text:
    Ricky Eugene HALIBURTON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 55038, 55039.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 28, 1979.

      Dalton C. Gandy, court appointed, Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty., Joseph Drago, III, David B. Lobingier and Marvin Collins, Asst. Dist. Attys., Fort Worth, Robert Hut-tash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

A joint trial of two separate aggravated robbery indictments arising from the same criminal episode resulted in the conviction of appellant in both cases. The jury assessed punishment at thirty years confinement in each case. Appellant complains that the trial court improperly instructed the jury during the punishment phase that the sentences on both charges would run concurrently. V.T.C.A. Penal Code, Sec. 3.03. We affirm.

Following his convictions in the “guilt-innocence” phase of the trial, appellant elected to go the jury for punishment. While deliberating punishment, the jury sent a written request to the court:

“Will the two sentences run concurrently?”

The court responded in writing as follows:

“In answer to your note which has been identified as C-2, when an accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, as was done in this instance, sentence for each offense for which he has been found guilty shall run concurrently. The answer to your question is ‘yes.’ ”

Appellant objected to the submission of this additional charge to the jury. Appellant raises two grounds of error, both directed toward the supplemental instruction to the jury. Appellant argues that the supplemental charge contained information not proper for jury consideration and, therefore, consideration of concurrent sentencing in the punishment phase denied appellant of the benefit of V.T.C.A. Penal Code, Sec. 3.03. Appellant claims this harm resulted in an unfair trial with the jury returning a more severe penalty than they would have done without the instruction.

Both appellant and the State concede that the issue here presented is one of first impression.

Initially, we are concerned with appellant’s claim of harm arising from the supplemental instruction. Our examination of the record does not reflect any harm to appellant that might be traced to the additional charge. The record before us shows only that the jury was concerned with concurrent sentencing and requested information from the court. There is no showing that the jury’s consideration of the information supplied by the court worked to the detriment of appellant.

Further, we are unable to presume harm in this situation. Knowledge that the sentences would run concurrently is a two-edged sword. The information could have been used to increase the punishment or, just as easily, used to reduce the number of years to avoid excessive punishment. We cannot determine from the record which path the jury took and, with these alternatives, harm will not be presumed.

We now consider the propriety of jury consideration of concurrent sentencing in a fact situation where V.T.C.A. Penal Code, Sec. 3.03 is applicable with the focus being on whether such information is a proper matter for jury consideration. Appellant argues that concurrent sentencing is not a matter to be considered by a jury, comparing to situations involving parole and situations wherein punishment is absolutely fixed by law. If the consideration of concurrent sentencing is proper, then the jury, after retiring to deliberate and upon proper request, should be instructed. On the other hand, if this subject matter is not a proper consideration, then a supplemental instruction would be error. Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967).

Appellant argues that his situation presents for our consideration the same reasoning as do the cases involving jury consideration of parole or consideration of punishment absolutely fixed by law. We find the reasoning in neither applicable to the present case.

Parole is a matter within the exclusive jurisdiction of the Board of Pardons and Paroles and, as such, is not a matter of concern for a jury. Williams v. State, 511 S.W.2d 64 (Tex.Cr.App.1974). Parole then is an executive function, and the jury should not concern itself with executive decision-making. Likewise, punishment that is absolutely fixed by law removes from the jury any discretion or consideration in fixing punishment. In such cases, the legislature has fixed the penalty by law, taking the matter from the jury. Price v. State, 150 Tex.Cr.R. 161, 199 S.W.2d 168 (1946, On State’s Motion for Rehearing). We can find no support from the reasoning in these cases which applies to jury consideration of concurrent sentencing.

Appellant finally argues that the supplemental charge was improper because it denied him the benefit of V.T.C.A. Penal Code, Sec. 3.03. While appellant does not state the nature of the benefit he was denied, the conclusion drawn from appellant’s argument suggests that by electing joint trials an appellant is guaranteed a less severe penalty than if the causes were severed. At least, appellant suggests that Sec. 3.03 guarantees him that punishment will be assessed by a jury ignorant of the law. We do not feel that such an advantage is expressed nor may it be implied from the language of Sec. 3.03.

To determine the purpose of Sec. 3.03, we turn first to the practice commentary following that section. The language of that commentary indicates that Sec. 3.03 does no more than treat “multiple convictions resulting from prosecution of joined offenses as a single conviction for sentencing purposes.” V.T.C.A. Penal Code, Sec. 3.03, practice commentary at p. 77. The purpose of the statute appears to be convenience and efficiency, permitting one trial on the joined counts, and treating the separate offenses as one for sentencing purposes.

There is no guarantee in Sec. 3.03 that a joint trial of the offenses will result in a less severe penalty than separate trials of the same offense. We find the only benefit assured appellant by the language of Sec. 3.03 is concurrent sentencing. The inducement to appellant not to seek a severance of joined offenses is that his risk will be reduced (not eliminated) because the sentencing will be concurrent as opposed to consecutive. Texas Annotated Penal Statutes, Branch’s Third Edition, Explanatory Comment following Sec. 3.03 at p. 227.

The policy of the law should require juries to make informed and intelligent decisions based on every piece of information legally available. The effect of appellant’s argument would exclude information from the jury hoping that in their ignorance the jury would return a less severe punishment. Such a result is not supported by law or logic.

We hold that the trial court did not abuse its discretion by giving the additional charge to the jury, as such charge contained information which was a proper matter for jury consideration.

The judgment is affirmed.

PHILLIPS, Judge,

dissenting.

The majority concludes that it is appropriate for Texas juries to consider what the Legislature has decided on how defendants, who are tried for consolidated property offenses under V.T.C.A., Penal Code, Sections 3.01 and 3.02, will serve any penalty they assess. The majority is concerned that to rule otherwise would subject juries to deliberations permeated with ignorance and loathsome advantage for convicted criminals. It is not mentioned that the jury has the law on the range of applicable punishment, the evidence surrounding the commission of the offense, and any evidence introduced under the liberal provision of Article 37.07, Section 3(a), V.A.C.C.P. This latter provision permits the introduction of evidence concerning the defendant’s prior criminal record, general reputation, and character at the punishment stage. If Texas juries are operating with a shortage of relevant information, which I earnestly doubt, then it is for some reason other than their ignorance of Texas law relating to sentencing procedures.

The trial court’s supplemental instruction was a technically correct statement of the law. The question is whether the jury should be informed about it. The potential for harm to a convicted defendant from an instruction on V.T.C.A., Penal Code, Section 3.03 is so great that no such instruction should be provided. Rather, the response of the trial court found in Banks v. State, 503 S.W.2d 582, should be adopted as standard procedure.

The majority baldly claims the instruction is a double-edged sword, somehow beneficial to both the convicted defendant and the State.

. The information could have been used to increase the punishment, or just as easily, used to reduce the number of years to avoid excessive punishment. . . .
Infra at 728.

If anything fails, to find support in logic, the latter part of the quoted statement qualifies. The jury picks a number of years as punishment for each cause based on the evidence before it. Knowing that the numbers they choose merge into the greatest chosen, there is only an incentive to assure that the controlling number chosen is sufficient to punish the defendant for the multitude of offenses consolidated under Sections 3.01 and 3.02, supra. The fact that the defendant is a multiple offender is before them and is relevant to their determination. How the Legislature determined the assessed penalties should be served is of no concern to them and, again, such information operates only to harm the defendant. The instruction is clearly calculated to harm the accused.

Reliance on cases dealing with jury misconduct in discussing parole laws is misplaced. Such allegations are controlled by the law relating to motions for new trials and the need to prove up allegations advanced in such motions. See Article 40.03, V.A.C.C.P., and annotations. Here we have a charge to the jury, albeit supplemental, and controlled by Article 36.19, V.A.C.C.P. As stated above and notwithstanding unreasoned assertions to the contrary, the charge at issue here is clearly calculated to injure the rights of the appellant and is reversible. Further, the charge was not a “necessary” one authorized under Article 37.07, Section 3(b), V.A.C.C.P.

Finally, even if not clearly calculated to injure appellant, I believe under the case law relevant to this issue there is a sufficient basis for presuming harm. See Jewell v. State (Nos. 58,315-58,321, decided November 29, 1978, rehearing granted January 10, 1979); Marks v. State, 144 Tex.Cr.R. 509, 164 S.W.2d 690; Fletcher v. State, 137 Tex.Cr.R. 191, 128 S.W.2d 404; Christian v. State, 135 Tex.Cr.R. 42, 117 S.W.2d 1094; Sulak v. State, 118 Tex.Cr.R. 112, 40 S.W.2d 157; Billings v. State, 92 Tex.Cr.R. 628, 245 S.W. 236, 237; Thompson v. State, 91 Tex.Cr.R. 234, 237 S.W. 926, 928; Grider v. State, 82 Tex.Cr.R. 124, 198 S.W. 579; Bragg v. State, 73 Tex.Cr.R. 340, 166 S.W. 162; Robbins v. State, 57 Tex.Cr.R. 8, 121 S.W. 504. The appellant did not receive the minimum, thereby precluding a conclusion of harm. McCoy v. State, 122 Tex.Cr.R. 298, 54 S.W.2d 530; Ramirez v. State, 43 Tex.Cr.R. 455, 66 S.W. 1101; Brown v. State, 62 Tex.Cr.R. 592, 138 S.W. 604; Green v. State, 66 Tex.Cr.R. 446, 147 S.W. 593; Clark v. State, 78 S.W. 1078 (Tex.Cr.App.).

In conclusion, the jury should not be authorized to negate legislated procedural rules by being advised what the effect of the rules will be on their decisions. In return for permitting the State to consolidate offenses against property, the Legislature decided that a quid pro quo of concurrent sentences was in order. The jury still has the evidence of the accused being a multiple offender before it, as well as the other evidence mentioned, and is not wallowing in the darkness of ignorance without an instruction on the law of Section 3.03, supra.

Believing the instruction complained of was calculated to injure the appellant’s rights to fair determination of the appropriate penalty and, in the alternative, that harm is present, the judgment should be reversed.

      . In final argument, appellant requested the minimum punishment (five years) while the State asked for fifty years. The jury assessed thirty year terms.

      . See Alexander v. State, 482 S.W.2d 862 at 864 (Tex.Cr.App.1972) indicating that if sentences are concurrent, argument by the State that the sentences would run concurrently is harmless.

      . Several jurisdictions permit jury consideration of the laws surrounding length of time served or hold that such information is harmless if in the penalty stage. Feggins v. State, 359 N.E.2d 517 (S.Ct.Ind.1977); Armstrong v. State, 548 S.W.2d 334 (Tenn.Cr.App.1976); State v. Canfield, 26 Utah 2d 149, 486 P.2d 1034 (1971); Radcliff v. State, 490 P.2d 1398 (Okl.Cr.App.1971); Abernathy v. Commonwealth, 439 S.W.2d 949 (Ky.Ct.App.1969);
        State v. Shilow, 252 La. 1105, 215 So.2d 828 (1968); People v. DeBerry, 72 Ill.App.2d 279, 219 N.E.2d 701 (1966).

      . Jury consideration of Sec. 3.03 compares favorably with a court’s authority to consider unadjudicated offenses in the punishment phase. See V.T.C.A. Penal Code, Sec. 12.45.

      . Juries regularly consider probation conditions in appropriate cases. Gleffe v. State, 501 S.W.2d 672 (Tex.Cr.App.1973).


source: Caselaw Access Project

author: CORNELIUS, Judge.

license: Public Domain

text:
    Juan Jose HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 55810.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 28, 1979.
    R. 0. Burleson, Alpine, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ., and CORNELIUS, Commissioner.
   OPINION

CORNELIUS, Judge.

Appellant was convicted of murder and sentenced to life imprisonment.

The state’s evidence revealed that a robbery occurred at the Ramada Inn in Alpine on September 16, 1975. Robert Beard, the clerk on duty at the time, was shot in the head and killed. Palmira Hernandez, an accomplice to the crime, was granted immunity and testified for the state. She testified that she was a former employee of the motel and that Juan Hernandez, Alvaro Hernandez and she planned the robbery. In the planning stages, they obtained a butcher knife and a .22 caliber rifle. They agreed that Palmira would divert the Alpine Police by making a false report of an accident on a highway out of town, and they would “rob the motel” while the police were occupied in investigating the accident report. The report was made and the three then proceeded to the motel where Juan and Alvaro robbed the clerk, Juan wielding the knife and Alvaro the rifle. After the robbery, Alvaro told Juan and Palmira to leave. As they were running from the motel they heard Alvaro fire a shot, and then he exited the motel and fled the scene with them. Several days later Alvaro was arrested for another offense. The law enforcement officers became suspicious of Alvaro and Palmira, and after some questioning, Palmira agreed to testify for the state, and Juan and Alvaro were charged with Beard’s murder. Palmira turned over to the police officers the .22 caliber rifle which had been used in the murder and which had been hidden in some weeds beside her home, and a spent .22 caliber shell found beside the deceased’s body was identified as having been fired from that rifle. Alvaro was convicted in the District Court of Pecos County of the murder and sentenced to life imprisonment. The instant case was tried in Crane County on a change of venue. Neither appellant nor any other witness for the defense testified.

Appellant’s first ground of error is that the evidence is insufficient to corroborate the testimony of the acknowledged accomplice witness, Palmira Hernandez, and consequently the conviction cannot be sustained. We are compelled to agree. Article 38.14 of our Code of Criminal Procedure provides that a conviction cannot be had upon the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. The test to be used in determining if the accomplice testimony has been sufficiently corroborated is to eliminate the accomplice testimony from consideration, and if there is other incriminating evidence tending to connect the accused to the commission of the offense, there is sufficient corroboration. Rogers v. State, 461 S.W.2d 399 (Tex.Cr.App.1970); Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.1972); Dalrymple v. State, 366 S.W.2d 576 (Tex.Cr.App.1963). The record here is absolutely devoid of any such incriminating evidence. There was no testimony, save that of the accomplice, which placed appellant at or near the scene of the crime. None of the money taken in the robbery was found in his possession. He did not flee from Alpine, but was arrested there some two days after the murder. No fingerprints or other identifying clues were found at the scene which would connect appellant with the offense. Although the spent .22 caliber shell was identified as having been fired by the rifle Palmira testified was used in the robbery and murder, there is no evidence tending to connect appellant with the gun. It did not belong to him, it was not shown (except by the accomplice testimony) to have ever been in his possession, and it was not found on his premises or in any place with which he was in any way connected. Compare Deal v. State, 508 S.W.2d 355 (Tex.Cr.App.1974). Under these circumstances, the accomplice testimony is not sufficiently corroborated, and by the mandate of Article 38.14, V.A.C.C.P., the conviction must be reversed and dismissed. It is so ORDERED.


author: ROBERTS, Judge.

text:
    Donald Ray CUMBIE, Appellant, v. The STATE of Texas, Appellee.
    Nos. 56351-56354.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 28, 1979.

      Lawrence B. Mitchell, Michael D. Byck, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John G. Tatum, C. Wayne Huff and Les S. Eubanks, Jr., Asst. Dist. Attys., Dallas, Robert Hut-tash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

Four indictments charged the appellant with the aggravated robbery of a bartender and three patrons of a bar. With the consent of the parties, the four cases were tried together. A jury found the appellant guilty in each case. In cause 56,351, the jury found that the appellant had previously been finally convicted of two felony offenses, which fixed the punishment at confinement for life. In each of the other causes, the jury assessed the punishment at 75 years’ confinement. The appellant says that there are fundamental errors in each charge to the jury.

During recent years, we have reversed no small number of cases for fundamental error in the court’s charge. See Cleland v. State, 575 S.W.2d 296, 299 (Tex.Cr.App.1978) (dissenting opinion of Douglas, J.). We have held that, if that portion of the court’s charge to the jury which applies the law to the facts authorizes conviction on a theory not alleged in the indictment, the charge contains fundamental error (which requires reversal even though the error was not called to the trial court’s attention). Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977). With our en banc decision in Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979), this rule became settled. The recent opinions, and the older cases which they cited, reveal several kinds of such fundamental errors in the charge.

An omission from the court’s charge of an allegation in the indictment which is required to be proved has long been held to be fundamental error. See, e. g., Moore v. State, 84 Tex.Cr.R. 256, 206 S.W. 683 (1918) (failing to require the jury to find that stolen property was received from “some party to the grand jurors unknown”); Garza v. State, 162 Tex.Cr.R. 655, 288 S.W.2d 785 (1956) (authorizing conviction for possession of bottles without requiring that they have contained beer); Windham v. State, 530 S.W.2d 111 (Tex.Cr.App.1975) (authorizing conviction for aggravated assault without a finding that the knife was a deadly weapon); West v. State, 567 S.W.2d 515 (Tex.Cr.App.1978) (omitting culpable mental states).

A second kind of fundamental error occurs when the charge to the jury substitutes a theory of the offense completely different from the theory alleged in the indictment. See, e. g., Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 177 (1940) and Ross v. State, 487 S.W.2d 745 (Tex.Cr.App.1972) (indictment alleged breaking and entering by force, threats, and fraud; charge substituted entry with intent to commit theft); Peoples v. State, 548 S.W.2d 893 (Tex.Cr.App.1977) (indictment alleged forgery by passing; charge substituted forgery by making); Long v. State, 548 S.W.2d 897 (Tex.Cr.App.1977) (indictment alleged theft under Texas Penal Code, Section 31.-03(b)(1); charge substituted Section 31.-03(b)(2)); Shaw v. State, 557 S.W.2d 305 (Tex.Cr.App.1977) (indictment alleged burglary by entering, attempting theft, and committing theft; charge substituted entering with intent to commit theft).

A third kind of fundamental error is committed when the charge to the jury authorizes conviction on the theory alleged in the indictment and on one or more other theories not alleged in the indictment. Such a charge would permit conviction on proof different from (and sometimes less than) that required to prove the allegations in the indictment. Most of the recent cases have involved such charges that enlarge on the indictment.

This third type of error is illustrated by aggravated robbery cases in which the indictment alleged threatening and placing in fear, while the charge also authorized conviction for causing bodily injury. Edmond v. State, 566 S.W.2d 609 (Tex.Cr.App.1978); Jones v. State, 566 S.W.2d 939 (Tex.Cr.App.1978); Smith v. State, 570 S.W.2d 958 (Tex.Cr.App.1978); Brewer v. State, 572 S.W.2d 940 (Tex.Cr.App.1978); Armstead v. State, 573 S.W.2d 231 (Tex.Cr.App.1978); Donald v. State, 574 S.W.2d 119 (Tex.Cr.App.1978); Cullum v. State, 576 S.W.2d 87 (Tex.Cr.App.1979); Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979); Clements v. State, 576 S.W.2d 390 (Tex.Cr.App.1979); Aldaco v. State, 576 S.W.2d 641 (Tex.Cr.App.1979). Another group of cases involved the converse; the indictment alleged aggravated robbery by causing serious bodily injury, while the charge also authorized conviction for threatening and placing in fear. Moore v. State, 574 S.W.2d 553 (Tex.Cr.App.1978); Cleland v. State, 575 S.W.2d 296 (Tex.Cr.App.1978). Other charges allowed conviction on every theory of robbery and aggravated robbery found in Texas Penal Code Sections 29.02 and 29.03, regardless of the theory (or theories) alleged in the indictment. Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Bridges v. State, 574 S.W.2d 143 (Tex.Cr.App.1978); McGee v. State, 575 S.W.2d 563 (Tex.Cr.App.1979); Todd v. State, 576 S.W.2d 636 (Tex.Cr.App.1979); Hill v. State, 576 S.W.2d 642 (Tex.Cr.App.1979); Williams v. State, 577 S.W.2d 241 (Tex.Cr.App.1979). In another case, the indictment alleged robbery by placing in fear, while the charge also authorized conviction for threatening. Lee v. State, 577 S.W.2d 736 (Tex.Cr.App.1979).

This third kind of fundamental error, the charge that enlarges on the indictment, is not limited to robbery cases. We have reversed voluntary manslaughter convictions in which the indictment alleged intentionally and knowingly causing death, while the charge also authorized conviction for intending to cause serious bodily injury and committing an act clearly dangerous to human life that causes death. See Garcia v. State, 574 S.W.2d 133 (Tex.Cr.App.1978); Fella v. State, 573 S.W.2d 548 (Tex.Cr.App.1978). We have reversed a conviction for injury to a child in which the indictment alleged causing serious bodily injury, while the charge also authorized conviction for causing serious physical deficiency or impairment or deformity. Morter v. State, 551 S.W.2d 715 (Tex.Cr.App.1977). We have reversed a prostitution conviction in which the information alleged a specific kind of sexual conduct (sexual intercourse), while the charge also authorized conviction for any other kind of sexual conduct. Thompson v. State, 577 S.W.2d 497 (Tex.Cr.App.1979). We have reversed a conviction for unlawful possession of firearm by felon in which the indictment alleged a prior conviction for robbery, while the charge also authorized conviction if the defendant had a prior conviction for assault with intent to commit robbery. Smith v. State, 574 S.W.2d 551 (Tex.Cr.App.1978).

A fourth kind of fundamental error is committed when the charge authorizes conviction for conduct which is not an offense, as well as for conduct which is an offense. See Jackson v. State, 576 S.W.2d 88 (Tex.Cr.App.1979) (authorizing an aggravated robbery conviction for recklessly threatening and placing in fear, which is not an offense under Texas Penal Code Section 29.02(a)(2), and which was not alleged in the indictment). It will be noted that this kind of fundamental error differs from the other three, in that the charge is defective not only because it enlarges on the indictment, but also because it authorizes conviction for non-criminal conduct. See Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App.1976). Presumably such a charge would be fundamentally erroneous even if the same theory were alleged in the indictment.

With the perspective of the foregoing collection of cases, we approach the appellant’s first ground of error. The indictments alleged that the appellant threatened and placed the complainants in fear of imminent bodily injury. The court’s charges authorized conviction if the jury found that the appellant threatened and placed the complainants in fear of imminent bodily injury or death. The appellant argues that the addition of the words “or death” is an enlargement on the indictment which constitutes fundamental error of the third kind discussed above. We cannot agree.

The evil of the charge that enlarges on the indictment is that it authorizes conviction on proof different from (and sometimes less than) that required to prove the allegations in the indictment. That evil is not present in this case, because proof of threatening and placing in fear of death is not different from (or less than) proof of threatening and placing in fear of bodily injury. “Bodily injury” means physical pain, illness, or any impairment of physical condition. V.A.P.C., Section 1.07(a)(7). Death necessarily involves impairment of physical condition (if not pain and illness), so “death” necessarily includes “bodily injury,” Therefore every “threatening and placing in fear of death” necessarily includes “threatening and placing in fear of bodily injury”; proof of the former is not different from (or less than) proof of the latter. The evil presented by the charge that enlarges on the indictment is not present in this case, nor do we perceive any of the other kinds of fundamental error discussed above. The first ground of error is overruled.

The appellant’s other ground of error sets out another claim that fundamental error was committed in the charges. Each indictment alleged that the appellant acted with the intent to obtain and maintain control of the property of the complainant, the said property being (in the respective indictments) “Current Money of the United States of America,” “Two Hundred Dollars ($200.00) current money of the United States of America,” “one billfold,” and “Twenty-five Dollars ($25.00) current money of the United States of America.” Each charge describes the property taken only as “the property as alleged in the indictment.” The appellant claims that this phrase is only an abstract statement of law which fails to apply the law to the facts, citing Perez v. State, 537 S.W.2d 455 (Tex.Cr.App.1976), and Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975). Inspection of those cases will reveal that they have nothing in common with the problem under consideration. These charges do apply the law to the facts. The question is whether the court’s charge in a robbery case contains fundamental error when it describes property by reference to the indictment.

There is some authority for the proposition that a charge may describe property by reference to the indictment. Lindsey v. State, 108 Tex.Cr.R. 187, 299 S.W. 399 (1927). Because of some differences in facts and procedure, the Lindsey case is not controlling. Rather, we would note that the gist of robbery is not theft of property; it is that bodily injury or death is threatened or caused, with intent to take property. That the theft is not accomplished is not material, nor is the value of the property. See Watts v. State, 516 S.W.2d 414 (Tex.Cr.App.1976). The gist of robbery being different from that of theft, the description of the property in the court’s charge is not so crucial. Cf. Hutson v. State, 154 Tex.Cr.R. 380, 227 S.W.2d 813 (1950). The practice, in the court’s charge on robbery, of describing the property by reference to the indictment seems to be neither new nor limited to the court which tried these cases. See Garcia v. State, 154 Tex.Cr.R. 451, 227 S.W.2d 811 (1950).

This is not to say that the appellant would not have been entitled to a more detailed description of the property had he presented his objection or special requested charge to the trial court. But we note that the reference to “the property as alleged in the indictment” prevented that kind of fundamental error that is committed when the court’s charge enlarges on the indictment. Again, we do not perceive any of the other kinds of fundamental error discussed above. The second ground of error is overruled.

Finding no fundamental error, we affirm the judgment.

      . The following collection of cases does not purport to be complete.

      . Two companion cases were reversed for the same reason. West v. State, 572 S.W.2d 712 (Tex.Cr.App.1978); Thompson v. State, 574 S.W.2d 103 (Tex.Cr.App.1978).


author: TOM G. DAVIS, Judge.

text:
    Frank GONZALES, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 56729.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 28, 1979.
    David Diaz, Corpus Christi, court appointed, for appellant.
    William B. Mobley, Jr., Dist. Atty. and Eric G. Brown, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for the offense of aggravated robbery. V.T.C.A. Penal Code, Sec. 29.03. The appellant pled true to the second and third paragraphs of the indictment alleging two prior felony convictions. The court then assessed punishment at life. V.T.C.A.Penal Code, Sec. 12.42(d).

The appellant in his brief raises nine grounds of error. The State has filed an able brief responding to each of the contentions raised by the appellant and in addition has called our attention to a possible fundamental error in the charge.

The indictment in the instant case alleges in pertinent part that the appellant:

“while in the course of committing theft and with intent to obtain and maintain control of property of Delfino Motta, to wit: United States money, did then and there by using and exhibiting a deadly weapon, to wit: a knife that in the manner of its use and intended use was capable of causing death and serious bodily injury, intentionally and knowingly threaten Delfino Motta with imminent bodily injury and death and intentionally and knowingly place Delfino Motta in fear of imminent bodily injury and death. . . ."

In Paragraph V of the charge, the jury was instructed as follows:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 22nd day of December, 1976, in Nue-ces County, Texas, the Defendant, Frank Gonzales, Jr., while in the course of committing theft and with intent to obtain and maintain control of property of Delfi-no Motta, to wit: United States money, did then and there by using and exhibiting a deadly weapon, to wit: a knife that in the manner of its use and intended use was capable of causing death and serious bodily injury, intentionally and knowingly threaten Delfino Motta with imminent bodily injury and death and intentionally and knowingly place Delfino Motta in fear of imminent bodily injury and death, or if you find from the evidence beyond a reasonable doubt that while in the course of committing theft and with intent to obtain and maintain control of property of Delfino Motta, to wit: United States money, the Defendant caused serious bodily injury to Delfino Motta, then you will find the Defendant guilty of aggravated robbery as charged in the indictment.” [Emphasis supplied.]

The instruction clearly authorizes a conviction on the basis of a theory not charged in the indictment. There was no objection to this charge at the time of trial. The State in its brief urges that under Williams v. State, Tex.Cr.App., 535 S.W.2d 352, the charge is not fundamentally defective. This Court in numerous recent cases held that a charge which authorizes a conviction on a theory not alleged in the indictment is fundamentally defective and a reversal is mandated on direct appeal. See e. g., Gooden v. State, Tex.Cr.App., 576 S.W.2d 382; Robinson v. State, Tex.Cr.App., 553 S.W.2d 371; Davis v. State, Tex.Cr.App., 557 S.W.2d 303; Edmond v. State, Tex.Cr.App., 566 S.W.2d 609; Jones v. State, Tex.Cr.App., 566 S.W.2d 939; Smith v. State, Tex.Cr.App., 570 S.W.2d 958; Brewer v. State, Tex.Cr.App., 572 S.W.2d 940; Armstead v. State, Tex.Cr.App., 573 S.W.2d 231; Johnson v. State, Tex.Cr.App., 573 S.W.2d 778; Cleland v. State, Tex.Cr.App., 575 S.W.2d 296; Fella v. State, Tex.Cr.App., 573 S.W.2d 548; Bridges v. State, Tex.Cr.App., 574 S.W.2d 143; Donald v. State, Tex.Cr. App., 574 S.W.2d 119; Moore v. State, Tex.Cr.App., 574 S.W.2d 553.

The holdings in the foregoing cases require reversal of this cause.

The judgment is reversed and the cause is remanded.


author: DOUGLAS, Judge.

text:
    Michael Wayne LANGFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 56977.
    Court of Criminal Appeals of Texas, En Banc.
    March 28, 1979.

      M. Bruce Fort, Texas City, for appellant.
    James F. Hury, Jr., Dist. Atty., and Michael P. Heiskell, Asst. Dist. Atty., Galveston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON MOTION FOR REHEARING

DOUGLAS, Judge.

Leave to file the State’s motion for rehearing was granted by the Court en banc to review the opinion by the panel which held that appellant was entrapped as a matter of law. One judge concurred in the result and one judge dissented. The local prosecutor filed a late motion for rehearing. This Court may grant a rehearing if a motion is filed within fifteen days after the opinion has been handed down. Rule 12c, Rules of the Court of Criminal Appeals, January 1,1978. The Court, within its discretion, may grant a rehearing at any time during the term of the original opinion.

In the present case the term of the court had expired and the judgment became final before the motion for leave to file for rehearing was filed. Because of this, the reversal of the order revoking probation will not be disturbed. However, it should be noted that the Court as a whole will not be bound by the holding of one judge of the panel and one judge concurring in the result.

The one judge opinion on original submission did not set out the contradictory as well as the agreed testimony.

Officer Frank Fleming asked the appellant to assist him in catching burglars. One of the conditions was that appellant had to consult with Fleming first, so that the participants could be caught during a burglary. Fleming did not tell appellant to commit a burglary in another county. Appellant did not inform Fleming of the burglary beforehand. Appellant testified that Officer Fleming told him some time prior to the burglary “to cool it, to lay off” for a while. Appellant admitted taking part in the burglary. After he was arrested he was warned by an officer and a magistrate of his rights. He testified that the officer promised him nothing and that he confessed to taking part in the burglary.

Appellant did not report to Officer Fleming between the time of the burglary until he learned that a warrant had issued for his arrest some two days later. Appellant did not tell the officer who took the confession or the magistrate that he was authorized by Fleming to take part in the burglary.

The trial judge had the right to believe appellant’s testimony that Officer Fleming had told him “to cool it and to lay off.” And even if the judge believed appellant’s explanation that he participated in the burglary to keep down suspicion of his involvement to help in arresting burglars, that would be insufficient to show that the officer entrapped him into committing the burglary in Brazoria County out of Officer Fleming’s bailiwick which was in Galveston County.

In any event, all of the evidence shows that appellant did not get in touch with Officer Fleming to inform him before the burglary was committed, and the officer had told him to “lay off.” The undisputed testimony shows that appellant was not entrapped as a matter of fact or law in committing the burglary which was used to revoke probation.

In addition to this, the trial court specifically stated that he did not believe appellant’s testimony. The credibility of the witness was to be judged by the court hearing the motion to revoke probation and not this Court. The trial court expressed concern of appellant’s admission that he was using narcotics in violation of the law which was a violation of his probation.

So that trial judges and attorneys will not be misled, the opinion of the panel on original submission is overruled even though this does not affect the outcome of this case.

The State’s motion for rehearing is overruled.

ROBERTS, ODOM, PHILLIPS and CLINTON, JJ., concur in the result.


author: WILLIAM J. CORNELIUS, Commissioner.

text:
    Alan Eugene JOINER, Appellant, v. The STATE of Texas, Appellee.
    No. 57209.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 28, 1979.

      H. Thomas Hirsch, Odessa, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ., and CORNELIUS, Commissioner.
   OPINION

WILLIAM J. CORNELIUS, Commissioner.

Appellant was convicted of the offense of delivery of heroin. Punishment was set by the jury at sixty years’ confinement.

The sufficiency of the evidence is not challenged. Appellant’s only ground of error contends that the trial court erred in overruling his plea in bar of this prosecution. The plea in bar was based upon appellant’s allegations that a plea bargain he had made with the prosecutor’s office concerning another offense precluded any prosecution for this offense.

Appellant pleaded guilty on July 3, 1976, in Cause No. 8388 in the District Court of Ector County, Texas, to the offense of possession of heroin. Pursuant to a plea bargaining agreement, the charge had been reduced from delivery of heroin to possession of heroin, and appellant was assessed a $6,000.00 fine and ten years probation. Both appellant and the prosecutor’s office agree that as a part of the bargain all charges then “pending” against appellant were to be dropped. The prosecutors checked the records of their office and determined that no other charge was then pending. Some three months later, however, in October'of 1976, a narcotics agent who had been working undercover in Ector County filed two charges against appellant for delivery of heroin offenses which had occurred in May of 1976, prior to the guilty plea arising from the bargaining arrangement. Appellant contends that his plea in July of 1976 was intended by all parties to “clear his record” up to that time, and that it was a violation of the state’s agreement for it to try him for this offense which occurred prior to the plea bargain. The state argues that the bargain was only to clear appellant’s record of all pending charges, and that the agreement cannot and should not be construed to have precluded prosecution for unknown offenses which appellant may have committed prior to the time of the plea.

The trial court conducted an extensive hearing on the circumstances and nature of the plea bargain. Both appellant and the attorney who represented him at the guilty plea testified, as well as several representatives of the prosecutor’s office. The prosecutors emphatically denied that there was any misrepresentation of the bargain, or that at the time of making the plea agreement they had any knowledge that appellant had committed other offenses which had not been filed. They testified that they were not aware of the undercover agent’s presence in the county at that time, and said that it was not unusual for such an undercover agent to keep all of his cases secret, even from the prosecutors, until he finished his work in a given area and then to file all of the cases covering the entire period.

When a plea rests in any significant degree on a promise or an agreement of the prosecutor, so that it can be said to be a part of the inducement, the promise must be fulfilled. Relief for the failure to keep such a bargain is either specific enforcement of the agreement or withdrawal of the plea, depending upon the requirements of the circumstances in each case. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Although appellant was properly admonished by the trial judge who took the guilty plea, and represented to him that he had been given no promise or other inducement for making the plea, formalistic recitations cannot prevent the accused from complaining if the prosecutor later breaches the agreement which induced the plea. Gallegos v. United States, 466 F.2d 740 (5th Cir. 1972).

But the evidence here does not demonstrate that the agreement was breached. Indeed, the evidence sustains the trial court’s finding that the bargain was kept. The agreement was to drop all pending charges. The prosecutors investigated the pending charges and found only the delivery of heroin charge involved in the bargain, and it was reduced to possession of heroin, for which appellant received probation and a fine. Surely it was not the intent that appellant be given a carte blanche release from any and all other offenses which he may have previously committed, but which were then unknown to the prosecutors. Even appellant does not contend for such an unreasonable interpretation of the agreement; rather, he bases his right to relief on the claim that the prosecutors knew or should have known that he had other drug related offenses, even though they were not then officially filed, and that it was his understanding of the plea bargain arrangement that it would clear him of all such offenses. The evidence certainly does not compel such a conclusion, but in fact is ample to support the trial judge’s conclusion to the contrary. That being the case, the action of the trial court in overruling the plea in bar was not error.

The judgment is affirmed.


author: DALLY, Judge.

text:
    Henry Martinez PORTER, Appellant, v. The STATE of Texas, Appellee.
    No. 57553.
    Court of Criminal Appeals of Texas, En Banc.
    March 28, 1979.

      Ronald W. Aultman, Jerry J. Loftin and John M. Anderson, Fort Worth, All court appointed, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, Joe Shannon, Jr. and Ronald G. Knight, Asst. Dist. Attys., Fort Worth, Robert Hut-tash, State’s Atty., Austin, for the State.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of capital murder. The punishment was assessed at death.

Appellant contends that the trial court erred in permitting, over objection, at the punishment phase of the trial, the introduction of letters, reports, and documents from a federal parole officer’s file pertaining to appellant’s supervision and progress while on federal parole. We agree and reverse the judgment.

Appellant was convicted for the murder of Fort Worth police officer Henry P. Mail-loux. Appellant fatally shot Mailloux on the morning of November 29, 1975, after Mailloux stopped him for investigation of three armed robberies. The State introduced evidence identifying appellant as the perpetrator of armed robberies having occurred on November 18, 24, and 28,1975, in Fort Worth. In addition, there was evidence that appellant had three prior felony convictions and therefore faced a possible life sentence as an habitual criminal should he be convicted again.

Appellant, who was shot during an exchange of gunfire with Mailloux, testified that he pulled his gun only after Mailloux shot him without provocation, and that the gun accidentally discharged during a subsequent struggle. Appellant fled from the scene following the shooting, and was arrested in San Antonio on December 1.

At the punishment phase of the trial, the State called J. M. McIntyre, a United States probation-parole officer for the Western District of Texas. McIntyre testified that, though he did not know appellant, his office in San Antonio had supervised appellant while he was on parole. McIntyre further testified that a record had been kept of his office’s contacts with appellant. Thereafter, the prosecutor attempted to elicit testimony from the witness, based on the records, as to the parole office’s first contact with appellant. The court sustained appellant’s objection on the grounds of hearsay and that the witness was “not the person in charge.”

The prosecutor then asked the witness to remove from the file he had brought with him and clip together “certain records” which “pertain to contacts with this man” had by the parole office. These selected materials were marked as State’s Exhibit No. 53 and a photocopy of the exhibit was offered in evidence. Appellant objected to the introduction of the exhibit on several grounds, among them that the proper predicate had not been shown for the admissibility of the exhibit, the exhibit was “hearsay upon hearsay letters to individuals — and letters as copies in the file,” and the exhibit denied the rights of cross-examination and confrontation. This objection was sustained.

The prosecutor thereafter questioned McIntyre regarding the dates and reasons for the various contacts between appellant and his office. Appellant declined to cross-examine McIntyre, and the witness was excused.

Following a recess, McIntyre was recalled by the State. The materials he had removed from his file, now marked as State’s Exhibit No. 54, were again offered in evidence. This time, the materials were admitted, over appellant’s objection that he was being denied his right of confrontation. The prosecutor then had McIntyre identify each of the documents in the exhibit and read to the jury certain passages therefrom. During this testimony, appellant repeatedly objected on the grounds of hearsay and denial of confrontation.

State’s Exhibit No. 54 consists of five documents. The first is a copy of a letter dated February 20, 1973, from Paul F. Cromwell, Jr., a United States probation officer in San Antonio, to Harry Ebber-hardt, a counselor at a San Antonio drug abuse treatment center known as the Patrician Movement. Among other things, this letter refers to appellant’s “aggressive nature,” and quotes unnamed psychologists for the proposition that appellant has “a psychopathic personality” and “indications of paranoid schizophrenic behavior.”

The second document is a copy of a letter dated September 26, 1973, from Robert E. Adamina, Jr., a United States probation officer in San Antonio, to Steve D. Johnston, Parole Executive, United States Board of Parole in Washington, D.C. This letter details appellant’s performance while under the supervision of the San Antonio office, including his drug usage and inability to successfully participate in various rehabilitation programs. The writer of the letter concludes that “[tjhese events would indicate this individual’s inability and/or desire to maintain a drug free status in the community and abide by the terms of his parole . ” and recommends that appellant’s federal parole be revoked.

The third document is a copy of a warrant application dated October 23,1973, recommending that appellant’s federal parole be revoked due to his admitted use of narcotics and failure to participate in treatment programs. The warrant application is signed by Steve D. Johnston, to whom the letter of September 26, referred to above, is addressed.

The fourth document is a copy of another letter to Steve D. Johnston. This letter is dated January 28, 1974, and is from Harvey H. Whitehill, a United States probation officer in San Antonio. In this letter, White-hill refers to a conversation he had with appellant, during which appellant admitted being addicted to heroin.

The fifth document is a copy of a “Terminal Report” from Kerper House in San Antonio, signed by Bonnie J. Cromwell, Director. Kerper House is apparently another drug addiction treatment facility. A portion of this report reads as follows:

“Program Progress:
“Mr. Porter resided at the Kerper House for less than a week. He fixed with heroin three days after his arrival. He was a disruptive figure to the program and demonstrated ‘paranoia’ at a group counseling session. Due to his drug addiction and recidivist practices, progress was not made toward the accomplishment of any of the goals set for Mr. Porter.
“Resocialization:
“Mr. Porter’s transition back into the community was not a success . . He expressed a complete feeling of ‘helplessness’ in regards to his drug usage. He plead [sic] for ‘another chance’ and seems to want badly to go straight; yet at the same time admitted to ‘uncontrollable’ behavior.
“Prognosis:
“Based on Mr. Porter’s participation in our program and knowledge of his previous arrests and penitentiary record, it is felt by our Staff that his future looks grim . . . His employment, educational, social, and familial history is extremely poor and this is apparently due to his serious narcotic addiction. He demonstrates a number of serious mental and emotional handicaps. Rehabilitative rating is very poor.”.

On cross-examination, defense counsel elicited from the witness that his access to the writings in issue was equal to that of twelve other parole officers, eight secretaries, the Deputy Director of the San Antonio office, and the “Chief” of the Western District Parole Department in El Paso. When asked whether he personally kept the files, the witness stated that the “probation department is the custodian of records for the United States Courts as well as the Board of Paroles involving an individual under the supervision of either . . . ”

The right to cross-examine witnesses is implicit within the right to confrontation provided by the Sixth Amendment to the Constitution of the United States as applied through the Fourteenth Amendment. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1967); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). The right to confront and cross-examine witnesses has also been held to be essential to due process and a fair trial within the provisions of the Fourteenth Amendment to the Constitution of the United States. E. g., In Re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948) and Chambers v. Mississippi, supra.

However, the rights of confrontation and cross-examination are not absolute. Chambers v. Mississippi, supra; Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Dutton v. Evans, supra; California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). Confrontation and cross-examination are not essential where the evidence bears the indicia of reliability sufficient to insure the integrity of the fact finding process. Dutton v. Evans, supra; Mancusi v. Stubbs, supra; Kay v. United States, 255 F.2d 476 (4th Cir. 1958). Cf. Chambers v. Mississippi, supra; California v. Green, supra; Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969).

If the rights of confrontation and cross-examination were absolute, none of the exceptions to the hearsay rule would apply in criminal cases. In almost every criminal case, evidence is admitted under one of the exceptions to the hearsay rule. Official written instruments are admissible as one of the well recognized exceptions. They are admissible in this state under the provisions of Article 3731a, V.A.C.S., which reads, in pertinent part:

“Sec. 2. Any written instrument which is permitted or required by law to be made, filed, kept or recorded (including but not limited to certificate, written statement, contract, deed, conveyance, lease, concession, covenant, grant, record, return, report or recorded event) by an officer ... of the United States . or of any governmental subdivision of any of the foregoing, or by his deputy or employee ... in the performance of the functions of his office, shall so far as relevant, be admitted in the courts of this State as evidence of the matter stated therein . . . ”

The State contends that the five documents in question are official written instruments, and were properly admitted under this statute.

Article 3731a, supra, is applicable in criminal cases. Phillips v. State, 538 S.W.2d 116 (Tex.Cr.App.1976); Trevino v. State, 464 S.W.2d 859 (Tex.Cr.App.1971); Spencer v. State, 164 Tex.Cr.R. 464, 300 S.W.2d 950 (1957); Fite v. State, 158 Tex.Cr.R. 611, 259 S.W.2d 198 (1953). However, in some circumstances, evidence within the ambit of a recognized exception to the hearsay rule is not admissible if it does not have the indicia of reliability sufficient to insure the integrity of the fact finding process commensurate with the constitutional rights of confrontation and cross-examination. Chambers v. Mississippi, supra; Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Berger v. California, supra; McDaniel v. United States, 343 F.2d 785 (5th Cir.1965); United States v. Lipscomb, 435 F.2d 795 (5th Cir. 1970); Phillips v. Neil, 452 F.2d 337 (6th Cir. 1971).

This Court has previously recognized that evidence within the scope of the Business Records Act, Article 3737e, V.A.C.S., is not admissible if it does not have sufficient indicia of reliability. Coulter v. State, 494 S.W.2d 876 (Tex.Cr.App.1973); Battee v. State, 543 S.W.2d 91 (Tex.Cr.App.1976); Sisson v. State, 561 S.W.2d 197 (Tex.Cr.App.1978). The same rule is applicable to official records sought to be admitted under Article 3731a, supra. It must be determined in each instance whether the particular record is of such trustworthiness as to guarantee the same protection provided by the constitutional rights of confrontation and cross-examination. The particular record and its relationship to the particular case in which it is offered are a part of the circumstances to be considered in determining whether the record has the indispensable fundamental trustworthiness necessary for its admission into evidence. See e. g., United States v. Lipscomb, supra; McDaniel v. United States, supra; People v. Aguilar, 16 Cal.App.3d 1001, 94 Cal.Rptr. 492 (1971); Johnson v. State, 253 A.2d 206 (Del.1969); People v. Crant, 42 Misc.2d 350, 248 N.Y.S.2d 310 (1964).

The documents admitted in this ease are letters, or copies of letters, which were kept or received in the District Parole Office in San Antonio. These letters contain hearsay upon hearsay, as well as opinions regarding appellant’s mental and physical condition and his amenability to rehabilitation. The sources of these opinions are in most cases unnamed, and in no ease are the authors or the unnamed sources shown to be competent to make the statements attributed to them. It defies reason to suggest that these letters, merely because they were collected in a file in a government office, have the indicia of reliability sufficient to insure the integrity of the fact finding process commensurate with the constitutional rights of confrontation and cross-examination. See Estes v. State, 162 Tex.Cr.R. 122, 283 S.W.2d 52 (1955); Hartman v. Harder, 322 S.W.2d 555 (Tex.Civ.App.—Amarillo 1959, no writ).

Texas Dept. of Public Safety v. Nesmith, 559 S.W.2d 443 (Tex.Civ.App.—Corpus Christi 1977, no writ), was a driver’s license suspension case. The Department sought to prove the appellee’s responsibility for the accident in question by introducing certain departmental records. The words of the Court in Nesmith are fully applicable to the instant case:

“Tex.Rev.Civ.Stat.Ann. art. 3731a (Supp.1977), which permits the introduction of official public records or certified copies thereof in evidence, is an exception to the hearsay rule. See 24 Tex.Jur.2d, Evidence, Sec. 578. However, the contents of such records, when such records are offered in evidence, are subject to the same rules of evidence respecting relevancy, competency, or materiality as any other evidence. Smith v. Riviere, 248 S.W.2d 526 (Tex.Civ.App.—Texarkana 1951, no writ). Therefore, even though the official public records or certified copies thereof are admissible in evidence, that does not mean that ex parte statements, hearsay, conclusions and opinions contained therein are admissible. Furthermore, the admissibility of the records does not authorize the consideration of any hearsay based on hearsay, or of any conclusion therein which is not shown to have been made by an official or employee of the Department who had personal knowledge of the facts upon which the conclusion is based. Smith v. Riviere, supra; Texon Drilling Co. v. Elliff, 216 S.W.2d 824 (Tex.Civ.App.—San Antonio 1948, writ ref’d n. r. e.).”

Not only did the admission of the writings in question deny appellant his rights of confrontation and cross-examination, it is by no means clear that the writings are official written instruments within the meaning of Article 3731a, supra. The special trustworthiness of official writings is found in the declarant’s official duty and the high probability that the duty to make an accurate report has been performed. McCormick, Evidence, Sec. 315 (2d ed. 1972). This is implicit in the examples of official writings set out in Sec. 2 of the statute: certificate, written statement, contract, deed, conveyance, lease, concession, covenant, grant, record, return, report, or recorded event. From this it can be concluded that the act contemplates admission of writings which are kept or made by an officer of the United States, or an officer of a governmental subdivision of the United States, in the systematic administration of his office.

Clearly, the recordation pursuant to law of official acts, events, or matters relating to the operations of a federal parole office or to particular parolees, about which there can be no reasonable dispute, is done in the performance of the functions of a government officer’s official duties. Cf. Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943); Loper v. Andrews, 404 S.W.2d 300 (Tex.Sup.1966). But the fact that a district parole office makes a practice of maintaining in a file any opinion or conclusion concerning a parolee within the office’s charge, regardless of its source, does not necessarily put those statements in the class of records which are kept in the performance of the functions of a government officer’s duties. To hold that such informal records are included within Article 3731a, supra, would pervert a rule “designed to facilitate admission of records which experience has shown to be quite trustworthy.” Palmer v. Hoffman, supra, 318 U.S. at 113, 63 S.Ct. at 480.

It should also be noted that two of the writings introduced by the State, the letter dated September 26, 1973, and the warrant application dated October 23, 1973, were prepared with the specific view toward revoking appellant’s federal parole, a quasi-criminal proceeding. Such utility as these writings possess relates primarily to such proceeding, and only incidentally to the systematic performance of the functions of the federal parole office. See Palmer v. Hoffman, supra; United States v. Ware, 247 F.2d 698 (7th Cir. 1957); Coulter v. State, supra.

In its brief, the State argues that the trial court had discretion to admit the writings in question under Article 37.071(a), V.A.C.C.P., which states:

“Upon a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.” (Emphasis added.)

It is true that the trial court at the punishment phase of a capital murder trial has wide discretion in admitting or excluding evidence. See Hammett v. State, - S.W.2d - (Tex.Cr.App. 1979); Wilder and Armour v. State, Tex.Cr.App. (No. 57,848, decided 1/31/79); Hovila v. State, 562 S.W.2d 243 (Tex.Cr.App.1978); Brown v. State, 554 S.W.2d 677 (Tex.Cr.App.1977); Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App. 1975), affirmed, Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). However, this discretion extends only to the question of the relevance of the facts sought to be proved. Article 37.071(a), supra, does not alter the rules of evidence insofar as the manner of proof is concerned. While the facts contained in the documents in question may have been relevant to punishment, the manner in which the State sought to prove those facts denied appellant his constitutional rights of confrontation and cross-examination.

The judgment is reversed and the cause remanded.


text:
    Willie Frank JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 57682.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 28, 1979.
    James P. Hopkins, Dallas, for appellant.
    Jerry Spencer Davis, Dist. Atty., Green-ville, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

DALLY, Judge.

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

The indictment alleges that the appellant “. using and exhibiting a deadly weapon, namely a pistol, knowingly and intentionally threatened] and place[d] Mrs. Kenneth Laucks in fear of imminent bodily injury and death . . . ”

However, in addition to the means of committing robbery as it is alleged in the indictment, the court’s charge authorized the appellant’s conviction if the jury found the appellant “. . . recklessly caused bodily injury to the owner .” and “. . caused serious bodily injury to Mrs. Kenneth Laucks . . . ”

The indictment only alleges the offense under the provisions of V.T.C.A. Penal Code Sections 29.02(a)(2) and 29.03(a)(2), but the court’s charge in addition to allowing a conviction under these provisions instructs the jury that it may find the appellant guilty under provisions of V.T.C.A. Penal Code, Sections 29.02(a)(1) and 29.03(a)(1).

A charge such as that submitted to the jury in this case has been held to be reversible error by the majority of this Court even though the appellant made no trial objections to the charge. See, e. g., Gooden v. State, Tex.Cr.App., 576 S.W.2d 382 (1979) (Opinion on Appellant’s Motion for Rehearing); Brewer v. State, 572 S.W.2d 940 (Tex.Cr.App.1978); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977).

The author of this opinion and three other judges of this Court believe that in the absence of a trial objection this Court should examine the record to determine whether appellant was harmed by the erroneous charge and affirm the judgment if the appellant was not harmed. See Gooden v. State, supra, (Concurring Opinion on Motion for Rehearing and footnote 1 on the Motion for Rehearing), and see Williams v. State, 535 S.W.2d 352 (Tex.Cr.App.1976) and the recent cases Williams v. State, Tex.Cr.App., 577 S.W.2d 241 (1979); Hill v. State, Tex.Cr.App., 576 S.W.2d 642 (1979); Clements v. State, Tex.Cr.App., 576 S.W.2d 390 (1979). However, the law of this State as expressed by the majority is to the contrary.

The judgment is reversed and the cause remanded.

      . V.T.C.A. Penal Code, Sections 29.02 and 29.-03 read as follows:
      “Section 29.02 Robbery
      “(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
      “(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
      “(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
      “(b) An offense under this section is a felony of the second degree.
      “Section 29.03 Aggravated Robbery
      “(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:
      “(1) causes serious bodily injury to another or;
      “(2) uses or exhibits a deadly weapon.
      “(b) An offense under this section is a felony of the first degree.”

      . Many cases such as this have recently come before this Court. It is difficult to understand why so many courts are submitting charges to juries which allow the juries to convict defendants for offenses not alleged in the indictment. It would seem much easier when submitting the charge to the jury to correctly charge the jury by following the allegations of the indictment. Also, it would seem that prosecutors would advise trial judges that a charge is incorrect which does not follow the indictment but allows a jury to convict for an offense which has not been alleged in the indictment.


author: W. C. DAVIS, Judge.

text:
    Ex parte Audrey Gail DAWSON.
    No. 60382.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 28, 1979.

      Carol S. Vance, Dist. Atty. and Douglas M. O’Brien, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

W. C. DAVIS, Judge.

This is a post-conviction habeas corpus proceeding instituted under the provisions of Article 11.07, Vernon’s Ann.C.C.P.

On January 19, 1978, appellant waived her right to trial by jury and entered a plea of guilty before the court to the first count of a two count indictment charging her with credit card abuse. She was convicted of credit card abuse under the first count of the indictment, and punishment was assessed at imprisonment for six years. Appellant was formally sentenced on March 14, 1978. No appeal was taken.

It is now contended that the first count of the indictment, under which appellant was convicted, is fundamentally defective for failure to state an offense against the law. The first count of the indictment, in pertinent part, alleged that appellant, on or about December 10, 1977, “did with intent to fraudulently obtain property and services, present to JANICE MANUEL a FOLEY’s credit card owned by ALICE LOUISE PHIPPS, hereafter styled the Complainant, without the effective consent of the Complainant, knowing that the credit card had not been issued to the Defendant.”

The above indictment was drawn under the provisions of V.T.C.A., Penal Code, Sec. 32.31(b) which, in pertinent part, provides:

“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; . . ”

Petitioner’s specific complaint is that the indictment fails to allege that the credit card was presented with knowledge that it was not used with the effective consent of the cardholder. We agree and grant the relief requested.

In Ex parte Walters, 566 S.W.2d 622 (Tex.Cr.App.1978), this Court held that the essential elements of credit card abuse under Section 32.31(b)(1)(A) are:

(1) a person
(2) with intent to obtain property or services fraudulently
(3) presents or uses
(4) a credit card
(5) with knowledge that it has not been issued to him and
(6) with knowledge that it is not used with the effective consent of the cardholder.

An allegation of culpable mental state (knowledge) regarding the lack of effective consent by the cardholder is omitted in the indictment in this case as it was in Ex parte Walters, supra. See also Ex parte Lucas, 574 S.W.2d 162 (Tex.Cr.App.1978) and Ex parte Mathis, 571 S.W.2d 186 (Tex.Cr.App.1978). This indictment, which fails to allege a necessary element of the offense, is so defective as to require that relief be granted.

Consequently, the relief requested in the habeas corpus is granted and the prosecution under this indictment is dismissed.


author: ONION, Presiding Judge.

text:
    Ex parte Albert RODRIGUEZ.
    Nos. 60835, 60836.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 28, 1979.

      Charles Van Orden, Huntsville, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J„ and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

These are post-conviction applications for habeas corpus brought under the terms of Article 11.07, V.A.C.C.P.

In proceedings in the trial court the trial judge filed findings of fact and conclusions of law determining that the petitioner was entitled to the relief sought. We agree.

The record reflects that petitioner was convicted of the offenses of murder and aggravated robbery on October 18, 1976 in the 186th District Court. Punishment was assessed upon guilty pleas before the court at thirty-five (35) years’ imprisonment in each case. Sentences were made to run concurrently. The cases were affirmed in per curiam opinions by this court.

In habeas corpus applications petitioner alleged he was less than seventeen years of age at the time of the offenses, that he was certified to the district court as an adult by the juvenile court, but that he was not accorded an examining trial in district court as required by V.T.C.A., Family Code, § 54.02(h), in either case and there was no waiver of the same. See Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978). He contends that the indictments returned against him without an examining trial were void. See Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977); Jones v. State, 576 S.W.2d 853 (Tex.Cr.App.1979); White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979); Ex parte LeBlanc, 577 S.W.2d 731 (Tex.Cr.App.1979); Ex parte Hunter, 577 S.W.2d 496 (Tex.Cr.App.1979).

The trial court concluded the facts alleged by the petitioner were true and that no examining trials were held and found as a matter of law that the petitioner was entitled to relief sought in light of Ex parte Menefee, supra, and that his guilty pleas to void indictments did not constitute a waiver of examining trials. Cf. Ex parte Chatman, 577 S.W.2d 734 (Tex.Cr.App.1979).

In light of Ex parte Menefee, supra, and other cases cited, petitioner is entitled to the relief he seeks. The judgments of convictions are hereby set aside, the indictments are ordered dismissed, and the petitioner released from the Department of Corrections.

It is so ordered.

      . These appeals did not raise the question now raised by these habeas corpus proceedings, and were decided prior to the overruling of Wine-garner v. State, 505 S.W.2d 303 (Tex.Cr.App.1974), by White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979) (see footnote # 1).


text:
    Ex parte Richard Anthony ROGERS.
    No. 60891.
    Court of Criminal Appeals of Texas, En Banc.
    March 28, 1979.
    Charles Van Orden, Huntsville, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

TOM G. DAVIS, Judge.

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

On March 17, 1977, petitioner entered a plea of nolo contendere to the offense of murder in the 212th District Court of Galveston County and punishment was assessed by the court at fifteen years. No appeal was taken from this conviction. Petitioner contends that the conviction is void because the trial court “failed to hold an examining trial in violation of the mandatory provisions of the Texas Family Code, Sec. 54.02(h).”

Petitioner, a juvenile at the time the offense in question was committed, was certified by the juvenile court to the 212th District Court to be tried as an adult. The findings of the trial court at the 11.07 hearing reflect that an examining trial was not held pursuant to V.T.C.A. Family Code, Sec. 54.02(h), nor was an examining trial waived in accordance with V.T.C.A. Family Code, Sec. 51.09(a). See Criss v. State, (Tex.Cr.App.), 563 S.W.2d 942.

This Court has held that absent a waiver made pursuant to Sec. 51.09, supra, the failure to afford a juvenile who has been certified as an adult an examining trial before he is indicted renders the indictment void. Ex parte Menefee, (Tex.Cr.App.), 561 S.W.2d 822; White v. State, (Tex.Cr.App.), 576 S.W.2d 843; Ex parte Gloston, (Tex.Cr.App.), 579 S.W.2d 212; (1979); Ex parte LeBlanc, (Tex.Cr.App.), 577 S.W.2d 731 (1979).

A void indictment may be successfully attacked in a collateral proceeding. Ex parte Banks, (Tex.Cr.App.), 542 S.W.2d 183; Ex parte Roberts, (Tex.Cr.App.), 522 S.W.2d 451.

Appellant is entitled to the relief which he seeks. The judgment of conviction is set aside and the indictment is ordered dismissed. The case is remanded to the trial court for proceedings not inconsistent with this opinion.

It is so ordered.

      . I remain convinced that the holdings in Menefee v. State, supra, and its progeny are incorrect. See dissenting opinions in White v. State, supra; Ex parte LeBlanc, supra. Nonetheless, since these cases have become the law of this State, I follow same without further comment. This I believe to be my duty under the oath of office I have taken.


text:
    Richard PEREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 56025.
    Court of Criminal Appeals of Texas, En Banc.
    April 4, 1979.
    Keith E. Kisner, Austin, for appellant.
    Ronald D. Earle, Dist. Atty., and Charles E. Hardy, Asst. Dist. Atty., Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ON STATE’S MOTION FOR REHEARING

ROBERTS, Judge.

On original submission, a panel of this Court considered the insufficiency of the evidence as unassigned error, and it reformed the judgment to show an acquittal. That opinion is withdrawn and the following opinion is substituted.

A jury found the appellant guilty of aggravated robbery. The court found allegations that the appellant had previously been finally convicted of two felony offenses were true. This fixed the punishment at confinement for life.

The appellant’s third ground of error is that the trial court erred in sentencing the appellant in the absence of defense counsel. The statement of facts reveals the following (beginning on September 17, 1975):

“The Court: The sentencing, then, will be set for October the 2nd at 2:00 o’clock.
“[DEFENSE COUNSEL]: Thank you, Your Honor.
Whereupon, this case was recessed until October 2, 1975, and at that time recessed until October 9, 1975, at which time the following proceedings were had:
“THURSDAY, OCTOBER 9, 1975
AFTERNOON SESSION
“THE COURT: 48,151, Richard Perez.
“Having been found guilty by a jury of aggravated robbery and the District Attorney having proved on the punishment hearing that you had been twice before convicted of a felony, your punishment is assessed at a term of life imprisonment in the Texas Department of Corrections.
“I’ll give you credit for any back time that you have.
(Discussion at the Bench.)
“THE COURT: Was that the recommendation of the District Attorney?
“[PROSECUTOR]: It was, Your Hon- or.
Whereupon, there was a brief recess in this case after which the following proceedings were had out of the presence of defense counsel:
“THE COURT: 48,151, you are Richard Perez and you recall that a jury found you guilty of aggravated robbery. The case comes on for the purpose of being sentenced. You are sentenced to life imprisonment. You’re punishment is assessed at life imprisonment, and I’ll sentence you to an indeterminate term of not less than five years nor more than life. I’ll give you credit for your back time to April 22, 1975. Good luck to you.
“THE DEFENDANT: I wanted to— what do I have to do to set in on appeal?
“THE COURT: All right, I’ll tell your attorneys that you want to do that.
THE DEFENDANT: I want to see if I can get a little more time up here so I can straighten out some personal business before I leave.
“THE COURT: I’ll talk to them.”

Thus the record affirmatively shows that the appellant was sentenced in the absence of counsel. The State argues that the recitation, in the printed sentence form, that defendant’s counsel was present should be conclusive. Such recitations do not control when the statement of facts shows the contrary. Compare Porter v. State, 482 S.W.2d 282, 284 (Tex.Cr.App.1972); Turner v. State, 486 S.W.2d 797 (Tex.Cr.App.1972).

The record shows that the appellant was indigent. It does not indicate that he waived his right to counsel. Because sentencing is a stage of a criminal proceeding where substantial rights may be affected (see V.A.C.C.P., Article 42.07), a conviction cannot stand if such a defendant is without the assistance of counsel at sentencing. Ex parte Rains, 555 S.W.2d 478 (Tex.Cr.App.1977); Ex parte Vestal, 468 S.W.2d 372 (Tex.Cr.App.1971). But the absence of counsel at sentencing does not invalidate the judgment of guilt and the assessment of punishment; the proper remedy is resen-tencing, not reversal. See Davis v. Estelle, 529 F.2d 437 (5th Cir. 1976). Compare Holly v. State, 494 S.W.2d 178 (Tex.Cr.App.1973) (defendant absent when sentence was pronounced).

Accordingly, the sentence is vacated and the cause is remanded for proper sentencing.

      . We note that the judgment and sentence fail to reflect that the appellant’s punishment was enhanced under V.T.C.A., Penal Code, Section 12.42(d). The judgment and sentence should reflect the facts of enhancement. Howell v. State, 563 S.W.2d 933 (Tex.Cr.App.1978). Also, the sentence should not recite a minimum term. See Garcia v. State, 513 S.W.2d 559 (Tex.Cr.App.1974).