author: STEAKLEY, Justice. DENTON, Justice,

text:
    CITIZENS BANK OF BRYAN et al., Petitioners, v. FIRST STATE BANK, HEARNE, Texas et al., Respondents.
    No. B-7897.
    Supreme Court of Texas.
    April 18, 1979.
    Rehearing Denied May 16, 1979.

      Larry Temple, Austin, for petitioners.
    Smith & Lamm, T. D. Smith, Houston, Mark White, Atty. Gen., Thomas A. Rutledge, Asst. Atty. Gen., Austin, for respondents.
   STEAKLEY, Justice.

The First State Bank of Hearne was chartered by the State Banking Board in 1957, with its domicile in Hearne, Robertson County, Texas. Under date of May 17, 1976, the Bank applied for an amendment of its Articles of Association to change its domicile from Hearne to College Station, Brazos County, Texas, and to change its name to College Station Bank. College Station is located in the adjoining county of Brazos, a distance of 27 miles. College Station and Bryan, Texas, are located in Brazos County. The four existing banks in Bryan and College Station protested the application. The State Banking Board, by a vote of two of its three members, approved the change in domicile and name by order dated October 18, 1976, whereupon the protesting banks sought judicial relief by appeal. The District Court, by judgment dated October 6, 1977, sustained the appeal and set aside the approval of the Board. Upon further appeal by the First State Bank of Hearne, and the State Banking Board, the Court of Civil Appeals reversed the judgment of the District Court and reinstated the order as valid. 569 S.W.2d 604. The four protesting banks are our Petitioners at whose instance writ of error was granted. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

The Articles of Association of a state bank are required to contain “The city or town and the county of its domicile.” Tex. Rev.Civ.Stat.Ann. art. 342-304. Pursuant to an amendment in 1967, art. 342-314 provided at the time of the order of the State Banking Board here in question:

No state bank shall hereafter change its domicile without first having received approval for such change from the State Banking Board in the manner provided for the approval of an original application for a charter.

Rule number 055.03.08.001 was thereafter adopted by the State Banking Board:

A bank may not change its domicile without prior approval from the State Banking Board in accordance with Article 14, Chapter III of the Texas Banking Code. An application to change domicile shall be in writing and be filed with the Banking Commissioner. The application shall state the exact proposed new location and shall be supported with statements, exhibits, maps and other data, properly verified under oath. The application shall also include a statement regarding the estimated cost of the new facility. Each application for a domicile change shall be filed, set for hearing, have notice given, and be ruled upon in the same manner as provided for new charter applications.

The term “domicile” is not defined in the Code but it may be said that the domicile of a state bank is where it has been authorized to engage in the banking business and to serve a particular banking constituency. Clearly the change sought by the First State Bank of Hearne, i. e., from serving the City of Hearne, in Robertson County, for which it was originally chartered, to serving the City of College Station, in Brazos County, is a change in domicile to which the statute applies. Cf. City National Bank of Austin v. Falkner, 428 S.W.2d 429 (Tex.Civ.App.1968, writ ref’d, no reversible error with Per Curiam opinion), Tex., 432 S.W.2d 689.

The statute requires that the approval for a change in the domicile of a state bank first be received from the State Banking Board in the manner provided for the approval of an original application for charter. Pursuant thereto the Board in its rule, quoted above, outlined the procedure it would require. Neither the statute nor the rule of the Board speaks expressly to the substantive issues to be resolved, and the question thus posed is one of first impression. We find the answer in the statutory scheme of regulation of banks and the reasonable intendments arising therefrom.

It is apparent from a reading of the Board order here that consideration was limited to the question of whether it was shown that public necessity required a new bank in College Station. Indeed, it can be fairly stated that as to the issue of public necessity, the Board determined the change of domicile application of the Hearne bank no differently from an original application to serve College Station, with no consideration given to the public necessity previously found to require the chartering of the First State Bank of Hearne in 1957.

But there is an inherent difference between the two proceedings. An original application invokes consideration by the Board of the public necessity with respect to the place to be served by a new bank. Article 342-305 provides in part:

Art. 342-305. Application for and Granting of Charters — Approval
A. Applications for a State bank charter shall be granted only upon good and sufficient proof that all of the following conditions presently exist:
(1) A public necessity exists for the proposed bank;
(2) The proposed capital structure is adequate;
(3) The volume of business in the community where such proposed bank is to be established is such as to indicate profitable operation of the proposed bank;
(4) The proposed officers and directors have sufficient banking experience, ability and standing to render success of the proposed bank probable; and
(5) The applicants are acting in good faith.
The burden to establish said conditions shall be upon the applicants.

Tex.Rev.Civ.Stat.Ann. art. 342-305 (1973).

A change of domicile application, on the other hand, by which approval is sought to move an existing bank from the place it was chartered to serve to a new and different banking community, invokes consideration by the Board of the public necessity in both locations. It is our view that the Legislature did not intend that the statutory responsibility of the Board would be one and the same in these differing circumstances. The First State Bank of Hearne sought a banking charter with Hearne and Robertson County as its domicile and was granted the requisite charter upon proof of public necessity and a reasonable probability of a profitable operation there. It was under the burden of establishing that the abandonment of this banking service would be consistent with the public necessity previously determined by the Board to require the service.

It is argued in behalf of the Board that while it might be agreed that in domicile change hearings there should be some standard concerning the community where the bank is currently doing business, none has been supplied by the Legislature. In our view, the standard we have recognized is implicit in the statutory scheme of regulation. Cf. Chemical Bank & Trust Company v. Falkner, 369 S.W.2d 427, 432 (Tex.1963). The legislative intent is to be determined from the entire statute and the object of construction is to ascertain and enforce such intent. City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273 at 278 (1951); Magnolia Petroleum Co. v. Walker, 125 Tex. 430, 83 S.W.2d 929, 934, cert. denied 296 U.S. 623, 56 S.Ct. 144, 80 L.Ed. 442 (1935). The question is not whether the Board is “authorized” by statute to make the determination of public interest in the respects discussed above, as argued by the Board; the question is whether it is the duty of the Board to do so in the discharge of its statutory responsibilities in regulating the banking business in Texas. We hold that it was; and the Board not having done so here, its order must fall.

For the future guidance of the Board, we will rule on one other matter as to which we are in disagreement with the holding of the Court of Civil Appeals. Tex.Rev.Civ. Stat.Ann. art. 6252-13a, § 15, the Administrative Procedure Act, provides:

If in a contested case a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, may not be made until a proposal for decision is served on the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs to the officials who are to render the decision.

The State Banking Board is composed of three members. None heard this contested case. Two of the members had read the record; the third had not. A final decision approving the application was made by the affirmative vote of two of the three members, one of whom was the member who had not read the record. Notwithstanding, a proposal for decision was not served on the parties, and an opportunity was not afforded the adversely affected parties to file exceptions and briefs prior to the final decision.

The Court of Civil Appeals has construed the statute as applying only where a majority of the officials empowered to make a final decision had not read the record, and two of the three had done so here. The statute can be so read. However, this construction defeats the statutory purpose that cases before administrative bodies will not be decided by agency officials who had neither heard the case nor read the record of the administrative hearing. Cf. Webster v. Texas & Pacific Motor Transport Co., 140 Tex. 131, 166 S.W.2d 75 (1942). The cardinal rule in statutory interpretation and construction is to seek out the legislative intent from a general view of the enactment as a whole, and, once the intent has been ascertained, to construe the statute so as to give effect to the purpose of the Legislature. Board of Ins. Com’rs v. Great Southern Life Ins. Co., 150 Tex. 258, 239 S.W.2d 803 at 808 (1951). It is recognized that a statute is to be construed with reference to its manifest object, and if the language is susceptible of two constructions, one of which will carry out and the other defeat such manifest object, it should receive the former construction. In re National Guard, 71 Vt. 493, 45 A. 1051 (1899); 2A, Sutherland, Statutory Construction, § 46.05 (1973); cf. City of Corpus Christi v. Southern Community Gas Co., 368 S.W.2d 144 (Tex.Civ.App.1963, writ ref’d n. r. e.).

This is illustrated here where only two of the officials had read the record, one of whom voted approval and the other disapproval, with the deciding vote cast by the third official who had not read the record. The words of the statute, “a majority of the officials of the agency who are to render the final decision,” may be construed as intending that the requirement of the service of a proposal for decision on the parties shall arise when it is determined that the officials, one or more, who vote in favor of the final decision have not read the record. This construction is reasonable and, more importantly, comports with and carries out the statutory concept that at such time and under such circumstances parties adversely affected by such tentatively determined final decision will be afforded an opportunity to challenge its correctness in the light of the administrative record.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

DENTON, J., dissenting.

DENTON, Justice,

dissenting.

I respectfully dissent. It is my opinion that the court of civil appeals has correctly decided this case, and I agree with that court’s opinion. Tex.Civ.App., 569 S.W.2d 604.

      . Citizens Bank of Bryan, First Bank & Trust versity National Bank of College Station. of Bryan, First National Bank of Bryan and Uni-

      . Article 342-314 was again amended, effective March 10, 1977, by the addition of this prohibition:
      “No state bank may change its domicile to a location outside the county where it is located.”
      It is not necessary under our disposition of this appeal to decide the contention of the protesting banks that this intervening amendment mooted the controversy in their favor.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Ex parte Walter Lee BANKS, Jr.
    No. 61236.
    Court of Criminal Appeals of Texas, En Banc.
    May 2, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is a felony post-conviction habeas corpus application brought pursuant to Art. 11.07, V.A.C.C.P.

Petitioner was convicted in May 1978 of possession of heroin and was sentenced in June 1978 to five years. He timely filed a notice of appeal and in December 1978 the appeal was affirmed in a per curiam opinion that recited no statement of facts and no briefs had been filed in the case and that appellant was represented by retained counsel. This habeas corpus application was brought in an effort to secure an out-of-time appeal on the grounds that petitioner’s retained counsel breached a legal duty to his client to diligently pursue the appeal, and that petitioner was thereby denied effective assistance of counsel on appeal.

The convicting court conducted a hearing on petitioner’s application at which the attorney, petitioner, petitioner’s father, and one of the court reporters from petitioner’s trial testified. The testimony from these various witnesses was in harmony and raised no factual disputes. The testimony supports these findings of fact entered by the hearing court, and we adopt them:

“1. Petitioner was represented by retained counsel at trial.
“2. Petitioner paid retained counsel his entire fee for representation of Petitioner during the course of the trial.
“3. Petitioner’s original retained counsel at trial was retained by Petitioner to represent Petitioner on appeal.
“4. Petitioner’s retained counsel on appeal entered notice of appeal for Petitioner.
“5. Retained counsel on appeal obtained an estimate of the transcription of the court reporter’s notes [statement of facts] which was $390.
“6. Retained counsel on appeal set his financial requirements at $1,000 retainer to start on the appeal, an additional $2,500 appellate fee, and $390 for the statement of facts.
“7. Petitioner paid retained counsel on appeal the $1,000 retainer and $250 towards the preparation of the statement of facts.
“8. Through an apparent lack of communication, inadvertant mistake or misunderstanding, the statement of facts were never transcribed and filed, and no brief on appeal was filed.
“9. There is an arguably meritorious issue on appeal.
“10. The Court finds that Petitioner has been deprived of his effective right of appeal and therefore that Petitioner is entitled to an out-of-time appeal.”

In Steel v. State, Tex.Cr.App., 453 S.W.2d 486, it was held:

“. . . retained counsel, even one who has not been fully compensated for part services or compensated for further service, cannot wait until a critical stage of the proceedings is reached and bow out without notice to the court and the accused and ‘frustrate forever accused’s right to protect his vital interests.’ Ati-lus v. United States (5 Cir.) 406 F.2d 694.”

The proper relief when an appellant is denied effective assistance of counsel on appeal is to afford him an out-of-time appeal. The proper remedy in this case is to return petitioner to the point at which he gave notice of appeal. Ex parte Raley, Tex.Cr.App., 528 S.W.2d 257; Ex parte Hill, Tex.Cr.App., 528 S.W.2d 259.

It is so ordered.


author: ODOM, Judge. DOUGLAS, Judge, DALLY, Judge,

text:
    James SANDERS, Appellant, v. The STATE of Texas, Appellee.
    No. 53986.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 29, 1978.
    Rehearing Denied May 9, 1979.

      Charles L. Rittenberry, Amarillo, for appellant.
    Randall Sherrod, Dist. Atty., Richard L. Wilcox, Asst. Dist. Atty., Canyon, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated assault. Punishment was assessed by a jury at two years. The sufficiency of the evidence is not challenged.

In two grounds of error appellant argues that discussion of the parole law during jury deliberations constituted the receipt of other evidence by the jury after it had retired to deliberate, entitling him to a new trial under Article 40.03(7), V.A.C.C.P., and that such discussion constituted jury misconduct depriving him of a fair and impartial trial under Article 40.03(8), V.A.C.C.P. He relies on Heredia v. State, Tex.Cr.App., 528 S.W.2d 847, and Sweed v. State, Tex.Cr.App., 538 S.W.2d 119.

The State in reply contends the discussion of the parole law was not sufficient to deprive appellant of a fair and impartial trial, and, alternatively, that appellant was not harmed in that the effect of the discussion was to reduce the punishment assessed by the jury.

At the hearing on appellant’s motion for new trial eight of the jurors appeared and were sworn as witnesses. Appellant called to the stand the two jurors who had made affidavits in support of his motion for new trial. The State presented no witnesses on the issue, and none of the other jurors were called to testify.

Juror Rigdon testified that during deliberations at the punishment stage of appellant’s trial one of the jurors, known as the Colonel, stated he had served on court mar-tials and was familiar with the parole system. He told the jury that if appellant were given a two year sentence, he would not have to serve more than eight months. Rigdon testified she felt two years was too long a sentence and she was thinking of probation, but the Colonel’s statement on the parole laws caused her to change her position. She further testified that the Colonel “said he had been on a lot of court-martials and he knew a lot about the penitentiary system. . . . That he [appellant] would not have to serve more than eight months if he behaved himself, is the way he put it.” She stated she would not have voted for two years in the penitentiary if she had not been told these statements about the parole system. On cross-examination Rigdon testified her first vote was for eight years probation.

Juror Campbell was the other witness at the hearing on the motion for new trial. She testified that there was a great deal of discussion of the parole law and that a juror called Colonel and several other men on the jury “said that normally if we sentenced him to two years he would serve between six and eight months and be eligible for parole.” Prior to the discussion she voted for probation, and after the discussion she voted for the penitentiary term. On cross-examination she stated she had favored five years probation, and that the factors influencing her in changing her vote were the discussion of the parole law and her fear that another jury might give him greater punishment if he were retried.

The State cites McCartney v. State, Tex.Cr.App., 542 S.W.2d 156, for the propositions (1) that the trial court could resolve conflicts in the testimony of the jurors, and find that only the possibility of parole after eight months was discussed; and (2) that it is common knowledge that inmates are sometimes released on parole, and not every mention of the parole law requires reversal. In the record before us, however, there is no dispute that the parole law was discussed extensively, and that it did affect jury deliberations on the issue of whether to grant or deny probation.

Although not every mention of the parole law requires reversal, “[J]ury discussion of the parole laws is always misconduct,” Moore v. State, Tex.Cr.App., 535 S.W.2d 357. In Moore the Court continued:

whether the same constitutes such error as to mandate reversal depends upon the particular circumstances of each case. Heredia v. State, Tex.Cr.App., 528 S.W.2d 847.
“The trial court should always attempt to eliminate the possibility of such misconduct by instructing the jury at the punishment phase that it should not discuss or consider the possible effects of the parole laws or system.”

In Heredia v. State, supra, the Court stated:

“. . . discussion of the parole law, although common knowledge, would in every case constitute jury misconduct since the parole law is not for the jury’s consideration.

It would be improper for punishment to be based on an expectation that clemency powers would be exercised, and it would be unconstitutional to attempt to delay the exercise of the clemency powers or to avoid the possible granting of parole by increasing punishment in anticipation thereof. Article II, Sec. 1 of the Texas Constitution provides for the separation of governmental powers among the three distinct departments, the executive, legislative, and judicial. It is well established under this Article that:

“[A] power which has been granted to one department of government may be exercised only by that branch to the exclusion of the others. . . And any attempt by one department of government to interfere with the powers of another is null and void.” Ex parte Giles, Tex.Cr.App., 502 S.W.2d 774; Smith v. Blackwell, Tex.Cr.App., 500 S.W.2d 97. (Emphasis added.)

Clemency powers embodied in the parole system are beyond the reach of interference by the judicial branch, Art. IV, Sec. 11, Texas Const.; and any action by the judicial branch to frustrate or delay the exercise of that power by the executive branch is as much of an unconstitutional interference as is an attempted usurpation of that power. See, Ex parte Giles and Smith v. Blackwell, supra, for unconstitutional grants of authority to usurp clemency powers.

This is the constitutional basis for the established rule that discussion of the parole law is always jury misconduct. The issue remains, whether, in the terms of Art. 40.03(8), supra, the misconduct here was such that “the court is of opinion that the defendant has not received a fair and impartial trial.” The uncontradicted record shows that the parole law was discussed extensively, and that it did affect jury deliberations on the issue of whether to grant or deny probation, in that two jurors changed their votes from granting probation to denying probation.

The State argues that the effect of the discussion was to reduce the punishment assessed by the jury, and therefore appellant was not harmed. It is true that the two jurors who testified did reduce the term for which they would vote from eight and five years to two years. The assessment of a term of punishment, however, is only one of the issues that was before the jury. The issue of probation was also before the jury, and on that issue appellant was clearly harmed.

The State cites Lechuga v. State, Tex.Cr.App., 532 S.W.2d 581, for the proposition that five years probation is a greater punishment than three years confinement. That was not the holding in Lechuga. In the majority opinions on both original submission and on rehearing it was held that assessment of punishment at five years was greater than that of three years. Probation, the Court indicated, and on this point the dissenters agreed, is designed to serve for the benefit of the convicted defendant. It is designed to be rehabilitative and ameliorative. Some of these benefits are clear from the following excerpts from Art. 42.-12, V.A.C.C.P.:

“ ‘Probation’ shall mean the release of a convicted defendant by a court under conditions imposed by the court for a specified period during which the imposition of sentence is suspended.” [Section 2(b)]
“If probation is granted by the jury the court may impose only those conditions which are set forth in Section 6 hereof.” [Section 3a, last paragraph]
“Where probation is recommended by the verdict of the jury as provided for in Section 3a above, a defendant’s probation shall not be revoked during his good behavior, so long as he is within the jurisdiction of the court and his residence is known, except in accordance with the provisions of Section 8 of this Article.” [Section 3b]
“At any time, after the defendant has satisfactorily completed one-third of the original probationary period or two years of probation, whichever is the lesser, the period of probation may be reduced or terminated by the court. Upon the satisfactory fulfillment of the conditions of probation, and the expiration of the period of probation, the court, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the probation period and shall discharge the defendant. In case the defendant has been convicted or has entered a plea of guilty or a plea of nolo contendere, and the court has discharged the defendant hereunder, such court may set aside the verdict or permit the defendant to withdraw his plea and shall dismiss the accusation, complaint, information, or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty, except that proof of his said conviction or plea of guilty shall be made known to the court should the defendant again be convicted of any criminal offense.” (Emphasis added.)

Punishment and probation are clearly distinct and separate issues, Woods v. State, Tex.Cr.App., 532 S.W.2d 608, and the State misreads Lechuga, supra, when it argues the reduction in punishment shows appellant was not harmed. Both in Lechuga and here, as also held in Woods, supra, probation is a separate issue. The defendant has a right to have that issue determined by the jury. Blount v. State, Tex.Cr.App., 509 S.W.2d 615.

We conclude from this record that the jury misconduct of discussion of the parole law was harmful and denied appellant a fair and impartial trial. The discussion was extensive and adversely affected two jurors’ consideration of the probation issue. We need not address the issue raised under Article 40.03(7), supra.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

The only issue on this appeal is whether harmful jury misconduct occurred because of a discussion of the parole law.

John Ford Roberts, who was 56 years of age, suffered a fractured skull and blindness in one eye with a pool cue at the hands of James Sanders, the appellant, who was 24 years of age. On March 20, 1975, Bill Selfridge and Roberts, who was a tenant of Bell Place Apartments, went to the recreation area to play pool. Several men, including Sanders, were playing pool and continued to play. Roberts told them that a tenant in the apartments could have only two guests and asked them to take turns and the group became belligerent. After a heated exchange, Sanders jumped up with a pool cue and said to Roberts, “You old son-of-a-bitch, I am going to beat your brains out.” Five or six of the pool players restrained Sanders and took him with them and left. Sanders returned and ran toward Roberts and hit him with a pool cue knocking him face down on the floor.

Dr. William T. Price, an Amarillo neurosurgeon, examined Roberts after the injury. He testified that Roberts had multiple fractures of the skull and the nose. The optic nerve to the left eye had been severed as a result of the fractures and Roberts lost the sight of his left eye.

At the hearing on the amended motion for new trial, two jurors testified that some members of the jury discussed the parole law during the deliberations on punishment. Juror Erma Rigdon testified that there was a lengthy discussion involving what portion of any sentence appellant would have to serve. She stated that one juror, who was called “Colonel”, professed to be familiar with the penitentiary and parole systems because he had had prior experience with the military court-martial system. According to Rigdon, the “Colonel” stated that appellant would serve no more than eight months of a two-year sentence if he “behaved himself.”

Rigdon further testified that “a couple of other men said the same things as far as parole was concerned .”, and that after this discussion she agreed to change her vote from eight years probation to two years in prison.

Juror Konni Campbell testified that the men in general, and the “Colonel” in particular, discussed the parole law at length during the deliberations. She further testified that “Colonel” and others stated that if appellant was sentenced to two years in prison he would serve between six and eight months and then be eligible for parole.

Campbell stated that some arguments developed during the discussion and that the information regarding parole was utilized to persuade other members of the jury to assess a prison term rather than probation. She further stated that prior to this discussion she had voted for probation for five years and that after such discussion she changed her vote and agreed to assess punishment at two years. Six other jurors were present at the hearing but they were not called to testify.

Article 40.03, V.A.C.C.P., provides in part:

“New trials, in cases of felony, shall be granted the defendant for the following causes,
“(7) Where the jury, after having retired to deliberate upon a case, has received other evidence; .
“(8) Where, from the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial. . . . ”

In Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975), we held that jury discussion of the parole law requiring reversal may constitute, depending upon the facts of the case, receipt of other testimony after retiring to deliberate or misconduct that has deprived the defendant of a fair and impartial trial. We then observed that it is common knowledge that inmates of the Texas Department of Corrections are sometimes released on parole. Thus, a mere allusion to the parole law would not constitute the receipt of other evidence. But, we stated that “a misstatement of the law, by being incorrect, would constitute other evidence, since by being false it certainly could not be classified as ‘common knowledge.’ ” 528 S.W.2d at 853.

We further observed in Heredia that discussion of the parole law would constitute jury misconduct, but whether the defendant was denied a fair and impartial trial must be determined upon the facts of the individual case.

In McCartney v. State, 542 S.W.2d 156, 162 (Tex.Cr.App.1976), we stated that “[i]t is well established that issues of fact as to jury misconduct raised at a hearing on motion for new trial are for the determination of the trial judge, and where there is conflicting evidence there is no abuse of discretion where the motion for new trial is overruled. . . ” In the instant case, there was a conflict in the evidence. Juror Campbell testified that the “Colonel” and others said that appellant would be eligible for parole if he had good behavior. Juror Rigdon testified that the “Colonel” and others said that appellant would get out in eight months provided he had good behavior. This constitutes two different versions of the statements made by the jurors. The trial judge apparently chose to believe the juror Campbell who testified that the statements that appellant, upon good behavior, would be eligible for parole after serving six to eight months on a two-year term. This was in the province of the judge.

It is possible for one to be considered for parole after having been confined for six to eight months on a two-year sentence.

Article 42.12, Section 15(a), V.A.C.C.P., provides that an inmate may be released who has served one-third of the maximum sentence imposed.

Article 6181-1, V.A.C.S., provides that an inmate may earn good conduct time as follows:

“Sec. 3. (a) Inmates shall accrue good conduct time based upon their classification as follows:
“(1) 20 days for each 30 days actually served while the inmate is classified as a Class I inmate;
“(2) 10 days for each 30 days actually served while the inmate is classified as
a Class II inmate; and
“(3) 10 additional days for each 30 days actually served if the inmate is a trusty.”

Section 4 of the act provides that good conduct time applies to eligibility for parole as provided for in Section 15 of Article 42.12 of the 1965 Code of Criminal Procedure as amended.

Article 6166x-l of Vernon’s Annotated Civil Statutes provides that inmates shall receive for parole purposes credit for overtime work “double the hours so worked.” Cf. Ex parte Weaver, 537 S.W.2d 252 (Tex.Cr.App.1976), where the Court noted that overtime could not be deducted from the term of sentence for discharge purposes.

With all or part of the above possible credits, the statement that appellant could be considered for parole with good behavior after serving from six to eight months was not a misstatement of the law. See Howard v. State, 505 S.W.2d 306 (Tex.Cr.App.1974), and Jones v. State, 462 S.W.2d 578 (Tex.Cr.App.1970).

In Mays v. State, 167 Tex.Cr.R. 339, 320 S.W.2d 13 (1959), this Court held that a statement of a juror that if given a five year sentence Mays would have to serve a year and three months on a five year sentence before being eligible for parole was a misstatement of the law.

It can be seen from the statutes cited that an inmate may be eligible for parole when less than one-third of the sentence has been served. The Mays case which held that a statement that an inmate may be eligible for parole when he has served less than a third of his sentence is incorrect and it should be overruled. We should adopt the reasoning of the dissenting opinion in that case.

The State contends that the two jurors voted to decrease the punishment because they changed their vote for probation terms of five and eight years to two years’ confinement after the jurors discussed parole. It relies upon Lechuga v. State, 532 S.W.2d 581 (Tex.Cr.App.1975), in which this Court held by a three to two vote that five years' probation was more punishment than three years’ confinement in the Department of Corrections.

The majority in this case is inconsistent. It holds in effect that two years’ confinement is a more severe punishment than eight or five years of probation. There is no logical way to distinguish this case from Lechuga. The majority should admit its error and overrule Lechuga because a term of confinement of three years is more punishment than five years’ probated. Also, Lechuga should be overruled for the additional reasons stated in the dissenting opinion therein.

The trial judge did not abuse his discretion in overruling the motion for new trial.

There being no reversible error, the judgment should be affirmed.

Before the Court en banc.

DALLY, Judge,

dissenting to the overruling of the State’s motion for Rehearing without Written Opinion.

I dissent to the overruling of the State’s Motion for Rehearing without written opinion. The panel opinion on original submission reversed the judgment, saying: “. . . there is no dispute that the parole law was discussed extensively, and that it did affect jury deliberations on the issue of whether to grant or deny probation . ” and the opinion then concluded: “. . . the jury misconduct of discussion of the parole law was harmful and denied appellant a fair and impartial trial. The discussion was extensive and adversely affected two jurors’ consideration of the probation issue.” The rule applied is that: if there is extensive discussion of the parole law and a juror testifies he changed his vote the judgment will be reversed.

The panel, as did the appellant, relies on the dicta in Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975). In Heredia v. State, supra, after a review of a number of cases, it was said:

“The cases discussed establish that there has been an inconsistency of standards. Authority may be cited for a standard requiring a showing that (1) a misstatement of the law (2) asserted as fact (3) by one professing to know the law (4) which is relied upon by other jurors (5) who for that reason change their vote to a harsher punishment, before reversible error is shown; but likewise authority may be cited which would require only a showing that a statement on the parole law was made and it was either untrue or it was harmful. Much distance lies between these extremes.

“In determining the law on this matter, we turn to the statutory foundation upon which the issue ultimately rests. Article 40.03, V.A.C.C.P., provides in part:

“ ‘New trials, in cases of felony, shall be granted for the following causes, and for no other:
“ ‘Where the jury, after having retired to deliberate upon a case, has received other testimony; .
“ ‘8. Where, from the misconduct of the jury, the court is of opinion that the defendant has not received a fair and impartial trial . . . ’

“Does jury discussion of the parole law requiring reversal constitute receiving other testimony after retiring to deliberate or misconduct that has deprived the defendant of a fair and impartial trial? Some decisions ordering reversal have indicated one ground, some the other.

“We hold that either principle may apply, depending upon the facts of the case.

If the inconsistency mentioned in Heredia existed, it has persisted since Heredia was decided. See e.g. Beck v. State, 573 S.W.2d 786 (Tex.Cr.App.1978); Carrillo v. State, 566 S.W.2d 902 (Tex.Cr.App.1978; Mcllveen v. State, 559 S.W.2d 815 (Tex.Cr.App.1977); Ashabranner v. State, 557 S.W.2d 774 (Tex. Cr.App.1977); Sweed v. State, 538 S.W.2d 119 (Tex.Cr.App.1976).

To show that a jury’s discussion of the parole law constitutes reversible error, we should readopt the test, extracted from a number of earlier cases, which was stated and discussed, but rejected in Heredia v. State, supra. That test is that for reversible error to result, it must be shown that there was:

(1) a misstatement of the law
(2) asserted as a fact
(3) by one professing to know the law
(4) which is relied upon by other jurors
(5) who for that reason changed their vote to a harsher punishment.

The cases from which this test has been extracted are fully discussed in Heredia v. State, supra.

In applying this rule to the instant case we should first determine whether there was a misstatement of the law. One juror on the motion for new trial testified that another juror who professed to know the law stated that the appellant would not have to serve more than eight months if he behaved himself. Another juror testified that the juror who professed to know the law stated that a defendant sentenced to two years imprisonment would serve between six and eight months and would be eligible for parole. In resolving the conflict between these statements it may be decided that the statement made, by the juror professing to know the law, was that the appellant would be eligible for parole and would not have to serve more than eight months if his punishment were assessed at imprisonment for two years and he behaved himself. This was not a misstatement of the law. The appellant would be eligible for release on parole when his calendar time served plus good conduct time equals one-third of the maximum sentence imposed. Art. 42.12, Sec. 15(b). The maximum sentence assessed in the instant case is two years. Under the statutory provision the appellant, “if he behaved himself,” would be eligible for release on parole within eight months.

Reversible error has not been shown. The State’s Motion for Rehearing should be granted and the judgment should be affirmed.

ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ., join in this dissent.

      “4 . The determination to grant parole, if and when made, rests upon many facts and events not known to the jury, not proper for consideration by the jury, and not having occurred at the time of trial. Article 42.12, Sec. 12 et seq., V.A.C.C.P. The decision to parole, if and when made, is beyond the province of the courts . and therefore of the jury, and is exclusively a matter within the province of the executive branch of government, under proper regulation by the legislative branch. Article IV, Section 11, Texas Constitution.” (Emphasis added.)

      . Six of the jurors who appeared at the hearing and were sworn as witnesses did not testify.

      . Mays was retried and he was again assessed a punishment of five years After Mays was released on parole, the late James Bowie, who was then Assistant District Attorney in Dallas County, wrote to the clerk what he designated "State’s Continuous Motion for Re-rehearing.” It is as follows:
      “Now comes the State of Texas and respectfully moves that the Honorable Glenn Haynes, Judge Per Curiam, to set aside the opinion heretofore rendered by the lower Court of Criminal Appeals in the case styled State v. Mays, [167 Tex.Cr.R. 339], 320 S.W.2d 13, and to hold the same for naught.
      STATEMENT OF FACTS
      “The appellant, Willie Odell Mays, was convicted in Dallas County in the year 1958 and was sentenced to serve a 5-year term in our beautiful penitentiary for the unlikely offense of murder without malice.
      “Not desiring to avail himself of the exercise and friendly atmosphere of our Department of Corrections, he appealed his case to the lower court — the Court of Criminal Appeals.
      “To his surprise, as well as ours, the case was actually reversed — no kidding.
      “The said lower Court found through some legal trickery that a juror during deliberations stated, ‘As I recall, it was mentioned under a five year sentence that he would be eligible for — after year and three months.” (See: [167 Tex.Cr.R. 339] 320 S.W.2d 13, 14).
      “Judge Dice, in reversing this just conviction, held in said opinion:
      “ ‘Under the provisions of this statute appellant would not have been eligible for parole and release under a five year sentence until he had served a year and 8 months which was for a longer period than that stated by the juror. The testimony of the three jurors shows that the statement was made while the jury was divided on the punishment to be assessed and prior to arriving at their verdict in the case.’
      “The lower court therefore held that Willie Odell could not be at liberty (as a matter of law) until after he had served one year and 8 months i. e., 20 months, and the juror erred where he stated he could be sprung in 15 months.
      “Motion for rehearing was overruled without written opinion.
      “Willie Odell was again tried and again given 5 years, and again he appealed.
      “However, the court below tired of Willie Odell and affirmed his second 5-year sentence.
      “Yesterday, Willie Odell came to the office of the District Attorney of Dallas County. He was in good health and good spirits, having been released from the pen after having served his 5-year sentence in 13 months and 13 days, 6 months and 17 days less than Judge Dice guessed as a matter of law and some I month and 17 days less than the juror figured.
      “We therefore respectfully request the lower appellate court be reversed and the case against Willie stricken from the South Western Reporter.
      “If we are wrong in this regard, will you kindly explain how in the hell Willie got in my office.”

      . In deciding the case of Heredia v. State, supra, it was said:
      “We now examine the facts in this case to determine whether appellant is entitled to a new trial under either of the statutory grounds stated above. The record of the hearing on the motion for new trial shows that after the complained of statement the jury foreman promptly instructed the jurors that it would not be proper for them to consider the extraneous information communicated to them. It further reflects that thereafter the matter was not discussed.
      “If the statement be considered ‘other testimony’ under Article 40.03(7), V.A.C.C.P., in view of the prompt instruction by the foreman and the fact that it was not thereafter discussed, we conclude that it cannot be construed as having been ‘detrimental to appellant.’ Marquez v. State, 172 Tex.Cr.R. 363, 356 S.W.2d 797; Grizzeil v. State, 164 Tex. Cr.R. 362, 298 S.W.2d 816. We likewise conclude, from the same considerations, that the statement complained of did not constitute misconduct depriving appellant of a ‘fair and impartial trial’ under Article 40.03(8), supra. E. g., DeLaRosa v. State, supra [167 Tex. Cr.R. 28, 317 S.W.2d 544],
      “The ground of error is overruled.
      “The judgment is affirmed.”


author: CLINTON, Judge.

text:
    Ex parte Caster Daryll CAVITT.
    No. 61100.
    Court of Criminal Appeals of Texas, En Banc.
    April 25, 1979.
    Carol S. Vance, Dist. Atty., and Douglas M. O’Brien, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CLINTON, Judge.

This is a post-conviction habeas corpus proceeding pursuant to Article 11.07, V.A.C. C.P. This pro se petitioner contends that his April 2, 1973 conviction for robbery by assault as then proscribed by Article 1408 of the former penal code is void because the indictment is fatally defective in that it did not identify the owner of the property allegedly taken in the assault. In a written memorandum, with commendable candor the State agreed that the petitioner is entitled to relief. From our review of a line of recent decisions rendered by this Court, we are satisfied that the matter is settled.

Accordingly, the writ is granted, the conviction in Cause No. 192,217 is vacated and set aside and the indictment in that cause is dismissed. Therefore, petitioner is released from custody and every manner of restraint in his personal liberty as a consequence of the conviction. The Clerk of this Court is directed to forward a copy of this opinion to the Texas Department of Corrections.

It is so ordered.

      . Ex parte Fontenot, 550 S.W.2d 87 (Tex.Cr.App.1977); Batro v. State, 531 S.W.2d 614 (Tex.Cr.App.1975); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975) and Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973).

      . Articles 11.07 and 11.64, V.A.C.C.P.; Ex parte Guzman, 551 S.W.2d 387 (Tex.Cr.App.1977).


text:
    Joe Allen SPARKMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 57181.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 2, 1979.

      Bertrand C. Moser, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann, and Frank Harmon, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Appellant was convicted of the offense of aggravated rape. Sentence was assessed at fifty years. Appellant’s counsel filed a brief raising one ground of error.

The contention is that the trial court erred by allowing testimony at the punishment stage of the trial concerning appellant’s reputation for being peaceful and law-abiding. In 1969 appellant was convicted of robbery. However, that conviction was set aside in federal court on the grounds that appellant had been incompetently represented by counsel. The State then dismissed the indictment.

Appellant was convicted in this cause after a jury trial. His counsel filed a pretrial motion in limine to exclude any reference at trial to the 1969 robbery conviction. That motion was granted, and no mention was made of the conviction during the trial on the merits. At the punishment hearing the State called as a witness Calvin Botley, Chief of the Houston Office of the Attorney General of Texas. Appellant’s counsel conducted extensive voir dire examination of Botley’s qualifications as a character witness. Botley testified that he had represented the State in the federal habeas corpus hearing at which appellant’s 1969 robbery conviction was set aside. The examination established that Botley’s knowledge of appellant’s reputation for being a peaceful and law-abiding citizen was based on his preparation for that federal habeas corpus hearing:

“Q: All right. Now, isn’t it true that your knowledge of Joe Sparkman’s reputation is based entirely on the investigation you did in preparing for that writ hearing?
A: Yes, sir. to some extent, of course, as all lawyers do, they investigate cases that you’re handling, and from information attained and from reading the prior record in the case, that’s the extent of my knowledge.
Q: Do you have knowledge of Mr. Sparkman’s reputation in the community in which he resides and among the people he knows?
A: That’s correct, yes, sir.
Q: Now, let me pin this down. From whom do you know that reputation?
A: Well, let me explain it this way, if I may. Prior to the federal court proceeding, I went out to, I believe, it’s called the K-Bar Lounge to talk to persons there, and to talk to anybody that had any information upon the — that had some bearing upon the case. In the process, we were trying to ascertain distances from the alleged scene of the offense, distances to there and back, and possibly anybody that had any information on him. We had excerpts from the district attorney’s file, we had the trial record, the opinion of the Court of Criminal Appeals, and we were trying to put it all together, and from the people whom we discussed the matter with, were of the opinion that Mr. Sparkman, I guess, I’d say, was a little wild.”

After hearing the voir dire examination, the trial judge allowed Botley to testify that appellant had a bad reputation as a peaceful and law-abiding person. Appellant contends that the admission of that testimony was error for three reasons. First, the testimony was based solely on Botley’s discussions about facts leading to a void conviction. Second, the testimony was the “fruit of an unconstitutional conviction.” Third, appellant was “effectively denied the opportunity to cross-examine.”

The first argument centers on the fact that Botley’s knowledge was based exclusively on his involvement in the case overturned in federal court. Appellant draws an analogy to cases in which the witness’ knowledge of the defendant’s reputation is based solely on a discussion of the case on trial. See, e. g., Wright v. State, 491 S.W.2d 936 (Tex.Cr.App.1971). He reasons that “to allow adverse inferences against a defendant for a criminal act not yet proved would be to destroy the presumption of innocence the defendant has to the act charged.” Presumably he is arguing that because the robbery conviction was void, allowing Botley’s testimony amounted to an “adverse inference” from an act not yet proved.

We cannot agree with appellant’s analysis for several reasons. First, the voir dire examination does not show conclusively that Botley’s knowledge was based entirely on the facts surrounding the robbery itself. It indicates only that his knowledge is exclusively based on his investigation of the robbery. Botley’s testimony shows that he spoke with various persons at the K-Bar Lounge who gave “information” about appellant. It is not specified in the record the scope of matters discussed with those persons regarding appellant’s reputation. Second, the reason for the rule that reputation cannot be based solely on the facts of the case at trial is as stated in Stephens v. State, 128 Tex.Cr.R. 311, 80 S.W.2d 980, 982 (1935):

“If the discussion of the charge contained in the indictment could be used as a basis for showing that a man’s reputation as a law-abiding citizen was bad, then no man who was on trial could successfully show a good reputation as a law-abiding citizen.”

The jury is concerned at the punishment hearing with evaluating a defendant’s background and character independent of the commission of the crime on trial. In that context the jury may determine the proper punishment. There is no requirement that a defendant’s reputation for being peaceful and law-abiding must be based exclusively on final convictions of offenses. If people in a community have developed an opinion of a defendant’s reputation, and the character witness has become aware of that reputation through his discussions, the testimony is relevant and admissible.

Appellant’s second supporting argument for his ground of error is that the character witness testimony was the “fruit of an unconstitutional conviction.” We find this argument to be without merit. Appellant’s conviction was not set aside because of any misconduct on the part of the State, such as an illegal search, illegal arrest, or improper lineup. There was no “taint” created by the State, and the only reason for the void conviction was a finding that appellant’s counsel gave inadequate representation at trial. Exclusion of the character witness’ testimony would not serve as a deterrent to State misconduct. Further, the reliability of the witness’ testimony would not be affected because it was reputation evidence, not evidence as to appellant’s guilt or innocence of the robbery itself.

Finally, appellant contends that his right to cross-examine the character witness was improperly restricted. Appellant’s counsel decided to waive cross-examination of Bot-ley. He explained in detail on the record that the reason for the waiver was his feeling that the only way to cross-examine would be to go into the details of the robbery. He therefore contends that appellant was forced to choose between the right to keep the void conviction from the jury and the right to effective cross-examination.

We are not persuaded by this contention either. Because appellant’s counsel was found to have given improper representation, it was proper to keep from the jury the fact that appellant had been convicted of the robbery. However, the actual dilemma faced by appellant’s counsel was no different than the problem faced by all attorneys in cross-examining a character witness. That is, the attorney tries to discredit the witness’ actual knowledge of reputation without revealing details of the specific extraneous offenses or acts upon which that reputation was derived. By cross-examining on the actual knowledge of reputation, appellant’s counsel would not open the door to introduction of the void trial and conviction.

Ground of error number one is overruled.

Appellant has filed a pro se brief raising eight additional grounds of error. We have considered each ground and find them to be without merit.

For these reasons the judgment below is affirmed.


text:
    James Lorenza WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 57381.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 2, 1979.

      Howard B. Law, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Maridell J. Templeton, C. Wayne Huff and Paul D. Macaluso, Asst. Dist. Attys., Dallas, and Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated assault; punishment was assessed at five years.

In his fifth ground of error, appellant asserts the trial court “erred in refusing appellant’s requested charge on self defense and for failing to properly charge the jury on self defense under the facts of the case.” Although no argument or authorities are presented in support of this ground of error, the record does contain the court’s charge to the jury and appellant’s written requested charges on self-defense that were overruled by the trial court. We are able to determine the basis for appellant’s complaint and therefore consider his ground of error. Art. 40.09(9), V.A.C.C.P.

The court submitted a charge on self-defense, and then restricted the right of self-defense with this instruction on provoking the difficulty:

“The use of force against another is not justified if the defendant provoked the other’s use or attempted use of unlawful force, unless the defendant abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and the other nevertheless continues or attempts to use unlawful force against the defendant.”

Among appellant’s requested charges that were denied by the trial court was this one:

“You are instructed that the defendant had the right, under the law, to arm himself against any attack or threatened attack which the assailants, Edward Mathis or Thomas Mason, alias Marshall, might make upon him.”

We spoke to this area of the law and its continued vitality under the 1974 Penal Code in the case of Young v. State, 530 S.W.2d 120:

“It has been the consistent holding of this court that unless the court’s charge places some limitation upon the accused’s right of self-defense, such as by charge on provoking the difficulty or otherwise, a charge on the right to carry arms is not necessary. Watson v. State, 513 S.W.2d 577 (Tex.Cr.App.1974); De La Cruz v. State, 490 S.W.2d 839 (Tex.Cr.App.1973); Cavazos v. State, 423 S.W.2d 582 (Tex.Cr.App.1968); Donaldson v. State, 372 S.W.2d 339 (Tex.Cr.App.1963); Pierson v. State, 160 Tex.Cr.R. 567, 272 S.W.2d 901 (1954); 4 Branch’s Ann.P.C., 2d ed., Sec. 2129, p. 453.
“On the other hand, it is equally well settled that if the court’s instruction limits the accused’s right of self-defense by a charge on provoking the difficulty, then the jury should be advised in a proper instruction under the facts that the accused’s right of self-defense would not necessarily be abridged by the fact that he carried arms to the scene of the difficulty if such instruction is supported by the evidence. Porter v. State, 152 Tex.Cr.R. 540, 215 S.W.2d 889 (1948); Hunter v. State, 137 Tex.Cr.R. 289, 128 S.W.2d 1176 (1939); Harris v. State, 116 Tex.Cr.R. 426, 32 S.W.2d 459 (1930); Allen v. State, 102 Tex.Cr.R. 441, 278 S.W. 201 (1925); Frazier v. State, 100 Tex.Cr.R. 157, 272 S.W. 454 (1925); Clark v. State, 99 Tex.Cr.R. 80, 268 S.W. 465 (1925).
“We cannot agree from a reading of sections of the Penal Code involved or from a history of the enactment itself that it was the intention of the Legislature to codify all existing case law on self-defense and that part not mentioned no longer would have application under the new Code. .
“We decline to overrule the rule the State seeks to abolish which has long been part of the case or decisional law of this State, see, i. e., Cartwright v. State, 14 Tex.App. 486, 502 (1883); Parker v. State, 18 Tex.App. 72,86 (1885); Shannon v. State, 35 Tex.Cr.R. 2, 28 S.W. 687 (1894); Hall v. State, 44 Tex.Cr.R. 444, 60 S.W. 769 (1901), and see no conflict of such rule with the new Penal Code. Thus, the failure of the trial court to grant the requested charge as to appellant’s right to arm and seek an explanation, which charge was supported by the evidence, constitutes reversible error.”

In this case the court restricted the right to self-defense with a charge on provoking the difficulty and the court denied appellant’s requested charge on the right to arm himself. Resolution of the issue on appeal of whether the trial court’s action constitutes reversible error turns on whether the evidence raised the issue.

The State in its brief on appeal argues only that the evidence did not raise the issue. The record is otherwise.

Appellant’s version of the events on the day in question differ markedly from those of the State’s witnesses. Appellant was confronted at the tennis court in a park in Dallas by Edward Mathis, the complaining witness in this case, and Thomas Mason, who was known to appellant as Thomas Marshall. Mathis weighed 235 pounds and Mason weighed more. Accordingly to appellant’s testimony Mason was making threats to him and Mathis was acting with him and backing him up. Mason was carrying a tree limb and two beer bottles. Appellant fled the park on foot because Mason and Mathis prevented him from getting to his parked car. Ten to twenty minutes later appellant returned to the park with a shotgun to retrieve his car. When he arrived he discovered that his car, which he had left his keys in, had been locked by someone. As he approached the car he saw Mathis crouched over in a squatting position. It appeared to appellant that Mathis was aiming something at him. Appellant explicitly testified that he thought Mathis had a gun. Appellant loaded his single barrel shotgun and fired one shot in front of Mathis to scare him. Mathis then started to move toward appellant, so he loaded a second shot and fired it in the air because he thought Mathis was coming toward him with a gun.

Although the State’s witnesses contradicted appellant’s version of what happened, the issue of whether the charge should have been given depends on what testimony was presented, not what is or is not believed as to the truth of that testimony. We find that appellant’s testimony raised the issue of self-defense. Although it is questionable whether the evidence authorized a charge on provoking the difficulty, since the self-defense charge was restricted by a charge on provoking the difficulty, appellant was entitled to have the jury instructed as well on the right to carry the shotgun to the scene to protect himself against possible unlawful attack against him while he attempted to retrieve his car. His requested charge was sufficient to inform the trial court of the need for such a charge, and denial of such a charge constituted reversible error.

The judgment is reversed and the cause remanded.


author: TOM G. DAVIS, Judge.

text:
    Embry Lloyd GUSTER, Appellant, v. The STATE of Texas, Appellee.
    No. 58559.
    Court of Criminal Appeals of Texas, En Banc.
    May 2, 1979.

      William D. Tipton, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and William W. Burge, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for credit card abuse. Trial was before the court upon a plea of guilty. Punishment, enhanced by a prior felony conviction, was assessed at fifteen years and one day.

Appellant urges for the first time that the indictment under which he was convicted is fundamentally defective.

In pertinent part the indictment alleges that appellant:

“. . . on or about December 14,1976 unlawfully with intent to fraudulently obtain property and services, present to Mazella Beaudoin a Exxon Company, U.S.A. credit card owned by Edward Griffeth, hereafter styled the complainant, without the effective consent of the complainant knowing the credit card had not been issued to the Defendant."

Appellant’s attack on the indictment stems from its failure to aver that appellant presented the card knowing that he did not have the effective consent of the cardholder.

V.T.C.A. Penal Code, Sec. 32.31(b), provides:

“(b) A person commits an offense if: “(1) with intent to obtain property or service fraudulently, he presents or uses a credit card with knowledge that:
“(A) the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder; . . .

The indictment fails to allege that the appellant used the credit card knowing that he did not have the effective consent of the cardholder. The indictment is identical to the one in Ex parte Dawson, Tex.Cr.App., 578 S.W.2d 749 (1979), which was held fundamentally defective. See also Ex parte Walters, Tex.Cr.App., 566 S.W.2d 622; Ex parte Reed, Tex.Cr.App., 574 S.W.2d 161; Ex parte Mathis, Tex.Cr.App., 571 S.W.2d 186.

Appellant’s motion for rehearing is granted and the judgment is reversed and the cause remanded.


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

text:
    Ex parte Billy Wayne DOWDEN, Appellant.
    No. 59889.
    Court of Criminal Appeals of Texas, En Banc.
    May 2, 1979.

      Billy Wayne Dowden, pro se.
    Carol S. Vance, Dist. Atty. and Douglas M. O’Brien, Asst. Dist. Atty., Houston, and Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

These proceedings involve a post-conviction application for writ of habeas corpus under Article 11.07, V.A.C.C.P.

On April 30, 1975 the petitioner pled guilty to the indictment charging that he, acting together with Clifford S. Blansett, killed the deceased, Danny Gray, by shooting him with a gun, knowing and being informed that Gray was a peace officer. He waived trial by jury. Punishment was assessed by the court of life imprisonment. Apparently the State had entered a plea bargain to waive the death penalty.

The real thrust of his argument is that in a capital murder case an accused cannot waive trial by jury and the State may not waive the death penalty.

Article 1.14, V.A.C.C.P., provides:

“The defendant in a criminal prosecution for any offense may waive any rights secured him by law except the right of tria] by jury in a capital felony case.” (Emphasis supplied.)

V.T.C.A., Penal Code, § 19.03, defines capital murder and provides in part:

“(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:
“(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;
“(2) * * *
“(b) An offense under this section is a capital felony.
“(c) If the jury does not find beyond a reasonable doubt that the defendant is guilty of an offense under this section, he may be convicted of murder or of any other lesser included offense.” (Emphasis supplied.)

V.T.C.A., Penal Code, § 12.31, provides:

“(a) An individual adjudged guilty of a capital felony shall be punished by confinement in the Texas Department of Corrections for life or by death.
“(b) Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”

It is clear from a study of the Penal Code that capital murder is the only capital felony provided by such code. In the Practice Commentary to said § 19.03 it is written:

“Section 19.03 is a separate offense, punishable by a mandatory sentence of death or life imprisonment, see Section 12.31, and once an indictment is presented for capital murder the prosecutor may not waive the death penalty as he could under C.C.P. art. 1.14 before that article was amended by the Capital Felony Act of 1973. The offense’s mandatory nature is the first of the constitutional bases touched by the legislature in recognition of the fact that three of the majority in Furman objected to the death penalty essentially because of its discretionary application.”

In Batten v. State, 533 S.W.2d 788 (Tex. Cr.App.1976), this court was confronted with an unusual fact situation. The trial judge took the position in that case that since the State had not filed a written notice that it would seek the death penalty within certain time limits the State had waived the death penalty. Overlooked was the fact that the statute on which the court relied had been amended and there was no longer such a requirement. The trial court ordered the trial to proceed as a capital murder trial but instructed the jury that the only possible penalty was life imprisonment. The trial court refused the defendant the procedures applicable to the trial of a capital felony case. The court refused the request for separate voir dire examination of the jurors and denied the defendant the fifteen peremptory challenges granted each party in a capital case under Article 35.-15(a), V.A.C.C.P. Upon a finding of guilt, the court did not submit the special issues required by Article 37.071, V.A.C.C.P., but simply instructed the jury to assess life.

In Batten we held that the trial court erred in holding that the State had waived the death penalty and in limiting the number of peremptory challenges, etc., but then had to decide whether the error was reversible.

In Batten we stated:

“We agree that in the wake of Furman the Legislature has adopted a ‘category of cases’ view and has adopted a mandatory procedure to be followed in capital cases where the extreme penalties of death or life imprisonment are involved, and that it is not possible to say, absent a clear legislative expression, that the possibility of the imposition of the death penalty was the sole reason the Legislature mandated the procedure to be used in capital murder cases. Under the statutory scheme adopted, the State may not waive the death penalty, but even in cases such as the instant one where such waiver has been improperly permitted, the capital case procedures, including the right to fifteen peremptory challenges, are still applicable even though the only possible penalty under the circumstances would be life imprisonment.”

It is clear from what has been said that the State cannot waive the death penalty in capital murder cases, and that the petitioner could not validly waive the right to trial by jury.

The relief prayed for is granted, and petitioner is remanded to the custody of the Sheriff of Harris County to answer the indictment in Cause No. 225031 in the 182nd District Court.

It is so ordered.

ROBERTS, Judge,

concurring.

As the majority ably points out, the plea bargain attempted in the present case is an impossibility for two statutory reasons: (1) An accused, in a capital felony case, cannot waive the right to trial by jury. Article 1.14, Vernon’s Ann. C.C.P. (2) Capital murder is a separate offense, punishable by a mandatory sentence of death or life imprisonment and therefore, neither of these mandatory sentences can be waived by the State. V.T.C.A., Penal Code, Section 12.31.

In the present case, the State was not precluded from dismissing the capital felony indictment in order to proceed on an indictment or information for the lesser included offense of murder. Had this been done, a valid plea bargain could have been struck between the State and the appellant providing that in return for appellant’s plea of guilty the State would recommend punishment at life imprisonment. Under our present capital felony scheme, this is the only possible way the State could have entered into a plea bargain such as the one sought in the present case.

For the reasons stated, I concur.

PHILLIPS and DALLY, JJ., join in this opinion.

DOUGLAS, Judge,

dissenting.

The majority grants relief and holds that in a case where a capital offense is charged a defendant cannot waive a trial by jury after the State waives the death penalty.

V.T.C.A., Penal Code, Section 12.31(a), provides that the punishment for a conviction for capital murder under V.T.C.A., Penal Code, Section 19.03, is limited to either life imprisonment or death. Death, however, is the permissible punishment only if the jury answers “yes” to the questions set out in Article 37.071, V.A.C.C.P. In addition, Article 1.14, V.A.C.C.P., states that a defendant accused of capital murder may not waive his right to a jury.

Appellant relies on Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976), for the proposition that the State may not waive the death penalty in a capital case.

Under the “category of cases” view, the five acts delineated as capital crimes are by their nature capital offenses regardless of whether the death penalty is to be imposed. Allen v. State, 552 S.W.2d 843 (Tex.Cr.App.1977); Batten v. State, supra. This reasoning, however, does not compel us to hold that the State may not waive the death penalty in a prosecution under V.T.C.A., Penal Code, Section 19.03, and no statute requires such a ruling.

The present Texas statutes relating to capital cases were passed in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and were an attempt by the Legislature to alleviate the constitutional infirmities of our former law, the most significant of which appeared to be unbridled discretion. This was also the reasoning behind the dictum in Batten v. State, supra. See Crump, Capital Murder in Texas, 14 Houston L.Rev. 531 (1977).

In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), which was decided after Batten, the Supreme Court of the United States clarified its views on prosecutorial discretion. The defendant argued that the Georgia capital murder statute was unconstitutional because the prosecutor had “unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them.” He also complained of the jury’s ability to convict only for a lesser included offense and the governor’s authority to commute the sentence. In answering these contentions the Supreme Court wrote:

“In order to repair the alleged defects pointed to by the petitioner, it would be necessary to require that prosecuting authorities charge a capital offense whenever arguably there has been a capital murder and that they refuse to plea bargain with the defendant. If a jury refused to convict even though the evidence supported the charge, its verdict would have to be reversed and a verdict of guilty entered or a new trial ordered, since the discretionary act of jury nullification would not be permitted. Finally, acts of executive clemency would have to be prohibited. Such a system, of course, would be totally alien to our notions of criminal justice.
“Moreover, it would be unconstitutional. Such a system in many respects would have the vices of the mandatory death penalty statutes we hold unconstitutional today in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).”

It is, therefore, apparent that to hold that the State may not waive the death penalty in a capital case is to deny both the State and the defendant the ability to plea bargain in an appropriate case. Such a restriction was condemned in Gregg. The law has changed since Batten was written. A contrary holding would not only render our entire capital punishment system constitutionally suspect but would also require a determination of at what point in the innumerable steps of the criminal justice system does a case become a capital offense and could conceivably restrict the State’s ability to accept a plea to a lesser included offense.

The State should be able to waive the death penalty while retaining the capital feature of offense, it logically follows that it is appropriate for a trial court to accept a plea of guilty in such a case and impose a life sentence.

The question presented, however, is whether this guilty plea may be accepted by the trial judge without impaneling a jury.

In Allen v. State, 552 S.W.2d 843 (Tex.Cr.App.1977), the defendant was stipulated to have been sixteen (16) years of age on the date of the offense and, therefore, could not be sentenced to death under V.T.C.A., Penal Code, Section 8.07(d). After returning a verdict of guilty, the trial jury was dismissed and the court assessed punishment at life imprisonment. In affirming the conviction we said:

“While a jury is ordinarily required in all capital murder cases at the ‘sentencing proceeding’ by virtue of the provisions of Article 37.071, [and Article 1.14] the very purpose of the jury at such stage of bifurcated trial is to answer the special issues submitted to them. Dependent upon the answers, the court then, not the jury, assess[ed] the punishment. However, in the instant case it would be irrelevant what evidence would have been offered or how the jury answered the issues submitted because the only permissible punishment was imprisonment for life. To hold that a jury was required to hear evidence and answer special issues in the instant case would be to require a useless thing. The law does not require a useless thing to be done. We do not believe the Legislature intended such a result.”

We have held that an accused has no constitutional right to have a jury assess punishment. See Jones v. State, 502 S.W.2d 771 (Tex.Cr.App.1973); Emerson v. State, 476 S.W.2d 686 (Tex.Cr.App.1972).

To require that a jury be impaneled for the sole purpose of receiving the defendant’s guilty plea is a time consuming, expensive and useless thing unintended by the Legislature. A plea of guilty to the court rather than the jury does not render the plea less credible. Since the death penalty was not being sought, the court could impose only one sentence, life. There, as in Allen, the function of the jury would be perfunctory at best.

Another factor in allowing the accused to plead before the court is to ensure the enforcement of the plea bargain. After hearing the defendant’s admission of guilt, a jury would be free to disregard the bargain and answer the questions under Article 37.-071 affirmatively, thereby tying the hands of both the prosecution and the court.

It is only where death is at stake or the defendant professes innocence that the procedural safeguards provided by Articles 1.14 and 37.071 and Section 12.31, supra, become imperative and essential for due process. No sentence of death may be carried out until after there has been an appeal to the Court of Criminal Appeals and one will not be affirmed unless the trial has been before a jury. See Article 37.071(f), V.A.C.C.P.

As noted above, the safeguards herein referred to were passed in response to Fur-man and have been modified by the decisions of this Court and the Supreme Court of the United States. In decreeing that a defendant may not waive his right to a jury in a capital case, the Legislature did not intend to do a useless thing. However, requiring a jury to be impaneled merely to accept the accused’s guilty plea and assess the only punishment sought would be useless indeed. Accordingly, in construing Articles 1.14 and 37.071, V.A.C.C.P., and V.T. C.A., Penal Code, Sections 19.03 and 12.31, we should hold that an accused may not waive his right to a jury trial in any capital felony case except where he agrees to plead guilty to the capital charge in return for a promise that the State will not seek the death penalty against him.

The majority relies upon Batten v. State, 533 S.W.2d 788 (Tex.Cr.App.1976). In that case the trial judge erroneously thought that the State had waived the death penalty by not filing a written notice that it would seek the death penalty. The court refused separate voir dire examination of prospective jurors and denied fifteen peremptory challenges granted each party in a capital case under Article 35.15, V.A.C.C.P. The only instruction on punishment was for the jury to assess it at life.

The Court in Batten held that there was a “category of cases” view and the mandatory procedure had to be followed, and that the State cannot waive the death penalty and that a defendant in a capital murder case cannot waive a jury.

There is no reason for such a rule because a defendant cannot be assessed the death penalty when a jury has been waived. Allowing the waiver of the death penalty is beneficial to a defendant. It takes away the possibility that he could be executed for the offense. The Batten case should be overruled. As Justice Brandéis said in DiSanto v. Pennsylvania, 273 U.S. 34, 43, 47 S.Ct. 267, 71 L.Ed. 524 (1927), “The logic of words should yield to the logic of realities.”

Since appellant did plead guilty voluntarily and his punishment was assessed at life, his contention should be overruled.

The relief sought should be denied.

ODOM and W. C. DAVIS, JJ., join in this dissent.

      . The case was heard in the 182nd District Court of Harris County following a change of venue from Orange County.

      . See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

      . Nothing in Batten held that the State could not reduce a charge of capital murder to any lesser included offense, such as murder with its wide range of penalties. See V.T.C.A. Penal Code, §§ 19.02 and 12.32.

      . The dissent cites Alien v. State, 552 S.W.2d 843 (Tex.Cr.App.1977), which distinguished Batten and which is distinguishable from the instant case. In Alien the defendant was sixteen years old at the time of the capital murder offense and could not be given the death penalty under V.T.C.A., Penal Code, § 8.07(d). He was certified for trial as an adult. He was given a jury trial on his not guilty plea with the capital felony procedures being followed at the guilt stage, such as being permitted fifteen peremptory challenges and allowed separate and
      individual examination of the prospective jurors. He was not accorded a jury trial at the penalty stage of the trial because there was only one penalty — life imprisonment, and the jury’s answers to the special issues under Article 37.071, V.A.C.C.P., would not have affected the penalty regardless of what they were, and because the law does not require a useless thing. Death was not a possible penalty because of the statute relating to Allen’s age at the time of the offense, not because the death penalty was waived by the State, as in the instant case. He was accorded a jury trial and not permitted to waive trial by jury as in the instant case. He was permitted capital felony procedures where the appellant was not. Alien clearly is not controlling.
      The dissent also misreads the Batten decision and the reasoning behind such decision.

      . See Blansett v. State, 556 S.W.2d 322 (Tex.Cr.App.1977), for a summary of the facts of the offense.


text:
    Ex parte Patty CANTRELL, Appellant.
    No. 60492.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 2, 1979.

      Paul G. Johnson, Huntsville, for appellant.
    Tim C. Curry, Dist. Atty. and William D. Kane, Asst. Dist. Atty., Fort Worth, and Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

In this post-conviction habeas corpus proceeding pursuant to Article 11.07, V.A.C.C.P., the parties agree that the carving doctrine is applicable. The only question to be decided is which of two convictions must be set aside. The matter is presented in much the same posture as it was in Ex Parte Cantrell, 571 S.W.2d 38 (Tex.Cr.App.1978), apparently a separately indicted co-defendant with our petitioner. Here, as there, the habeas court, being also the convicting court, did not hold a formal evidentiary hearing but, as contemplated by petitioner in her application, reviewed the records of the court and made the following germane findings of fact:

«2 * * *
2. The Court first accepted a plea of guilty from Petitioner in cause number 83407 for the robbery of Thomas Nanney on February 12, 1971. Petitioner was assessed a life sentence.
g * * *
4. The Court lastly accepted a plea of guilty from Petitioner in cause number 83406 for the offense of assault to murder Thomas Nanney on February 12, 1971. Petitioner was assessed a 25-year sentence to run concurrently with the life sentence in cause number 83407.”

Based upon these findings the habeas court recommends that the conviction in Cause Number 83406 for the offense of assault to murder be set aside. We agree.

Not only are the fact findings supported by the files and records examined by the habeas judge — a procedure found constitutionally sufficient in Ex Parte Davila, 530 S.W.2d 543, 545 (Tex.Cr.App.1975) — but our own independent examination of materials in the record presented to us now lends credence to those findings. Furthermore, while the order of disposing of two of the three causes on the same day is somewhat different from Ex Parte Cantrell, supra, in each instance the offense of assault to murder Thomas Nanney was the last of three convictions and was made to run concurrently in the same fashion.

We therefore conclude that conviction for assault with intent to commit murder with malice in Cause Number 83406 is violative of the carving doctrine and, accordingly, petitioner is entitled to relief here ordered.

The writ of habeas corpus is granted, the conviction in Cause Number 83406 is vacated and set aside and the indictment in that cause is dismissed. Therefore, petitioner is released from custody and every manner of restraint in her personal liberty as a consequence of the conviction. The Clerk of this Court is directed to forward a copy of this opinion to the Texas Department of Corrections.

It is so ordered.

      . The doctrine “allows the prosecutor to carve as large an offense out of a single transaction as he can, yet he must cut only once,” Simco v. State, 9 Tex.Ct.App. 338, 349 (1880) citing Quitzow, 1 Tex.Ct.App. 47, 53 (1876); Herera v. State, 35 Tex.Cr.R. 607, 34 S.W. 943, 944 (1896); Ex Parte Caldwell, 537 S.W.2d 265, 266 (Tex.Cr.App.1976); 1 Branch’s Penal Code, 2d Ed., 265, § 654.

      . In her sworn application petitioner states; “Petitioner does not recall which conviction came first. If the records do not reflect which conviction came first, the conviction with the highest cause number should be reversed. If the records do reflect the sequence, whichever conviction came second should be reversed.”

        .Inter alia, the docket entries permit inferences consistent with the findings. Thus in Cause Number 83407 it is noted that the life sentence imposed is “to commence" on a stated date and in Cause Number 83406 the sentence of 25 years is noted to run concurrently with Cause Number 83407, a commencement date neither noted nor needed since it had already been provided in Cause Number 83407.

      . Articles 11.07 and 11.64, V.A.C.C.P.; Ex Parte Guzman, 551 S.W.2d 387 (Tex.Cr.App. 1977).


author: DOUGLAS, Judge.

text:
    Ex parte Tom Henry MATHIS.
    No. 61235.
    Court of Criminal Appeals of Texas, En Banc.
    May 2, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an application for writ of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P.

Tom Henry Mathis contends that his convictions for credit card abuse in Cause Numbers F-76-5255-PM and F-76-5257PM are void because they are based on fundamentally defective indictments. The indictment in F-76-5255-PM, which is identical to the other indictment in all material respects, alleges that Mathis did:

“ . . then and there present to CHARLES EPLEY, a A&A Liquor Credit Card Number 28576, with intent to obtain property and service, without the effective consent of the cardholder R. SABA.”

Petitioner contends that the indictment is void because it fails to allege that he “intended to obtain the property fraudulently” and that he acted “with knowledge that the card was not issued to him.” The statutory definition of the offense provides:

“A person commits an offense if:
“With intent to obtain property or service fraudulently, he presents or uses a credit card with knowledge that: the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder.” V.T.C.A., Penal Code, Section 32.-31(b)(1)(A).

In Ex parte Mathis, 571 S.W.2d 186 (Tex. Cr.App.1978), we considered an indictment drafted in the same language. We observed:

“[I]t fails to allege that the appellant had the intent to obtain the property fraudulently . . . and it fails to allege that he acted with knowledge that the credit card had not been issued to him or that it was not used with the effective consent of the cardholder.”

We then concluded that such an indictment was fundamentally defective and void.

The holding of Ex parte Mathis controls the instant case. Both indictments herein complained of fail to fully allege an offense and are void.

Relief is granted to petitioner in both eases and it is ordered that the indictments be dismissed.


author: DALLY, Judge. CLINTON, Judge,

text:
    Ex parte Jerry Wayne FITCH, Appellant.
    No. 61284.
    Court of Criminal Appeals of Texas, En Banc.
    May 2, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DALLY, Judge.

The petitioner seeks post-conviction relief under the provisions of Art. 1107, V.A.C. C.P. He asserts that his conviction for robbery should be set aside when the doctrine of carving is applied.

On April 12, 1973, the petitioner waived jury trials and entered pleas of guilty to the offenses of escape from jail, Art. 353b, V.A. P.C. (1925), and robbery, Art. 1408, V.A.P.C. (1925). The punishment of imprisonment for twenty-five years for robbery was cumulated with the punishment of imprisonment for five years for escaping from jail.

The petitioner and other prisoners in the Pecos County Jail, using a rifle, robbed the sheriff of over two hundred dollars, locked him in a cell, and escaped from the jail. The petitioner alleges that the escape and the robbery were one uninterrupted sequence of events and that since the sheriff was the custodian of the prisoners he was the victim of both the robbery and the escape. Therefore, petitioner argues, the doctrine of carving will not permit his conviction for both offenses. He relies on Ex parte Birl, 545 S.W.2d 169 (Tex.Cr.App.1977), and Hawkins v. State, 535 S.W.2d 359 (Tex.Cr.App.1976).

In Ex parte Birl, supra, the same assaultive act was a common ingredient of both the robbery and the murder. In Hawkins v. State, supra, we upheld convictions for both the possession of a prohibited weapon and a robbery in which that weapon was used because they were separate and distinct offenses.

We find petitioner’s reasoning faulty because the escape from custody is not a criminal offense against the sheriff. Although the prisoners assaulted the sheriff in their escape, that assault was not a necessary element of the offense of escaping from jail. We find that the offense of robbery and escape from jail are separate offenses and the convictions for both are not prohibited by the doctrine of carving. The relief sought is denied.

CLINTON, Judge,

dissenting.

While Herera v. State, 35 Tex.Cr.R. 607, 34 S.W. 943 (Tex.Cr.App.1896) did not originate the carving doctrine, the opinion states it in a manner that has been often quoted:

“[Wjhen one transaction is presented to the government, which may include distinct criminal offenses by different names, the government can carve but once. It can take the greater, and prosecute for that; or it can take the lesser offense, and prosecute for that; and a prosecution and conviction for either will equally be a bar to another subsequent prosecution for the other offense, which involved the same transaction.” Id. at 944.

On the same day in April 1976, this Court handed down opinions in Hawkins v. State, 535 S.W.2d 359 (Tex.Cr.App.1976) and Ex Parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976). Both cases addressed the same single issue of whether the respective pleas of former jeopardy were good. Hawkins reviewed recent decisions of the Court and found a “common thread” running through them: “The common factor has been an uninterrupted and continuous sequence of events or assaultive acts directed toward a single victim.” Jewel began its examination with Herera supra, and quoted from the portion of the opinion applying the test, but omitted to state the test itself as the Herera court drew it from Bishop, New Criminal Law and explicated it:

“Mr. Bishop lays down the following rules, to determine [whether] the indictments are not for the same offense: . or when (3) each indictment sets out an offense differing in ail its elements from that in the other, though both relate to one transaction . . . ’ * * * Applying the above test (subdivision 3) to ascertain whether or not the two offenses charged in this case are the same, it cannot be said that the two offenses set out differ in all of their elements. The assault charged is the same in both.”

Jewel thus recognized and applied the settled “common element” test. Hawkins and Jewel each make plain the proposition that there are two separate and different tests by which a claim of former jeopardy may be determined.

The per curiam opinion in this cause, by discussing Hawkins v. State and Ex Parte Birl which relied primarily on Hawkins, considers and applies only the “uninterrupted and continuous sequence” tests. For its failure to examine the “common element” test of Herera, I respectfully dissent.

Stated in terms of the true Herera test, the question is whether the offense of escape and the offense of robbery “differ in all their elements.” Article 353b, of the former penal code, provided that if a prisoner “shall use a firearm ... in his escape” he shall be punished by confinement for not less than five nor more than fifteen years. Admonishing petitioner on two different occasions, the trial court stated the range of punishment as “a minimum of five years and a maximum of fifteen years;” punishment was assessed at five years and the sentence imposed was not less than five years nor more than five years. Clearly, then, the trial court was proceeding on the basis of using a firearm in making escape. Tracking old Article 1408, 1925 P.C., the indictment in this cause charged making an assault and by that assault and by violence and by putting the sheriff in fear of life and bodily injury took from his person and possession $211.00 in cash. The punishment prescribed for robbery by assault was confinement for a term of not less than five years. To determine the grade of the offense and its concomitant punishment, then, these two offenses do not differ in all their elements.

The escape offense was first tried. Pecos County Sheriff C. S. Ten Eyck testified that in response to some character of noise or signal which indicated one or more of his prisoners wanted him upstairs, he opened the inner jail door going into the run around and upon entering through it saw that petitioner was pointing a rifle at him. Petitioner then came out of the southside run around and a confederate, Austell, came from the northside run around when, according to Sheriff Ten Eyck, the following occurred:

“. . . and Austell told me to give him the keys and he said or asked what keys unlocked this cell door and I told him. And he locked me up in the cell and Austell took my purse and they left.
Q: . . At a time that Mr. Fitch had this gun on you I assume that this purse was taken from you?
A: Yes, sir.
Q: And that purse contained at least $211.00 in cash?
A: Yes, sir.”

At once, then, the sheriff was the party assaulted in the robbery and the person against whom the firearm was used and exhibited in the commission of the offense of escape. As proven there was but a single transaction and all elements of both offenses occurred simultaneously. Use of the firearm in the jail break denounced by Article 353b, supra, is the assault proscribed by Article 1408, supra.

In finding that assault is not a necessary element of the offense of escape, the majority is adhering to the common law notion of the offense, as summarized in 30A C.J.S. Escape § 2, p. 876. Escape of that character is distinguishable, however, where the element of force on the part of the prisoner is present — thereby constituting the offense of prison breach or prison break. Id. at 877. At common law an escape by the prisoner was a misdemeanor whereas breach of prison was a felony, 30A C.J.S. Escape § 28, p. 910. Clearly, our Legislature has superseded the common law by statutory enactments in effect at the time of the instant jail break that enhanced the grade of the offense according to the force or other manner used in committing the offense. This record shows plainly that petitioner was tried, convicted and sentenced for an offense higher than mere escape — one in which assault by use of a firearm was the very element that upgraded the offense and its concomitant punishment. The common law of escape is irrelevant.

Convictions for both offenses are prohibited by the doctrine of carving and the double jeopardy clause. I dissent to denial of relief.

ROBERTS, J., joins.

      . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

      . In effect January 11, 1973, date of the jail break here, punishment prescribed for escape from jail with injury was not less than two nor more than five years; punishment prescribed for escape without use of a deadly weapon was confinement for not more than five years. Respectively, Article 353a and 353b, 1925 Penal Code.

      . In admonishing the accused with respect to the robbery indictment, the trial court stated the range of punishment to be not less than five nor more than twenty-five years; the judgment assessed a term of twenty-five years and the sentence imposed confinement for a term of not less than five nor more than twenty-five years.

      . “By the prisoner. The crime of escape has been defined as the voluntary departure of a person without force from the lawful custody of an officer or from any place where he is lawfully confined . . ”

      . Causing injury earned not less than two nor more than five years under Article 353a, supra, and it was proper to allege the assault and battery causing the injury to show the manner in which the escape was effectuated, Cline v. State, 463 S.W.2d 441, 444 (Tex.Cr.App.1971). As to V.T.C.A. Penal Code, Section 38.07, now in effect, see Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App.1976), alleging and proving effecting escape by use of a deadly weapon capable of causing death and serious bodily injury. These are jail break offenses rather than simple escape.

      . Had petitioner been tried before a jury for the similarly stated offense in the present penal code the charge of the court would have included the “jurisdictional element” of using or threatening to use a deadly weapon to effect his escape, Texas Criminal Pattern Jury Charges, p. 545, CPJC 38.07.