of committing robbery.” The latter phrase would be more correct, but we do not find that the appellant was misled or that he did not have fair notice of the offense with which he was charged. This ground of error is overruled.

The appellant contends that the triai court failed to properly apply the standards of Witherspoon v. Illinois, supra, in the voir dire examination of prospective jurors; he specifically asserts that prospective jurors Davis and Barbour were excused in violation of the standards of Witherspoon.

The rule of Witherspoon v. Illinois, supra, Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), and Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), which militates against the exclusion without further inquiry of prospective jurors for stating general objections to the death penalty, is applicable to the new procedure set forth in Article 37.071, V.A.C.C.P., for determination of punishment in a death penalty case. See Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1975). See also V.T.C.A. Penal Code, Secs. 12.31(b) and 19.03.

Witherspoon specifically held that:

“ . . .a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.” 88 S.Ct. 1770, at 1776-1777.

It was further noted that:

“Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial may reveal, it simply cannot be assumed that that is his position.” 88 S.Ct. 1770, footnote # 9 at 1773-1774.

Boulden v. Holman, supra, further explained the holding in Witherspoon as follows:

“ . . . it is entirely possible that a person who has a ‘fixed opinion against’ or who does not ‘believe in’ capital punishment might nevertheless be perfectly able as a juror to abide by existing law— to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.” 89 S.Ct. 1138 at 1141-1142.

On the other hand, it was made abundantly clear in Witherspoon that the decision reached therein had no bearing on the right of the prosecution to challenge for cause any prospective juror who stated that he would automatically vote against the imposition of capital punishment without regard to the evidence which might be developed at the trial or that his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant’s guilt.

Appellant first directs our attention to the examination of venireman Theodore R. Davis. The relevant portion of that voir dire examination appears in the record as follows:

“THE COURT: ....
“Then I advised the jury panel further that in all capital cases where a jury has reached a verdict in a capital case — we are not talking about this one now; we are just talking about a capital murder case — where a jury has reached a verdict, then the Statutes provide that the punishment to be assessed shall either be life in the penitentiary, or death in the electric chair.
“I asked each member of the jury, from the time I instructed them, until the time they were called forward into Court, to consider whether or not in a proper case they could assess the punishment at death in the electric chair.
“Now I am asking you, in a proper case, where a jury had returned a verdict of guilty, could you and would you assess death in the electric chair, if you thought that to be the proper punishment?
“MR. DAVIS: No, Sir, I don’t think so.
“THE COURT: All right, Sir. I will excuse you. Thank you very much. Give the bailiff your badge."

While the examination of venireman Davis was not as searching as it might have been, it is sufficient to indicate that Davis could not return a verdict of death, or, conversely, that he would automatically vote against the imposition of the death penalty. Counsel for the appellant did not request further voir dire examination of either of the cited veniremen; no objection was raised at the time each was excused.

The other voir dire examination cited by appellant is that of Harriet Barbour. The pertinent portion of that examination appears in the record as follows:

“THE COURT: ....
“I asked each member of that jury panel to search their mind and conscience to determine whether or not in a proper case, if they were a member of a capital murder jury that had previously found the defendant guilty as charged in the indictment, if he or she could and would assess death in the electric chair if they thought it to be the proper punishment.
“In a proper case, could you consider and assess death in the electric chair if you felt that to be the proper punishment?
“MRS. BARBOUR: I am not sure. I think I believe in it, but I am not sure that I could carry it out.
“THE COURT: Well, of course, you are not called upon to carry it out, you understand.
“I realfee the difficulty of your position. There are very very few people ever called, first, to even serve on a jury, and a smaller number of those people are called to serve on a criminal jury, and a very minute number of those people are ever called upon to serve in a capital murder case. So you have never been asked that question before.
“But since this is a capital murder case I must ask you, and I must insist you give us an answer. Now we are not referring to this case, because neither the Court nor the attorneys can preeommit you as to what you would do in this case — you haven’t even heard the testimony. But in a capital murder case, more specifically a criminal homicide that was committed during the course of another felony, if you were selected as a member of the jury, you had heard all of the evidence, based upon that evidence you and your fellow members of the jury had found the defendant guilty as charged in the indictment, then in the second phase of the trial, whether you heard other evidence or not, and once again you retired to consider what you feel the proper punishment is to assess, based upon the facts in the case. Now one of the punishments that you are going to have to face is, if you consider it proper punishment, could you and would you assess death in the electric chair?
“MRS. BARBOUR: I think so.
* * * * * *
“[BY COUNSEL FOR THE STATE]
“Q. . . .
“The question that is before us today— and by ‘us’ again I mean counsel for the State, and defense, and yourself — is whether your frame of mind is such with reference to assessment of death in the electric chair as a punishment that you could,not consider and assess death in the electric chair, even though you might feel it justified and warranted by the facts in the case. That is the question I need to ask you. We need may be to discuss that a little bit — I don’t know.
“As the Court advised you, we are not entitled, nor am I attempting to commit you as to what you will do in any given situation, because you don’t know, and no one else would, either, not having heard any evidence. But if you personal situation is such that under no circumstances you, yourself, could consider and assess death in the electric chair, then that is a matter we need to know at this time.
“A. I just really don’t know.
sfc * * ⅜ $c *
“Q. . . .
“It is a difficult question, I can appreciate that. But in any criminal trial, and more particularly in a capital murder case, there is a heavy responsibility that each member of the jury bears, there is a heavy responsibility, for that matter, that counsel for the defense, as well as counsel for the State bears. Only you can tell us, because only you know, if your situation is such and your personal conscience is such that you could not be a part, an active part — I am not speaking of a passive part; I am speaking of an extremely active part — in a criminal trial in a capital murder case where the punishment of death is authorized by the law, as to whether or not you can take an active part in the consideration and the assessment of death in the electric chair, where the facts are shown to be proper and the punishment shown to be warranted. If you can’t do that, that is fine. But we need to know that. That is certainly nothing to be upset about.
“A. I don’t think so.
“THE COURT: All right, Mrs. Barbour, we will excuse you. Thank you very much for your patience these past two days.”

In the light of the “cold” record before us, it would be difficult to say whether venireman Barbour unequivocally stated that she would automatically vote against imposition of the death penalty; however, when she was faced with the question of whether she could take an active part as a juror in the consideration and assessment of the death penalty in a given case, she responded that she did not “think so.” Her answer was tantamount to a declaration that her personal qualms about the imposition of the death penalty would prevent her from being an impartial juror in a case in which the range of punishment included the death penalty.

In this troublesome area of the “equivocating venireman,” we adhere to the following statement from Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972):

“We cannot believe that Witherspoon v. Illinois, supra, requires certain formal answers and none other. We surely feel that the test of Witherspoon is ‘not to be applied with the hypertechnical and ar-chiac approach of a 19th century pleading book, but with realism and rationality.’
“We are aware of a large number of death penalty cases which have recently been reversed in memorandum opinions by the United States Supreme Court. [Footnote 3 citing cases omitted] While it is difficult, if not impossible to synthesize a rule from those opinions, we have concluded that the voir dire in the instant case and the answers of the veniremen are more unequivocal than those which were set forth in the eases which have been reversed . . . ” 484 S.W.2d 374 at 383-384.

See also the discussion of the examination of venireman Sutton in Carry v. State, 468 S.W.2d 455 (Tex.Cr.App.1971), reversed as to death penalty in light of Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972), in Curry v. Texas, 408 U.S. 939, 92 S.Ct. 2872, 33 L.Ed.2d 761 (1972). After a careful search and consideration of the record we find that neither of the cited veniremen, Davis nor Barbour, was excused in violation of the standards of Witherspoon. This ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, J., concurs.

OPINION ON APPELLANT’S MOTION FOR LEAVE TO FILE MOTION FOR REHEARING

DOUGLAS, Judge.

The Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), question is urged again. We have reviewed the record and find no objection to the discharge of the prospective jurors.

In Boulware v. State, 542 S.W.2d 677, we held that before one can complain of improper discharge of a prospective juror, an objection has to be made in the trial court.

In view of that holding, the prior dissenting opinion has been withdrawn and leave to file the motion for rehearing is denied.

      . After trial and entry of judgment, the cause was transferred back to Collin County, without objection, for the purpose of appeal, it being noted that the trial judge, court reporters, at-tomeys for both parties, witnesses were all residents of Collin County and the grounds upon which the original change of venue had been granted and been terminated.

      . 88 S.Ct. 1770 at 1772; also see footnote # 21 to the majority opinion, 88 S.Ct. 1770 at 1777.

      . The rule in Witherspoon, supra, Boulden v. Holden, supra, and Maxwell v. Bishop, supra, had been applied in this State well before the instant case was tried, and should be known by all lawyers. See Estelle v. Williams, 425 U.S. 501, 86 S.Ct. 1691, 48 L.Ed.2d 126 (1976).


author: DOUGLAS, Judge. ONION, Presiding Judge

text:
    Homer Gene HERNDON, Appellant, v. The STATE of Texas, Appellee.
    No. 51593.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.

      Jerry W. Biesel, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Edgar A. Mason and Jim Burnham, Asst. Dist. Attys., Dallas, Jim D. Yollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of bookmaking under Article 652a, former penal code. The court assessed punishment at three years, probated, and a fine of $1,000.00.

Appellant’s sole ground of error challenges the sufficiency of the evidence. In considering all of the evidence in a light most favorable to the verdict as this Court should do, the evidence is sufficient to uphold the verdict.

The indictment alleged that Herndon did “unlawfully take and offer to take and accept and place for a person known only to the Grand Jurors as ‘Z’, bets and wagers of money on a football game, to wit: ‘ “Z” Miami + 2⅜ 220.’ ”

Officers of the Greater Dallas Organized Crime Task Force, armed with a search warrant, went to the apartment which was surrounded by a chained and padlocked patio. After the officers crawled through an opening of about 2⅞ feet and knocked on the door, Herndon admitted them. There were two telephones on the dining room table. Deborah Cross, who was' in the apartment, had forty-four hundred dollars in her purse. This was the amount calculated from the exhibits as having been collected by appellant on the day in question. Fred Glenn, who was qualified as an expert on bookmaking operations, identified gambling paraphernalia which was found in the apartment. State’s Exhibits Nos. 3 and 4 were identified as line sheet documents on basketball games. State’s Exhibit No. 5 was identified as “ . . .a note pad listing the names of teams, the odds on the teams and the amount bet, with the individual names depicting which individual bet how much on each game”; the pad consisted of nine pages. State’s Exhibit No. 6 was another note pad containing initials, a team with.the odds and the amount bet on the team.

Detective Don Hamon of the Irving Police Department testified that he found a “settle up” sheet, identified as State’s Exhibit No. 7, in the back bedroom. Detective Hamon testified that the “settle up” sheet disclosed the names of various bettors, their winnings and losses and the amount collected or paid by the bookmaker.

Detective D. H. Pfeifer of the Grand Prairie Police Department testified that State’s Exhibit No. 8 was a “settle up” sheet and that he found it in Herndon’s pocket. Pfeifer further testified that during the search the telephones in the apartment rang often and at 6:50 p. m. an individual identifying himself as “Sammy” called and when he (Pfeifer) answered, asked, “Gene?” to which he (Pfeifer) stated, “Yeah.” The caller then said, “This is Sam; what’s the line?” When Pfeifer gave him the line, Sammy then said, “I’ll take two dollars and Miami plus two and a half,” to which he replied, “You’re on,” and then inquired of his caller if two dollars meant two hundred dollars, to which the caller replied, “Sure,” and hung up. Shortly after 6:50 p. m., a second caller who identified himself as “Jack W.” called to place a bet on two basketball games.

Detective Roy Vaughn of the Dallas City Police Department, qualified as an expert on bookmaking operations, testified that State’s Exhibits Nos. 3 and 4, previously identified as “line sheets” on basketball games, were basketball schedules transferred into line sheets for professional bookmaking. State’s Exhibit No. 5, a spiral notebook, previously identified by Officer Glenn as having been found in the apartment, was discussed in detail by Detective Vaughn during his testimony. He testified that the “particular entries on this (page 1 of the exhibit) are actually going to be bet slips or what are commonly referred to as ‘tickets’. It would be where a bookmaker would place the particular bet that an individual made, more for record keeping purposes, the amount of money wagered in the particular bet that he made, at what point he made it at.” He testified that a “juice” meant the fee a person would pay a bookmaker on a losing wager, normally ten percent, so that the “juice” on a $200.00 bet would be $20.00. In testifying as to the purpose and content of a notebook sheet stapled to the back of page three of Exhibit No. 5 he stated: “In my opinion that’s probably going to be some football bets, probably on the Super Bowl” — between Miami and Washington on January 14, 1973. The entry on that sheet, “ ‘Z’ Miami + 2½ 220”, was described as follows: “In my opinion that would be a bettor identified or coded by the name of ‘Z’ had placed a bet on Miami plus two and a half for two hundred and twenty dollars.” In response to a question from the court, Detective Vaughn replied that State’s Exhibit No. 5 had no date on it. An entry in State’s Exhibit No. 6, “C M Washington — 2 110,” was identified as a wager of some sort.

Fred Green, an accountant for the Dallas Police Department, testified that he had received training in the United States Army Signal Corps in cryptography, the science of coding and decoding messages, and that he was a certified cryptographer. He related that he had analyzed several items contained in State’s Exhibit No. 5 the appropriate page of which is set out on next page:

He stated that beginning midway in the left column of the page the entry “Jim (BE) showed that the bettor listed as “Jim (BE)" had placed bets . . on the various teams beginning with Georgetown down through and including a bet on California and also a three-team parlay down here at the bottom on California, Georgia Tech and Washington.” The entries to the right side of the column of teams represent the amounts of money bet on the particular games, such as, Georgetown 75, Fla 75, St. Bonny 110, etc. The notations, six in number, on the left side of the column represent the losses that the bettor sustained on those particular bets, for example: 82.50 Georgetown, 110 St. Bonny, 137.-50 Iowa, etc. In response to the question, “Would you tell the court why you conclude that the bettor sustained those losses as opposed to the bookmaker?”, he replied:

“Well, its very simple: It’s common procedure in the bookmaking business to add a ten percent amount which is commonly referred to as juice. This would, of course, be substantiated by the fact that the seventy-five dollars plus seven dollars and fifty cents or a total of eighty-two dollars and fifty cents.”

Green then described the X’s as representing the amount of money that the bookie won and the W’s as representing the amount of money that the bettor won. He further stated that the bookie usually indicated the bettor’s winning transactions by a plus. The two columns of figures at the bottom were described as a summary of the wins and losses of the bookmaker as opposed to the bettor. In this instance the difference in the two columns was $32.50, the amount of money lost by Jim and this figure is verified by the fact that it is consistent with the rest of the computation, the regular bets plus the “juice” and that the figure had been carried forward to the third page over of notes in State’s Exhibit No. 5. The page was identified as the page entitled “Monday Joe F -135” and is set out on next page:

The entry about which he was testifying appears as “Jim -32.50”. Green then testified that by using the figures which appeared on two preceding pages and the figures on this page he was able to calculate how much the bookmaker had won or lost on Monday and in his opinion the bookmaker had a total winning of $1825.00 for Monday’s bets.

Based on an examination of each subsequent page of State’s Exhibit No. 5, Green concluded that the bookmaker had a practice of settling up “on a more or less day-today basis.” The examination of the subsequent pages revealed that on the day of appellant’s arrest the bookmaker, using State’s Exhibit No. 5, had collected $4428.00, “that this would include a hundred forty-five dollars losses and some forty-six hundred dollars winnings.”

State’s Exhibit No. 8 identified earlier by Detective Pfeifer as a “settle up” sheet, was found in appellant’s front trousers’ pocket at the time of his arrest. State’s Exhibit No. 8 is set out below:

Green testified that the $4428.00 which he had calculated from State’s Exhibit No. 5 as the bookmaker’s winnings was consistent with the total winnings computed from State’s Exhibit No. 8. He stated that the figures which were “checked off” indicated that the bettors had been contacted and a settlement had been made. He further testified that $4400.00 had been found in the purse of Deborah Lucille Cross when she and Herndon were arrested.

Green also testified that from his examination of the first page of State’s Exhibit No. 5 a bettor identified as “ELT” had made four bets. He stated that “ELT” appeared as a bettor throughout the sheets contained in State’s Exhibit No. 5 and that this would indicate to him that someone was wagering whose code name or initials were “ELT” or perhaps “ELT” was short for or part of a name with “ELT” in it. We have examined State’s Exhibit No. 5 in detail and find that “ELT” appears on five other pages in the exhibit.

Elton Schackman who admitted that he was a hostile witness testified that he had known appellant for ten years and had been placing wagers with appellant on games he watched on television for a couple of years. He stated that his bets were usually in the amount of one hundred dollars but never more than two hundred dollars. After being hesitant and evasive in response to questions concerning the Super Bowl football game between the Miami Dolphins and Washington Redskins on January 14, 1973, Schackman refreshed his memory from a statement he had written two and one-half years prior to trial and testified that he had placed a two hundred dollar bet with appellant. He further testified that he had also placed a bet on the Cotton Bowl football game between Texas and Alabama on January 1, 1973, as well as bets on the Kansas City Chiefs. He further testified that when he won bets he had placed appellant paid him and when he lost he paid appellant. Schackman testified that he placed bets on basketball games as well as football games. In reference to his betting he stated that he would usually make wagers on three or four games a week totalling five hundred to seven hundred dollars a week.

Harry Crutcher, Jr., the foreman of the grand jury which returned the indictment in question, testified that an investigation had been conducted by a special investigator assigned to the grand jury by the Dallas Police Department and efforts to determine the identity of an individual known as “Z” had been unsuccessful and the grand jury determined that further investigation would be futile. He revealed the grand jury then returned the indictment alleging that “Z” was a person unknown to the grand jury.

Viewing the evidence in a light most favorable to the verdict, it shows that appellant and Deborah Cross were found in the apartment behind a padlocked patio. He admitted the officers. They were in possession of gambling paraphernalia. The evidence further shows that State’s Exhibit No. 8, a “settle up” sheet, was found on appellant’s person and $4400.00 cash was found in Cross’ purse. During the execution of the search warrant, two bettors who identified themselves as “Sammy” and “Jack W.” called up and placed bets with Detective Pfeifer who posed as “Gene” [appellant’s name] in response to the calls. The names “Sammy” and “Jack W.” appear numerous times in State’s Exhibits Nos. 5, 7 and 8. This much of the evidence is undisputed.

The thrust of appellant’s argument is that the evidence is insufficient to connect him with the apartment and the gambling paraphernalia found therein. He contends that there is no evidence to show his knowledge of the spiral notebook identified as State’s Exhibit No. 5 containing what appears to be a record of numerous bookmaking transactions. Appellant argues that the State failed in its burden of proof in that there was no evidence presented to show that he had leased the apartment or that he was paying the utility or telephone bills on said apartment nor did the State present any fingerprints, surveillance efforts, personal effects, handwriting comparison analysis or furtive gesture which would tend to show his connection with the apartment or would indicate his knowledge of the bookmaking materials. He does not discuss that State’s Exhibit No. 8, a “settle up sheet”, was found on his person, evidence in itself to show that he had knowledge and was party to some system of bookmaking. See Davis v. State, 156 Tex.Cr.App. 76, 239 S.W.2d 109 (1951); and Smith v. State, 491 S.W.2d 924 (Tex.Cr.App.1973).

There was no showing of who owned, rented, or leased the apartment where appellant was arrested, nor was there a showing to whom the telephones were listed and no showing who paid the utilities. Very few, if any, self-respecting bookmakers would have their place for bookmaking and telephone listed under their names if other names could be used. If the failure to prove who owned or leased premises where bookmaking takes place would be cause for reversal, then the large operators could in almost all cases escape conviction by leasing in someone else’s name.

It is not essential to sustain this conviction to show all of the above if it is shown by other evidence that appellant had knowledge of and exercised control over the gambling paraphernalia found in the apartment. State’s Exhibit No. 8, identified by Detective Pfeifer as a “settle up” sheet, commonly used by bookmakers, was found in appellant’s trousers’ pocket. Thus, appellant had the knowledge of and exercised control over State’s Exhibit No. 8. But what about State’s Exhibit No. 5, the spiral notebook containing a record of numerous bookmaking transactions? Did appellant exercise control over it or did he have knowledge of its existence, purpose and content? Does the evidence as presented connect appellant with State’s Exhibit No. 5? The evidence is undisputed that Elton Schackman placed bets with appellant on numerous occasions for a couple of years. Fred Green, the cryptographer whose testimony was summarized earlier to the effect that the appearance of “ELT” throughout the sheets of State’s Exhibit No. 5 “would indicate to him that someone was wagering whose code name or initials were ‘ELT’ or perhaps ‘ELT’ was short for or part of a name with ‘ELT’ in it.” The code name “ELT” appears in State’s Exhibit No. 5; it appears on six of the nine pages in the spiral notebook so identified. It also appears in two other exhibits admitted into evidence by the State. By totalling the figures relating to “ELT” we find that “ELT” had lost the total sum of $540.00.

The code name “Jack W.”, one of the callers during the search of the apartment, appears six times in State’s Exhibit No. 5. A similar addition check on his losses as was done of “ELT” shows that “Jack W.” lost $973.00. Additionally, the code name “Sammy”, the other caller at the time of appellant’s arrest, appears on the front of State’s Exhibit No. 5 as “Sammy 200 2V2.”

The question now presented is whether or not the above discussed analysis of State’s Exhibit No. 5 establishes or tends to show any connection of that exhibit with appellant. Let’s now examine State’s Exhibit No. 8, the “settle up” sheet found on appellant’s person. The first entry of significance is that which shows $540.00 as the amount owed by and collected from “ELT”. Next, the entry for “Jack W.” shows $937.00 as the amount owed by and collected from “Jack W.” Both of these amounts are identical to the amounts shown as being owed by these two bettors in State’s Exhibit No. 5, the spiral notebook containing a record of bookmaking transactions. There are numerous other instances where the code names which appear on the “settle up” sheet appear in the spiral notebook. So that the reader may make the same comparison for himself to note the similarities, especially in the handwriting, which exist between the entries on the “settle up” sheet and the sixth page of the spiral notebook, State’s Exhibit No. 5, the two are set out on next page:

It does not take a trained eye to recognize that the handwriting in the two instances is identical. Specifically this Court need only look at the code names RO, HST, LUTT, Ted and Jack W to cite just a few of the writing similaritiés. It is reasonable to assume that the fact finder, the trial judge, made the same comparison. Such comparison is authorized by Article 38.27, V.A.C.C.P., which provides:

“It is competent to give evidence of handwriting by comparison, made by experts or by the jury. Proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath.”

See also Salinas v. State, 479 S.W.2d 913 (Tex.Cr.App.1972). The evidence is before this Court and, therefore, this Court can review it as did the trial court in order to determine its sufficiency in light of the entire record.

Most of the entries on the “settle up” sheet, State’s Exhibit No. 8, and the sixth page of the spiral notebook, State’s Exhibit No. 5, are identical. The exceptions are easily explained under the carry forward practiced as testified to by Fred Green. For example, the entry “R. -44” appears on the sixth page of State’s Exhibit No. 5 while the entry appears as “Ro -44 -34 (78) on the “settle up” sheet. On the seventh page of State’s Exhibit No. 5, an entry pertaining to “Ro” is as follows:

Thus, on the “settle up” sheet appears “ -44 -34 (78).” We could continue with similarities. There are sufficient similarities between the “settle up” sheet, State’s Exhibit No. 8, found on appellant’s person and the entries in the spiral notebook, State’s Exhibit No. 5, found on the kitchen table in the apartment. Further, to even the untrained eye, the handwriting is very similar if not identical.

Having established appellant’s knowledge and probable use of State’s Exhibit No. 5, the spiral notebook, containing a record of several bookmaking transactions, found on the kitchen table, we must also address ourselves to the question of whether or not the evidence supports the charge as drawn in the indictment.

The indictment alleged that on or about January 12, 1973, in Dallas County, he “did then and there unlawfully take and offer to take and accept for a person known only to the Grand Jurors as ‘Z’ bets and wagers of money on a football game, to wit: ‘T Miami + 2V2 220.” This bet is found recorded on the fourth page of State’s Exhibit No. 5. The evidence establishes that the Super Bowl game between the Miami Dolphins and Washington Redskins was played on January 14, 1973, as this matter was testified to by both Schackman, a close friend of appellant who admitted he placed a bet on that game, and by the testimony of Detective Vaughn. Appellant’s middle name is “Gene”, that is the name he is known by to his friends. The two bettors who called while officers were executing the search warrant, after having identified themselves as “Sammy” and “Jack W.”, asked for “Gene”. Those conversations have been previously set out in discussing Detective Pfeifer’s testimony. The telephone calls were evidence that tended to connect appellant with the bookmaking activities alleged in the indictment without regard as to the truth of the facts related in the calls. The fact that gambling telephone calls were made to the apartment is admissible to show the nature of the enterprise when the gambling paraphernalia was found. See Wharton’s Crim.Evid., 13th Ed., Vol. 2, Section 274, page 26. In State v. Tolisano, 136 Conn. 210, 70 A.2d 118, we find the correct rule as follows: “If the fact in controversy is whether a communication was made and not its truth or falsity, the writing, words, or other communication is original evidence and not hearsay.” 1 Branch’s Ann.P.C.2d, Section 130, page 142; Burchfield v. State, 475 S.W.2d 275 (Tex.Cr.App.1972); Christ v. State, 480 S.W.2d 394 (Tex.Cr.App.1972). As stated in Wigmore, Volume VI, Section 1770, page 259, “Where the utterance of specific words is itself a part of the details of the issue under the substantive law and pleadings, their utterance may be proved without violation of the hearsay rule because they are not offered to evidence the truth of the matter that may be asserted therein.” The calls were properly admitted.

Appellant further argues that there was no evidence presented which showed that the bet was taken in Dallas County. This argument is without merit. The evidence is sufficient to show that appellant’s bookmaking operation was run from apartment 204, located at 9922 Miller Road in the City of Dallas. The fact that Schackman admitted that he made bets with appellant, that the two called, “Sammy and Jack W.,” placed bets at that location with Detective Pfeifer posing as appellant, and that State’s Exhibit No. 5, the spiral notebook containing a record of bookmaking transactions with which appellant’s connection had been established, was found in the apartment along with other gambling paraphernalia leaves only one logical conclusion — “Z’s” bets as well as several others were made in Dallas.

Appellant also argues that the evidence did not establish that the bet in question was in fact a bet on a football game as charged in the indictment. The evidence shows that Miami and Washington played on January 14, 1973, in the Super Bowl. The sheet of paper on which the bet “ ‘Z’ Miami + 2V2 220” was recorded is stapled to the fourth page of State’s Exhibit No. 5 and appears as follows:

As can readily be observed, the entries on this page relate only to bets on “Wash” and “Miami”. Four of the ten code names appearing on this sheet also appear on the “settle up” sheet, State’s Exhibit No. 8, found on appellant’s person. When this exhibit is viewed in context with all of the other evidence, these bets were placed on the Miami-Washington football game. To reach any other conclusion would require the trial court to disregard its experience, logic and common sense. Detective Vaughn identified the entry as a bet by a bettor with the code name “Z” who had placed a bet on Miami plus two and a half for two hundred and twenty dollars.

This is a circumstantial evidence case, but it is not necessary that every fact point independently and directly to appellant’s guilt. It is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Mills v. State, 508 S.W.2d 823 (Tex.Cr.App.1974). If the evidence in the instant case is viewed in its entirety the reader is left with the inescapable conclusion that appellant was in the business of bookmaldng and operated such business from the apartment located at 9922 Miller Road in Dallas. The unusual and striking code name similarities, the similar or identical handwriting, and the sums of money reflected in State’s Exhibit No. 5 and State’s Exhibit No. 8, the “settle up” sheet found on appellant’s person, show appellant’s knowledge and culpability with respect to State’s Exhibit No. 5, the spiral notebook containing records of several bookmaking transactions. The fact that Deborah Cross had $4400.00 in her purse at the time of appellant’s arrest, only $28.00 short of the amount Fred Green calculated from the “settle up” sheet, State’s Exhibit No. 8, as having been collected by appellant as well as the two bets placed with Detective Pfeifer posing as appellant, are more than just happenstance. A “wager” has been defined as a “contract by which two or more parties agree that a sum of money or other thing shall be paid or delivered to one of them on the happening of an uncertain event.” It is not necessary to show the true (personal) identity of the second or additional parties when it is shown by all of the evidence that it is in harmony with the evidence that the party accepting the wagers is identified and his mode of operation proven. The evidence is sufficient to show that appellant was the person connected with State s Exhibit No. 5 wherein “Z’s bet was recorded and that appellant was the person with whom it was recorded.

The judgment is affirmed.

ONION, Presiding Judge

(dissenting).

In his sole ground of error appellant challenges the sufficiency of the evidence to sustain the conviction. The indictment, omitting the formal parts, alleged that the appellant in Dallas County, Texas “on or about the 12th day of January in the year of our Lord One Thousand Nine Hundred and 78 in the County and State aforesaid, did then and there unlawfully take and offer to take and accept and place for a person known only to the Grand Jurors as !Z,’ bets and wagers of money on a football game to wit: ‘Z’ Miami + 2⅜ 220.”

It is appellant’s contention that the evidence failed to establish venue, failed to establish when the alleged offense occurred and generally failed to sustain the allegations of the indictment.

Detective W. D. Glenn of the Greater Dallas Organised Crime Task Force testified that on January 12,1973, pursuant to a, search warrant he and other officers conducted a search of apartment # 204 in Dallas at 9922 Miller Road. Glenn related the appellant Herndon admitted them after they knocked on the apartment door. Glenn observed that in the apartment there was a living-dining room arrangement and on top of the dining room table were two telephones. A Deborah Cross was found in the kitchen and arrested. In her purse was forty-four hundred dollars. Glenn, who was qualified as an expert on bookmaking operations, also testified he observed State’s Exhibits #3 and #4, which he described as line sheet documents on basketball games. Glenn identified State’s Exhibit #5 as a note pad of nine pages listing names of teams, the odds on the teams and the amount bet, with the individual names depicting which individual bet how much on each game. He, however, never stated that State’s Exhibit # 5 was found in the apartment. He also identified State’s Exhibit # 6 as a note pad containing initials, a team with the odds and the amount bet on the team.

Detective Don Hamon of the Irving Police Department assisted in the search and testified he found a “settle up” sheet in the bedroom described as disclosing the names of various bettors, their winnings and losses and the amount collected or paid by the bookmaker. This sheet was admitted as State’s Exhibit #7.

Detective Pfeifer of the Grand Prairie Police Department also assisted in the search and disclosed he had found a “settle up” sheet in appellant’s front pants’ pocket. Contrary to Glenn’s description of the location of the telephones, Pfeifer testified one was on the kitchen table and another in the bedroom. He related the phones rang often, and, over objection, testified that at 6:50 p. m. an individual identifying himself as “Sammy” called and when Pfeifer answered, asked “Gene?” to which Pfeifer stated, “Yeah.” Pfeifer then testified, “The caller stated, ‘This is Sam; what’s the line?’ I gave the line to the caller. Sammy then said, ‘I’ll take two dollars on Miami plus two and a half.’ I said, ‘You’re on,’ and asked if two dollars meant two hundred dollars and he said, ‘Sure,’ and hung up.”

Pfeifer related that after 6:50 p. m. a “Jack W” called to place a bet on a basketball game.

Ray Vaughn, Dallas City Police Department sergeant, was qualified as an expert on bookmaking operations. He testified that State’s Exhibits #3 and #4 were basketball schedules transformed into line sheets for professional bookmaking. Vaughn testified that State’s Exhibit # 5, a spiral notebook, and the “particular entries on this (page 1 of exhibit) are actually going to be bet slips or what you would commonly refer to as tickets. It would be where a bookmaker would place the particular bet that an individual made more for record keeping purposes, the amount of money wagered in the particular bet that he made, at what point he made it at.” He testified that a “juice” meant the fee a person would pay a bookmaker on a losing wager, normally ten percent, so that the juice on a $200 bet would be $20. His attention was then directed “to a notebook sheet stapled to the back of that page (three of Exhibit #5),” and he stated, “In my opinion that’s probably going to be some football bets, probably on the Super Bowl” between Miami and Washington on January 14, 1973. His attention was then directed to the entry on that sheet, “ ‘Z’ Miami + 2½ 220” and he stated, “In my opinion that would be a bettor identified or coded by the name of ‘Z’ had placed a bet on Miami plus two and half for two hundred and twenty dollars.” Under the court’s questioning he admitted State’s Exhibit #5 had no date on it. He was shown State’s Exhibit #6 and the entry “C M Washington — 2 110,” and he stated it was a wager of some sort. When asked if it was the Washington football game, he answered, “Well, that’s . actually be hard to say whether it was a football game or not.”

Fred Green, an accountant and cryptographer of the Dallas Police Department, testified he had examined the exhibits in evidence and had made computations therefrom. He testified it was his opinion that the first three pages of Exhibit #5 reflected the bookmaker as winning $1,825 for the “Monday” reflected thereon. He testified State’s Exhibit #8 revealed that $4,400 had been netted on various bets and that was the amount found in Deborah Cross’ purse. Green also related that a bettor whose code name or initials were “ELT” appeared throughout the exhibits.

Elton Schackman testified he had known the appellant for 10 years and for a couple of years had placed wagers with the appellant on games he watched on television. He explained he did not know appellant was a bookmaker, but that appellant placed bets for him and he received money from the appellant when he won and he paid appellant when he lost. Schackman, after his memory was refreshed, testified he placed a bet with the appellant on the Miami Dolphins in the 1973 Super Bowl on January 12, 1973.

The foreman of the grand jury, Harry Crutcher, Jr., which returned the indictment in question, stated that an indepth investigation had been conducted by a special investigator assigned to the grand jury by the Dallas Police Department and efforts to determine the identity of an individual known as “Z” had been unsuccessful and the grand jury determined that further investigation would be futile. He revealed the grand jury then returned the indictment alleging that “Z” was a person unknown to the grand jury.

Turning to the question presented on appeal, the sufficiency of the evidence, it is observed that this is a circumstantial evidence case. The question is not whether the evidence is sufficient to show that appellant was connected with bookmaking but whether the State sustained its burden of proof to specifically show that on or about January 12, 1973, in Dallas County the appellant “did then and there unlawfully take and offer to take and accept and place for a person known only to the Grand Jurors as ‘Z’ bets and wagers of money on a football game, to wit: lll Miami + 2¾⅞ 220” as charged in the indictment.

“The legal meaning of the term ‘bet’ is the mutual agreement and tender of a gift of something valuable, which is to belong to one of the contending parties, according to the result of a trial of chance, or skill, or both combined.” Odle v. State, 139 Tex.Cr.R. 288, 139 S.W.2d 595 (1940). “A wager is a contract by which two or more parties agree that a certain sum of money or other thing shall be paid or delivered to one of them on the happening of an uncertain event.” Odle v. State, supra.

The State relies in large measure upon the notation found in State’s Exhibit #5, “ ‘Z’ Miami + 2Vfe 220,” and upon the opinion testimony that this represented a wager on a football game.

While the State offered an officer’s opinion that “Z” was a code name or initial for an individual and the grand jury foreman testified as to efforts to locate “Z,” this was the only proof offered to show “Z” was a living person or that “Z” ever represented a living person capable of making a wager.

The only evidence that the bet or wager was on a football game as alleged in the indictment was Officer Vaughn’s opinion testimony the entries on page 3 of Exhibit 5 were “probably going to be” football bets on the Super Bowl and so identified the notation “ ‘T Miami + 2⅛ 220” as being such a bet. However, when shown the entry “C M Washington ... 2 110” on Exhibit 6 he could not say whether that was a wager on a football game or not.

Next, we look to see if the appellant was connected with Exhibit 5.

Although appellant was arrested in the apartment, there was no showing who owned, rented or leased the apartment, no showing to whom the telephones were listed and no showing who paid the utilities. Much of the exhibits were in handwriting, including the notation in State’s Exhibit # 5, as well as State’s Exhibit #8, found in appellant’s pocket, but no handwriting testimony was offered and there was a void of fingerprint testimony. While Officer Glenn testified he saw some betting slips on the kitchen table, he never testified that State’s Exhibit #5, a spiral notebook of nine pages, was one of the items observed or that it was found in the apartment in question. If it was, he never identified the notation “ ‘Z’ Miami + 2½ 220” as being part of such exhibit when found. The code “Z” was found only in Exhibit # 5 and that exhibit bore no date at all.

The appellant was in the apartment at the time of his arrest, but his relationship to the apartment was not established. Even if Exhibit #5 was found in the apartment, his connection thereto by fingerprints, handwriting or possession was not established. There can be no doubt that other proof raised a strong suspicion or probability that the appellant was involved in the alleged offense, but in a circumstantial evidence case is this sufficient?

In 24 Tex.Jur.2d, Evidence, Sec. 742, p. 422, it is written:

“In criminal cases, a judgment of conviction, to be sustained on appeal, must be supported by evidence that produces a moral certainty of the guilt of the accused to the exclusion of every reasonable doubt. The evidence will be insufficient to sustain the conviction where, although not leaving the accused free from suspicion of guilt, it still fails to show his guilt to a moral certainty, so as to exclude all reasonable doubt.”

In Smith v. State, 165 Tex.Cr.R. 445, 308 S.W.2d 516 (1958), this court wrote:

“As the state’s case depends solely upon circumstantial evidence, the evidence in order to be sufficient to show appellant’s guilt must exclude every other reasonable hypothesis save and except his guilt and must go further than to raise a probability or suspicion.” See also Hollingsworth v. State, 419 S.W.2d 854 (Tex.Cr.App.1967).

And as stated in Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969):

“A conviction on circumstantial evidence cannot be sustained on proof amounting only to a strong suspicion or mere probability. Such proof does not exclude every other reasonable hypothesis except that of the guilt of the accused.”

See also Higgins v. State, 515 S.W.2d 268 (Tex.Cr.App.1974); Walker v. State, 513 S.W.2d 39 (Tex.Cr.App.1974); Randolph v. State, 505 S.W.2d 845 (Tex.Cr.App.1974); Prejean v. State, 480 S.W.2d 652 (Tex.Cr.App.1972).

It is true in circumstantial evidence cases it is not necessary that every fact point independently and directly to the defendant’s guilt, for it is enough if the conclusion of guilt is warranted by the combined and cumulative force of all the incriminating circumstances, Mills v. State, 508 S.W.2d 823 (Tex.Cr.App.1974), but the circumstantial evidence must be sufficient to exclude every other reasonable hypothesis except that of the defendant’s guilt. Nelson v. State, 505 S.W.2d 271 (Tex.Cr.App.1974).

I would find the evidence in the instant case insufficient to sustain the conviction. The judgment should be reversed and the cause remanded.

ROBERTS, J., joins in this opinion.

      . Noted as “Item 1” on the page from State’s Exhibit No. 5 about which Green was testifying.

      . Noted as “Item 2” on the page from State’s Exhibit No. 5 set out above.

      . Noted as “Item 3” on the page from State’s Exhibit No. 5 set out above.

      . Shown in Item 2 on page from State’s Exhibit No. 5 set out above.

      . Ibid.

      . Shown as Item 4 on the page from State’s Exhibit No. 5 set out above.

      . The entry in question is indicated by the “arrow and underline.'

      . It is observed the indictment upon which this trial was had was not returned until January 20. 1975.

      . On page 1 of State’s Exhibit #5 is the handwritten “Mon,” which the witness translated into “Monday.”

      . Article 21.02, Sec. 6, Vernon’s Ann.C.C.P., provides:
      “The time mentioned must be some date anterior to the presentment of the iadictment, and not so remote that the prosecution of the offense is barred by limitation.”
      It is well settled that under this provision and its forerunners the State is not bound by the date on or about which the offense is alleged to have been committed, but a conviction may be had upon proof that the offense was committed any time prior to the return of the indictment that is within the period of limitation. Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383 (1960), and cases there cited; Neal v. State, 374 S.W.2d 668 (Tex.Cr.App.1964); Nees v. State, 402 S.W.2d 186 (Tex.Cr.App.1966). The period of limitation for the offense of bookmaking would be three years under Article 12.04, Vernon’s Ann.C.C.P., in effect at the time of the alleged offense.
      The only evidence bearing on the question of whether the offense, if any, was committed prior to the return of the indictment on January 20, 1975, and within the three year limitation period is the fact that the undated exhibit containing the notation may have been found in the apartment on January 12, 1973. As earlier noted, State’s Exhibit # 5 was not identified as having been found in the apartment on the date in question. There was speculation by some witnesses that the notation had referred to the Super Bowl game which occurred on January 14, 1973, but this was based only on the fact that the arrest took place on January 12, 1973, and Miami was one of the teams in that contest. There was no showing that Miami and Washington had never met in a football game before. So there is also clearly a question of “when” the alleged offense occurred.


author: ONION, Presiding Judge.

text:
    Bennie Edward CLARK, Appellant, v. The STATE of Texas, Appellee.
    Nos. 52007.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1976.
    Richard M. Price, Abilene, for appellant.
    Ed Paynter, Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for burglary of a building in which punishment was assessed at confinement in the Texas Department of Corrections for four (4) years.

In two grounds of error appellant attacks the sufficiency of the evidence to show an entry into a building and to show an intent to commit theft.

The record reflects that on December 7, 1974, at 4:45 a. m., a silent alarm signal was received at the home of Mrs. Hudgens of the Abilene Burglar Alarm Company from the premises of the Corley-Wetsel Truck Company. After waiting thirty seconds to see if a report of an accidental set-off would be called in, Mrs. Hudgens called the police dispatcher and reported the alarm. Officer Garland Wade of the Abilene Police Department was refueling his patrol unit at the city barn located within 700-1,000 feet of the Corley-Wetsel Truck Company when he received the dispatch. The time was approximately 4:45 a. m. It took one minute to arrive at the premises of the truck company following the 30 second dispatch. Arriving from the west on East Highway 80, he drove his unit to the front of the leasing office and main building, looking for broken windows or open doors. While driving along the side of the building on his first circle he heard a whistle, though he could not tell where it came from. After getting out of his car to check a door, he returned to his patrol unit and continued circling the building. On arriving again at the east side of the building, the officer saw another patrol car which had stopped a “chevy” pickup on the premises. This pickup had no lights on and was carrying the appellant in the passenger side. Officer Wade testified that on his first time around the north side of the building this pickup was not in view. He also added: “There’s no way that any vehicle could have come in here because I was at this location twice, and with it headed back this way. All of this took place in a matter of a minute and a half, or maybe two minutes.”

The second patrol unit which stopped the pickup was carrying Officers Jimmy Seals and Eldred Carter of the Abilene Police Department. They also had responded to the dispatch announcement of the burglar alarm at the Corley-Wetsel Truck Company. Officer Seals testified that it took about three minutes to reach the Corley-Wetsel Truck Company lot, traveling south on Judge Ely Boulevard. On turning into the back of the lot, the officers saw a white over brown pickup at the rear of the building traveling on the lot in an easterly direction at approximately five miles per hour with its headlights off. The truck did not have license plates or an inspection sticker on it. The officers pulled in front of this truck, blocking its exit and stopping it. Officer Carter noted that the two men in the pickup seemed nervous. The officers found in the back of the pickup truck a hacksaw and new bolt cutter with price tag still attached, though it had been used as it was chipped.

The third policeman to arrive was Clyde Watson. In the course of further investigation D. E. Corley, co-owner of the Corley-Wetsel Truck Company, was contacted and arrived at the truck lot. Corley testified that there were two vans which had the wheels removed and were upon wooden blocks located at the back of the main buildings on the rear of the lot. One of these vans contained spare parts while the other held tires, tire tubes and antifreeze. This second van, referred to as the “tire van,” held an inventory of approximately $10,000 value. Corley said that the vans had been padlocked at the close of business on the afternoon of December 6, 1974. However, the officers and Corley found that the padlocks to both vans were missing and the doors to the tire van were open, although the parts van door was still closed. The padlocks were never located.

Corley and Officer Watson gave testimony relating to the discovery of metal particles under the position in which the locks had been on that afternoon. Further testimony was given by Corley and Mrs. Donnie Hudgens that the opening of the door to the van would set off the burglar alarm system.

In examining the tire storage van, Corley found nothing missing. However, he did find inside the van some chewed wooden matches which he said had not been in the van when it was locked on the afternoon of December 6. Officer Watson identified these matches as five in number. Watson also found four chewed wooden matches inside the cab area of the pickup truck in which appellant was seated when stopped. Officer Watson added that while talking to appellant’s companion that night the man was chewing on matches similar to the sam-pies found in the storage van and in the cab of the pickup.

Officer Watson also found a tie tack and backing on the ground ten feet south of the storage trailer. Appellant was wearing a black western hat on the night of the burglary which had two holes in the center and top. In comparing the tie tack and backing to the holes in the hat, Officer Watson found that the tie tack fit the holes.

In presenting its evidence, the defense called the appellant to the stand. He testified that he owned a truck which was in Fort Worth but that the engine and tires had been stolen from it. While drinking beer at a tavern in Fort Worth on the night of December 6th with Derrell Leonard King, the two decided to drive to the Cor-ley-Wetsel Truck Company in Abilene to look for his motor. His testimony was that they had just pulled in with their headlights on when they were passed by the first patrol car and then stopped by the second patrol car. On cross-examination the appellant admitted that he needed “a lot of parts” for his truck. The appellant also admitted convictions for misdemeanor theft and burglary.

Appellant first contends that the evidence failed to show an entry had been made. When the sufficiency of the evidence is challenged, this court is required to view the evidence in the light most favorable to the verdict. Morgan v. State, 508 S.W.2d 770 (Tex.Cr.App.1974); Resendez v. State, 495 S.W.2d 934 (Tex.Cr.App.1973).

V.T.C.A., Penal Code, § 30.02, defining burglary also provides:

“(b) For purposes of this section, ‘enter’ means to intrude:
“(1) any part of the body; or
“(2) any physical object connected with the body.”

Burglarious entry may be shown by circumstantial evidence, Jones v. State, 458 S.W.2d 89 (Tex.Cr.App.1970); Morgan v. State, supra. Here, the evidence shows the vans in question were locked and secured at 6 p. m. on December 6,1974, by the witness Corley. There were no matches therein at the time. In the early morning hours of December 7, the appellant and his companion King were discovered on the premises driving in a truck with its lights off. The padlocks on the vans were missing and there were metal flakes beneath the position they had been in which indicated the locks had been cut. There was evidence that the burglar alarm would go off when the doors to the van or vans were opened. Such an alarm was reported and shortly thereafter appellant and his companion were apprehended. Inside one van were five chewed matches. Similar matches were in the pickup truck in which appellant was riding. His companion King was observed chewing on similar matches while conversing with Officer Watson. The apparently new bolt cutter in the pickup truck had been chipped.

The jury was charged on the law of circumstantial evidence and the law relating to parties to an offense and criminal responsibility. An individual may be guilty of burglary even though he did not personally enter the burglarized premises if he is acting together with another in the commission of the offense. Smith v. State, 496 S.W.2d 564 (Tex.Cr.App.1973).

We conclude the evidence is sufficient to warrant a jury finding that there was a burglarious entry.

The instant case is distinguishable from Tanner v. State, 473 S.W.2d 936 (Tex.Cr.App.1971), relied upon by the appellant because there is more than mere setting off a burglar alarm to infer entry. Reliance upon Stone v. State, 396 S.W.2d 882 (Tex.Cr.App.1965), is also misplaced as there was no evidence of entry in that case other than a showing that a screwdriver in the defendant’s possession fit marks on a door facing which was never shown to have been opened.

Appellant also contends that the evidence is insufficient to show the intent to commit theft. In addition to all of the foregoing evidence, appellant testified he had come to Abilene seeking a stolen engine and that he needed “a lot of parts” for his truck in Fort Worth. Further, it is well settled that the act of breaking and entering a building at nighttime raises the presumption that the act was done with the intent to commit theft. Finch v. State, 506 S.W.2d 749 (Tex.Civ.App.1974); Garcia v. State, 502 S.W.2d 718 (Tex.Cr.App.1973); Callahan v. State, 502 S.W.2d 3 (Tex.Cr.App.1973); Graham v. State, 487 S.W.2d 359 (Tex.Cr.App.1972); Roberts v. State, 375 S.W.2d 303 (Tex.Cr.App.1964).

Appellant’s contention is overruled.

The judgment is affirmed.

      . V.T.C.A., Penal Code, § 30.01(2) provides:
      “ ‘Building’ means any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.”


text:
    Louis SCOTT, Appellant, v. The STATE of Texas, Appellee.
    Nos. 52130, 52131.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1976.

      Barry P. Helft, Balias, for appellant
    Henry Wade, Dist. Atty., Ronald D. Hinds, David C. Schick, Stewart Robinson, Jr., Asst. Dist. Attys., Dallas, Jim D. Vol-lers, State’s Atty., and David S. MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

These are appeals from orders revoking probation. Appellant was convicted on December 28,1974, of theft of property of the value of $200 or more but less than $10,000, and theft of service of the value of $200 or more but less than $10,000. In both convictions punishment was assessed at two (2) years’ confinement, but the imposition of sentence in each ease was suspended and the appellant was placed on probation, subject to certain conditions, including that the appellant:

“(a) Commit no offense against the laws of this or any other State or the United States.”

On February 27, 1975, the State filed a motion to revoke the probation granted in both cases, alleging that the probationer had committed burglary with intent to commit theft on February 25, 1975, violating this condition. Appellant was found to be indigent and counsel was appointed. As the motions to revoke probation alleged an identical violation in both cases, a consolidated hearing on the revocation motions was held on April 16,1975, following which appellant’s probation was revoked in each case.

When the appeals were first considered by this court, the appeals were dismissed because notices of appeal were not timely given within ten days as required by Article 44.08(c), Vernon’s Ann.C.C.P., and good cause was not reflected so as to permit the giving of a belated notice of appeal. A supplemental transcription has now been filed which reflects good cause for the belated giving of notice of appeal in each case and the appeals are reinstated. Abron v. State, 531 S.W.2d 643 (Tex.Cr.App.1976); Chappell v. State, 519 S.W.2d 452 (Tex.Cr.App.1974).

The basis for the revocation in both eases was for the commission of a burglary on February 25, 1975, in Garland. Appellant was convicted for that offense, but on appeal in Scott v. State (Tex.Cr.App. No. 52,137, Oct. 20, 1976), the conviction wás set aside because of the admission of evidence obtained as a result of an improper search and seizure.

It is observed that at toe hearing on the motions to revoke the trial judge stated that he would take judicial notice of the evidence heard on the burglary trial before him, wherein the appellant was represented by the same counsel as at the revocation hearing. When the trial judge inquired if there was any objection to toe receipt of such evidence, appellant’s counsel stated, ‘‘No, your Honor.” There was no objection to toe receipt of such evidence on the basis that it was obtained as a result of an improper search and seizure. Thus appellant waived any question that the evidence should not he considered at the revocation hearing because of Fourth Amendment violations. Cf. Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976).

In Cause # 52,181 appellant’s appointed counsel on appeal has filed an appellate brief in which be contends toe appeal is frivolous and without merit. While he did not advance any arguable grounds to support toe appeal, he did make a careful evaluation of the record to demonstrate why he was unable to do so. Such is a sufficient compliance with Anders v. California, 386 U.S. 788, 87 S.Ct 1896, 18 L.Ed.2d 493 (1967). See Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974). It appears that a copy of the brief has been delivered to the appellant, who was advised of his right to examine the appellate record and to file a pro se brief.

We have examined toe record and conclude that the appeal is frivolous and without merit. We do observe that appellant raised the search and seizure question in his pro se brief filed in the trial court, but since the evidence was admitted without objection no error is presented.

•In Cause # 52,130 appellant’s counsel urges that the indictment for theft of services upon which appellant was originally convicted is fundamentally defective and that even if this is an appeal from an order revoking probation he has the right to raise the. issue of a fundamentally defective indictment. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).

He complains that the indictment merely described the service allegedly stolen as “auto alterations” and does not adequately describe the service taken.

Omitting the formal parts, the indictment alleged the appellant on or about August 8, 1974, in Dallas County “did then and there unlawfully with intent to avoid payment for auto alterations, service that he knew was provided by Jerry Hutchins, only for compensation, intentionally and knowingly secure performance of said service of the value of $200.00 or more but less than $10,-000.00, by deception, threat and false token and absconded without paying for the service.”

There was no motion to quash the indictment.

While the indictment is certainly no model, it is clear that where no motion to quash is filed only such defects as would render the indictment insufficient to support the conviction could be considered after judgment. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974).

We do not conclude that the indictment was fundamentally defective.

The judgments are affirmed.


text:
    Donnie Joe WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. 53128.
    Court of Criminal Appeals of Texas.
    Nov. 10, 1976.

      Jay W. Burnett, Houston, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This proceeding apparently involves appeals from three convictions for aggravated robbery, wherein the punishment assessed was twenty (20) years.

Appellant’s court-appointed counsel has filed an appellate brief in which he concluded that the appeals are frivolous and wholly without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1973), and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), as interpreted in Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974). A copy of counsel’s brief has been delivered to the appellant, and the appellant has been advised of his right to inspect the appellate record and his right to file a pro se brief. No pro se brief has been filed.

We have carefully examined the record and find the appeal to be without merit as to one conviction, but conclude that we are without jurisdiction of the other two convictions, if any.

The indictment alleged three offenses of aggravated robbery in three separate counts. The first count alleged that the offense occurred on or about July 17, 1975. The second and third counts alleged those offenses occurred on or about July 19,1975. Each count reflected different complaining witnesses.

It appears that the indictment was drafted under the provisions of V.T.C.A., Penal Code, §§ 3.01 and 3.02, and Article 21.24, Vernon’s Ann.C.C.P,, as amended.

Article 21.24, supra, provides in part:

“(a) Two or more offenses may be joined in a single indictment, information, or complaint, with each offense stated in a separate count, if the offenses arise out of the same criminal episode, as defined in Chapter 3 of the Penal Code.”
§ 3.01 provides:
“In this chapter, ‘criminal episode’ means the repeated commission of any one offense defined in Title 7 of this code (Offenses Against Property).”
§ 3.02 provides in part:
“(a) A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.”

The offense of aggravated robbery is provided for in V.T.C.A., Penal Code, § 29.03, which is found in Title 7 of said code.

On October 6,1975, prior to trial, the court inquired if the State desired to elect which count upon which it would proceed and the prosecutor answered, “all three counts.” The appellant then entered a plea of nolo contendere and was duly and carefully admonished by the trial court in accordance with Article 26.13, Vernon’s Ann. C.C.P.' The evidence was in the form of written stipulations, which include written “judicial confessions” to each of the alleged offenses. At the conclusion of the trial the court assessed punishment at twenty (20) years for “aggravated robbery.” Whether the court intended to find the appellant guilty of all three counts or only one count is not clear from the statements found in the transcription of the court reporter’s notes. The single judgment found in the record referring only to a single conviction for aggravated robbery does little to clarify the situation except that it contains a finding that the offense of aggravated robbery mentioned therein occurred on July 17, 1975. This leads to the conclusion that the conviction was based on the first count of the indictment in light of the date of the offense alleged in the first count of the indictment and the date reflected in appellant’s judicial confession to the first count.

We observe further that there is only one sentence in the record which was pronounced eleven days after trial. V.T.C.A., Penal Code, § 3.03 provides:

“When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, sentence for each offense for which he has been found guilty shall be pronounced. Such sentences shall run concurrently.” (Emphasis Supplied.)

The judgment of conviction for aggravated robbery based on the first count of the indictment can be affirmed. If this cause can also be interpreted as attempted appeals from the other convictions, if any, this court is without jurisdiction as neither a judgment nor a separate sentence was entered in connection therewith. Until the record properly reflects formal sentences for the offenses contained in the second and third counts of the indictment charged under the “criminal episode doctrine,” we have no jurisdiction of the appeal of these two counts. See Articles 42.02 and 42.04, Vernon’s Ann.C.C.P.; Baker v. State, 491 S.W.2d 887 (Tex.Cr.App.1973).

If proper sentences were in fact pronounced in the case regarding the second and third counts but there was a failure to enter such sentences, they may be entered nunc pro tunc. Article 42.06, Vernon’s Ann. C.C.P. If, on the other hand, sentences were never properly pronounced, the trial court may now pronounce sentences and an appeal may be taken therefrom if appellant so desires. See DeMary v. State, 423 S.W.2d 331 (Tex.Cr.App.1968); Clemons v. State, 414 S.W.2d 940 (Tex.Cr.App.1967); Savant v. State, 535 S.W.2d 190 (Tex.Cr.App.1976); Matheson v. State, 492 S.W.2d 273 (Tex.Cr.App.1973).

The judgment of the conviction as to the first count of the indictment is affirmed. The attempted appeals, if any, from the second and third counts are dismissed.

      . The State has filed no brief in this cause, so the State’s position is not known.