author: DENTON, Justice.

text:
    H. E. SEARSY et al., Petitioners, v. COMMERCIAL TRADING CORPORATION et al., Respondents.
    No. B-6775.
    Supreme Court of Texas.
    Dec. 30, 1977.
    Rehearing Denied Feb. 8, 1978.

      Dean Carlton, Dallas, for petitioner.
    Sessions, Sessions, Neill, Scucchi & Hatch, W. R. Sessions, Dallas, Walker, Bishop & Larimore, Tom L. Larimore and James R. Lamsens, Fort Worth, for respondent.
   DENTON, Justice.

The question to be decided in this case is whether certain commodity options sold by Commercial Trading Corporation to plaintiffs are “securities” within the meaning of the Texas Securities Act. The trial court held that the commodity options in question are securities, and rendered judgment for plaintiffs for damages and rescission of the option sales. The court of civil appeals concluded that the commodity options are not “securities.” Consequently, it reversed and rendered judgment that plaintiffs take nothing. 559 S.W.2d 663. We hold that the commodity options at issue are “securities” within the meaning of the statute, and accordingly reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

H. E. Searsy was one of eighty-four named plaintiffs who brought a class action suit against Commercial Trading Corporation (CTC) and Standard Trading Corporation (STC) for rescission and damages. The basis of the action was the sale by defendants of commodity options to plaintiffs, which were alleged to be unregistered securities. Under article 581-33 of the Texas Securities Act, the buyer of an unregistered security may sue to recover the consideration paid for the security plus interest thereon at six per cent per annum.

CTC was engaged in the business of selling “puts,” “calls,” and “double options” on commodity futures contracts. A “put” was an option to sell an underlying commodity futures contract for a specified price, while a “call” was an option to buy a futures contract. A “double option” was an option to either buy or sell a futures contract at a certain price. The price specified in the option was known as the “striking price,” which was usually the current market price of a futures contract on the date of the option. The period of the option was a fixed and relatively short term, usually six months. Consideration for the sale of an option was the “premium.” Approximately eighty-five per cent of the sales were of double options.

Profit was made on a double option when the market price varied from the striking price by an amount in excess of the premium. If the market rose to a price in excess of the premium, the double option holder would exercise his call option, “buying” the futures contract and then “selling” the contract at the higher market price. The put option was not exercised. Likewise, the investor in a falling market would exercise his put and abandon his call option.

Although customers of CTC may have believed that they owned options on futures contracts, in reality no actual purchases or sales of futures contracts ever took place between CTC and the investors. Upon the exercise of an option, the customer was credited with an amount equal to his profit. This money was often “rolled over” into the purchase of new commodity option contracts. Thus, no actual futures contract was ever delivered to either party, although the net cash result was the same as if there had been an actual purchase and sale. Commodity options such as these which are not a bona fide option in an actual futures contract are generally known as “naked” options. See Long, The Naked Commodity Option Contract As A Security, 15 Wm. & Mary L.Rev. 211 (1973).

The seller of options makes his profit (and pays the investors) from the “hedging” of option premiums. It was the duty of STC as CTC’s affiliate to underwrite the options and conduct the hedging program for CTC. Basically, this involves covering the seller’s market position by owning or holding sufficient assets to buy futures contracts, the actual commodities, or actual put or call options in futures contracts. Brom-berg, Commodities Law and Securities Law, 1 J.Corp.L. 217, 258-60 (1975). STC’s hedging program was conducted pursuant to an objective computer analysis combined with the subjective analysis of STC personnel. Thus, the ability of CTC to perform its contractual obligation to the investor was solely dependent on the skill and ability with which STC invested the money and hedged the contracts of the numerous investors whose funds CTC had received. King Commodity Co. of Texas v. State, 508 S.W.2d 439 (Tex.Civ.App.—Dallas 1974, no writ).

CTC also gave extensive investment counseling with regard to the purchase and exercise of its commodity options. The customers were generally unsophisticated in commodities market matters, and indeed, CTC pointed out to potential customers that they need not know anything about the commodities market. Rather, CTC personnel would guide them in the proper investment decisions to make. CTC literature also pointed out that the double option provided a high profit potential without having to fight the market by trying to guess whether it would go up or down. Only market volatility was required for the investor to make a profit.

CTC and STC were placed in receivership in November, 1973. Plaintiffs brought suit against CTC, STC, the individual stockholders, and the receiver for rescission and damages resulting from defendants’ sale of unregistered securities. They also sought damages for common law fraud and other statutory violations. After a jury trial, judgment was rendered for plaintiffs for $187,758.80. The court of civil appeals reversed and rendered judgment that plaintiffs take nothing. The issue squarely before this Court is whether the commodity options sold by CTC fall within the definition of “security.” If so, plaintiffs are entitled to rescission and return of all consideration paid since the commodity options were not registered as securities.

Securities are defined in the Texas Securities Act, art. 581-4(A) as follows:

The term “security” or “securities” shall include any share, stock . note, bond, debenture, mortgage certificate or other evidence of indebtedness . or any certificate or instrument representing or secured by an interest in any or all of the capital, property, assets, profits or earnings of any company, investment contract or any other instrument commonly known as a security, whether similar to those herein referred to or not. [Emphasis added.]

The terms “investment contract” and “evidence of indebtedness” appear to have been taken from an almost identical definition of “security” in the Federal Securities Act of 1933, 15 U.S.C. § 77b(l) (1971).

Investment Contract

The term “investment contract” was construed by the United States Supreme Court in S. E. C. v. W. J. Howey Co., 328 U.S. 293, 301, 66 S.Ct. 1100, 1104, 90 L.Ed. 1244, 1251 (1946) as follows:

The test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.

The definition has been widely accepted in state and federal cases. Texas courts have also accepted and used it. Clayton Brokerage Co. of St. Louis v. Mouer, 520 S.W.2d 802 (Tex.Civ.App.—Austin, writ ref’d n. r. e.), dism’d as moot on rehearing per curiam, 531 S.W.2d 805 (Tex.1975); King Commodity Co. of Texas v. State, 508 S.W.2d 439 (Tex.Civ.App.—Dallas 1974, no writ).

The Howey test embodies four requirements: (1) investment of money; (2) a common enterprise; (3) expectation of profits; (4) solely from the efforts of others. The Howey case involved a promoter who sold small plots of land which were to be used as citrus groves. Along with the land sale contract, the Howey-in-the-Hills Service Company offered a service contract for the development and cultivation of the land as well as the marketing of fruit raised thereon. Almost all of the investors purchased the service contract with the plots of land. The Supreme Court held that under the above quoted definition the contracts were “investment contracts” and therefore securities. The Howey test has been applied in many cases to hold various forms of money-making schemes to constitute investment contracts.

There is little dispute as to the first and third elements of the Howey test in this case. The purchase of commodity options was obviously an “investment of money” with the “expectation of profits.” The controversy is whether the sale of commodity options by CTC to investors constituted a “common enterprise,” with investors’ profits to come “solely from the efforts of others.”

CTC argues that the common enterprise or “commonality” element is lacking because the profits of each customer depended on the fluctuations of the commodity market and the customer’s own investment decisions. Furthermore, they contend that there was no direct relationship between options sold to different customers. We agree that there was no horizontal commonality in this ease. Horizontal commonality is between investors and means that the success of one investor is concomitant with the success of other investors. Obviously, different customers of CTC had varying investment results because different commodity options were bought and exercised at different times. The more recent weight of authority, however, permits a showing of vertical commonality — common enterprise between investor and promoter, so that the success of the investor is dependent upon the efforts and success of the promoter. S. E. C. v. Koscot Interplanetary, Inc., 497 F.2d 473 (5th Cir. 1974); S. E. C. v. Glenn W. Turner Enterprises, Inc., 474 F.2d 476 (9th Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973). Here, the ability of CTC to perform its contractual obligation was solely dependent on the success of the hedging program conducted by STC. Approximately seventy per cent of customers’ premiums went to STC to invest and cover the market position of CTC. The fact that each investor’s activity is unitary and unrelated to other investors does not destroy the common enterprise requirement. The situation was quite similar in King Commodity Co. of Texas v. State, 508 S.W.2d 439, 443 (Tex.Civ.App.—Dallas 1974, no writ), in which the court stated:

[T]he money necessary to hedge each option could only come from pooling of the premiums paid by other customers and that if King’s use of this money in its trading operations was not profitable, no funds would be available to pay the customers their profits. Thus . . . the evidence establishes a “common enterprise” within the Howey test.

We find that the requisite “common enterprise” existed in this case.

The final element of the Howey test which is in dispute is whether the profits anticipated by investors would result solely from the efforts of others. The court of civil appeals found that this requirement of an investment contract was not satisfied, and reversed on that basis. It is this finding with which we disagree.

Early cases construing the Howey test gave literal effect to the phrase “solely from the efforts of others.” The investor was required to have exerted no effort with regard to the investment. The more recent trend, however, and in our view the more reasonable approach, is to use a more realistic test which inquires whether the investor made any significant efforts. The “solely from the efforts of others” requirement could be easily evaded by requiring the investor to exert some modicum of effort, such as picking one orange in the Howey citrus groves. This would be a blind and mechanical view of what constitutes an investment contract. We agree that the more realistic test is “whether the efforts made by those other than the investor are undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise.” S. E. C. v. Glenn W. Turner Enterprises, Inc., supra at 482; King Commodity Co. of Texas v. State, supra; State Commissioner of Securities v. Hawaii Market Center, Inc., 52 Haw. 642, 485 P.2d 105 (1971).

In this case, CTC actively sought investors inexperienced in the- commodities market. The salesmen provided these unsophisticated investors with market reports and buy and sell recommendations, but the investor decided on his own whether to exercise his option. It is the defendants’ contention that the exercise of the option is the “effort” of investors sufficient to prevent the options from being securities.

We believe that the speculative nature of the investment necessarily contemplated that the investor would be heavily dependent upon CTC personnel and the advice which they gave. CTC personnel frankly testified that customers were not supposed to understand the CTC business operation. CTC salesmen used a WATS line to call customers when the market moved to a point of being profitable, and advised the customer what to do. Although the final decision was left to the customer, he rarely had any choice but to follow the advice given him by CTC. Upon a very similar set of facts, the Austin Court of Civil Appeals stated our view of this case:

Once a customer has parted with his money, he is dependent upon the financial responsibility, business ability, integrity, expertise and market advice of appellant and, unknown to him, third parties who participate in appellant’s commodity trading. It is the essential managerial efforts of those other than the investor which affect the failure or success of the enterprise. Investors are not required to, and they do not, exert any significant efforts in order to make a profit on their investment. For all practical purposes the critical managerial decisions affecting the investor’s funds are solely within the control of appellant. And finally, an investor cannot without the actual assistance of appellant, exercise his option and receive his profit.

Clayton Brokerage Co. of St. Louis v. Mouer, 520 S.W.2d 802, 809 (Tex.Civ.App.—Austin, writ ref’d n. r. e.), dism’d as moot, on rehearing per curiam, 531 S.W.2d 805 (Tex.1975). We recognize that discretionary accounts were involved in Clayton Brokerage, by which the seller had de facto control of the customer’s account with authority to buy or sell. We do not, however, view that as a distinguishing factor from this case since CTC was relied upon so heavily by its customers. Although the customers in this ease as well as in Clayton Brokerage had the legal right to participate in the commodity options trading, the substance of the transaction was that the seller would exert the significant investment efforts. The investor was not required to actively participate and seldom did.

We conclude, therefore, that the commodity options sold by CTC in this case meet the requirements of an “investment contract,” as set forth in the Howey test.

Evidence of Indebtedness

“Evidence of indebtedness” is another term taken from the Federal Securities Act of 1933, 15 U.S.C. § 77b(l) (1971). It has been defined to mean “all contractual obligations to pay in the future for consideration presently received.” United States v. Austin, 462 F.2d 724, 736 (10th Cir.), cert. denied, 409 U.S. 1048, 93 S.Ct. 518, 34 L.Ed.2d 501 (1972). The court of civil appeals found in this case that there was no “evidence of indebtedness,” but only contracts in which CTC agreed to obtain commodity futures for the customer if he exercised his options. We disagree with this finding.

As pointed out above, the commodity options sold in this case were “naked” options. There was never a purchase or sale by defendants of any futures contract on behalf of a customer; only the net cash result of a hypothecated purchase or sale took place. A naked commodity option sold by CTC represented a contingent obligation on the part of CTC to pay the difference between the striking price of the option and the market price of the futures contract at the time the option was exercised.

The Austin case involved promoters who sold letters of commitment to construction companies in need of funds. The letters of commitment were promises to secure funds from third parties or, if a third party lender could not be found, the promoters promised to advance the money themselves. The court held that the letters of commitment were evidence of indebtedness as a matter of law, and therefore, securities. It stated:

It is true that the letter of commitment is not an indicium of debt in the same sense as is a promissory note, but as used in the Securities Act no such restriction is appropriate. In last analysis, this letter of commitment was sold for a substantial consideration, and the buyer received what appeared to be an enforceable obligation which contemplated the flow of funds. It indicated a binding and legally enforceable right. Therefore, we can find no fault with the ruling of the trial court insofar as it regarded the letter of commitment as plainly being a security.

United States v. Austin, 462 F.2d 724, 736 (10th Cir.), cert. denied, 409 U.S. 1048, 93 S.Ct. 518, 34 L.Ed.2d 501 (1972).

CTC represented in its literature that upon exercise of an option, the customers were assured of payment by “sufficient margin on deposit with Kohlmeyer and Company to initially hedge over $1,000,000 in silver.” According to the testimony of the former president of CTC, STC was to underwrite and “guarantee” the options to the customers. Although the market fluctuations determined the amount to be paid or whether an amount was due, the options were represented as an obligation of CTC to pay money on certain contingencies. The automatic repurchase feature converted CTC’s obligation from one to buy or sell futures contracts to one to pay a monetary return at some future time. We hold that this brings the commodity options within the definition of an “evidence of indebtedness.” King Commodity Co. of Texas v. State, 508 S.W.2d 439, 445 (Tex.Civ.App—Dallas 1974, no writ); Long, The Naked Commodity Option Contract As A Security, 15 Wm. & Mary L.Rev. 211, 240-41 (1973).

In conclusion, we hold that the commodity options sold by CTC in this case were both investment contracts and evidence of indebtedness. It therefore follows that defendants have sold unregistered securities, for which plaintiffs are entitled to rescission and a return of their consideration paid. The judgment of the court of civil appeals is reversed and that of the trial court affirmed.

CHADICK, J., not sitting.

      . Reference is made to the Texas Securities Act, Tex.Rev.Civ.Stat.Ann. art. 581-1 et seq. (Vernon 1964).

      . It should be noted at the outset that regulation of commodity options is now controlled by the Commodity Futures Trading Commission Act of 1974, 7 U.S.C. § 4a (Supp.1977), effective April 21, 1975. The Act preempts the field and gives the CFTC exclusive regulatory jurisdiction over the sale of commodity options. Although private rights of investors under state securities laws may still exist, see Bromberg, infra at 298, the facts in this case arose before the effective date of the federal Act. Our analysis will be limited to the applicability of the Texas Securities Act.


source: Caselaw Access Project

author: DALLY, Commissioner.

license: Public Domain

text:
    J. C. RIDDLE, Appellant, v. The STATE of Texas, Appellee.
    No. 55890.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1977.
    State’s Motion for Rehearing Denied Feb. 8, 1978.

      None on appeal.
    Arthur C. Eads, Dist. Atty., and James T. Russell, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the delivery of phentermine; the punishment is confinement in jail for 4 months.

We have reviewed the record as required by Art. 40.09, Sec. 13, V.A.C.C.P., and unassigned error requires that we reverse the judgment. At the time that it is alleged that appellant delivered phentermine there was no criminal penalty provided for the act, nor is there at the present time.

Substances which are included in the five schedules of controlled substances of the Controlled Substances Act are by definition not dangerous drugs. Prior to the day on which the appellant delivered the phentermine, that substance had been added to Schedule IV of the Controlled Substances Act by the Commissioner of Health. Therefore, it no longer could be classified as a dangerous drug, and the penalty provisions of the Dangerous Drug Act did not apply to the delivery of phenter-mine.

Although the Commissioner of Health has been authorized by the Legislature to add to, to delete from, and to reschedule substances in the five schedules of the Controlled Substances Act, the commissioner has not been authorized to add substances to or delete substances from the four penalty groups of the act. We observe that the Controlled Substances Act does not provide penalties for possession and delivery of substances unless they are included in one of the four penalty groups of the act. Since phentermine has not been added to a penalty group in the Controlled Substances Act, there is no penalty provided for the possession or delivery of phenter-mine.

The judgment is reversed and the prosecution is ordered dismissed.

Opinion approved by the Court.

      . The Dangerous Drug Act, Art. 4476-14, Sec. 2(a), V.A.C.S., defines a dangerous drug as “any drug or device that is not included in Schedules I through V of the Texas Controlled Substances Act and that is unsafe for self-medication, and includes the following:
      “ * * *
      “(3) any drug or device which bears the legend: Caution: federal law prohibits dispensing without a prescription, ...” The Controlled Substance Act, Art. 4476-15, Sec. 2.17, V.A.C.S., provides that:
      “The following substances are dangerous drugs regulated by the provisions of Chapter 425, Acts of the 56th Legislature, Regular Session, 1959, as amended (Article 726d, Vernon’s Texas Penal Code):
      “(3) any substance that bears the legend: Caution: federal law prohibits dispensing without prescription; ...”
      The indictment alleged that the appellant, on February 6, 1976, “did then and there knowingly and intentionally deliver to Agent Ted Retch-loff a dangerous drug, namely: Phentermine which must bear the legend: Caution: federal law prohibits dispensing without a prescription.”

      . Section 2.09(e) of the Controlled Substances Act provides:
      “If any substance is designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof is given to the commissioner, the commissioner shall similarly control the substance under this Act after the expiration of 30 days from publication in the Federal Register of a final order designating a substance as a controlled substance or rescheduling or deleting a substance unless within that 30 day period the commissioner objects to inclusion . . ”
      Phentermine was added to Schedule IV of the Federal Drug Enforcement Administration list of controlled substances, published in the Federal Register on July 6, 1973. 38 Fed.Reg. 18014-15 (1973). Phentermine was added to Schedule IV of the Texas Controlled Substances Act on August 28, 1973. The commissioner acted within his lawful authority in adding phentermine to Schedule IV pursuant to the federal regulations. See Tibbetts v. State, 494 S.W.2d 552 (Tex.Cr.App.1973); Samson v. State, 27 Md.App. 326, 341 A.2d 817 (1975); State v. Gula, 320 A.2d 752 (Del.1974). Cf. United States v. Benish, 389 F.Supp. 557 (W.D.Pa.1975), aff’d, 523 F.2d 1051 (3 Cir. 1975) cert. den., 424 U.S. 954, 96 S.Ct. 1428, 47 L.Ed.2d 359.

      . Section 4.03 of the Controlled Substances Act provides in part:
      “(a) Except as authorized by this Act, a person commits an offense if he knowingly or intentionally manufactures, delivers or possesses with intent to manufacture or deliver a controlled substance listed in Penalty Group 1, 2, 3, or 4.”


author: ROBERTS, Judge.

text:
    Manuel Martinez LUMBERAS, Appellant, v. The STATE of Texas, Appellee.
    No. 52313.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1977.
    State’s Motion for Rehearing Denied Feb. 8, 1978.
    Jack M. Sessom, San Angelo, for appellant.
    Ed R. Paynter, Dist. Atty. and Jim H. Smart, Jr., Asst. Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for sale of phentermine. After finding appellant guilty, the jury assessed appellant’s punishment at nine years’ confinement.

In reviewing the record we have determined that the judgment must be reversed because of unassigned error. Art. 40.09(13), Vernon’s Ann.C.C.P.

In Riddle v. State, 560 S.W.2d 642 (Tex.Cr.App.1977), the defendant was charged with delivery of phentermine. In Riddle we held that there is no longer any penalty provided for the possession or delivery of phentermine. For the reasons stated in Riddle this rule also applies to this appellant’s sale of phentermine.

Therefore, as in Riddle, the judgment must be reversed and the prosecution ordered dismissed.

      . On September 15, 1976, in an unpublished opinion, this appeal was dismissed for want of jurisdiction. The appeal is now reinstated.

      . As in Riddle, the appellant was alleged to have committed the offense after the date phentermine was added to Schedule IV of the Controlled Substances Act. See footnote 2 of the Riddle opinion.


text:
    David Harold HENDERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 56157.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1977.
    State’s Motion for Rehearing Denied Feb. 8, 1978.
    Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant was charged by complaint and information with having “knowingly and intentionally possess(ed)” a dangerous drug, namely: DIAZEPAM. The offense was alleged to have occurred on or about August 8, 1976. On February 17, 1977, appellant waived trial by jury and entered a plea of guilty before the court. Punishment was assessed at one (1) day in jail and a fine of $250.00.

We have determined that the record contains reversible error which must be reviewed in the interest of justice. Art. 40.-09(13), Vernon’s Ann.C.C.P.

In Riddle v. State, 560 S.W.2d 642 (Tex.Cr.App.1977), the defendant was charged with delivery of phentermine. In Riddle we first observed that substances included in the five schedules of the Controlled Substances Act are by definition not dangerous drugs. We then observed that prior to the day on which Riddle delivered phentermine, the Texas Commissioner of Health had added the substance to Schedule IV of the Controlled Substances Act. We then stated:

“Although the Commissioner of Health has been authorized by the Legislature to add to, to delete from, and to reschedule substances in the five schedules of the Controlled Substances Act, the commissioner has not been authorized to add substances to or delete substances from the four penalty groups of the act. We observe that the Controlled Substances Act does not provide penalties for possession and delivery of substances unless they are included in one of the four penalty groups of the act. . . . ”

We therefore held that since phentermine has not been added to a penalty group in the Controlled Substances Act there is no longer any penalty provided for the possession or delivery of phentermine.

Diazepam is not specifically listed as a controlled substance in the Controlled Substances Act, which is codified as Article 4476-15, Vernon’s Ann.Civ.Stat. It appears, however, that the Commissioner of Health added diazepam to Schedule IV of the Controlled Substances Act, Sec. 2.06, effective July 10, 1975, pursuant to his authority under Sec. 2.09 of that Act. Thus, under our holding in Riddle, there is no penalty provided for the possession, delivery or sale of diazepam.

Accordingly, the judgment is reversed and the prosecution is ordered dismissed.

      .The Dangerous Drug Act, Art. 4476-14, Sec. 2(a), V.A.C.S. defines a dangerous drug as “any drug or device that is not included in Schedules I through V of the Texas Controlled Substances Act and that is unsafe for self-medication, and includes the following:

      “(3) any drug or device which bears the legend: Caution: federal law prohibits dispensing without a prescription, . . ”
      The Controlled Substance Act, Art. 4476-15, Sec. 2.17, V.A.C.S., provides that:
      “The following substances are dangerous drugs regulated by the provisions of Chapter 425, Acts of the 56th Legislature, Regular Session, 1959, as amended (Article 726d, Vernon’s Texas Penal Code):
      “(3) any substance that bears the legend: Caution: federal law prohibits dispensing without prescription; . . . ”
      The indictment in Riddle alleged that phen-termine is a drug which bears the legend: Caution: federal law prohibits dispensing without a prescription.

      . The commissioner added phentermine to Schedule IV on August 28, 1973. This action was taken in conformity with the requirements of Section 2.09(e) of the Controlled Substances Act. Clearly the commissioner acted within his lawful authority. See Tibbetts v. State, 494 S.W.2d 552 (Tex.Cr.App.1973), as well as the other authorities cited in footnote 2 of the Riddle opinion.

      . Section 4.03 of the Controlled Substances Act provides in part:
      “(a) Except as authorized by this Act, a person commits an offense if he knowingly or intentionally manufactures, delivers or possesses with intent to manufacture or deliver a controlled substance listed in Penalty Group 1, 2, 3, or 4.”

      . This was almost thirteen months prior to the date this appellant was alleged to have possessed diazepam.


author: GREEN, Commissioner.

text:
    Billy Dale POWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 53823.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1977.
    State’s Motion for Rehearing Denied Feb. 8, 1978.

      Thomas V. Priolo, Amarillo, for appellant.
    Charles W. Darter, Dist. Atty., Memphis, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of burglary of a building. Punishment was assessed at fifteen years.

Appellant by ground of error challenges the sufficiency of the non-accomplice evidence to corroborate the testimony of the accomplice witness Jewell Dodson, also under indictment for this offense.

Fred Cordell, the complaining witness, testified that during the night of October 4, 1974, his store, the Lazy F. Western Wear, in Childress was burglarized and his 370 pound safe containing over $18,000 in cash and other valuables was stolen. Outside the back door, through which the safe was “scooted,” he found two boards “approximately three foot long, cut with a forty-five on each end that looked like it was just right to put on the back of a pick-up to scoot that safe right upon it.” He gave these boards to Ranger Leo Hickman, who was investigating the burglary. They were introduced in evidence as State’s Exhibit 10.

Cordell had been acquainted with appellant when appellant was an employee of the Elks Lodge in Childress, probably in 1972, but had not seen him since, and had never seen him in the store.

There was no evidence before the jury that the safe or any of the contents were ever recovered.

Jewell Dodson took the stand as a State’s witness. She was under indictment for this same offense and before she testified the court granted the State’s motion that she be given full immunity from prosecution for this offense in the State’s courts “and from Federal prosecution insofar as this court can grant such immunity.” Dodson testified substantially as follows:

She was acquainted with appellant when he was employed by the Elks Lodge in Childress in 1972 and lived with him for a while in Childress. At times in 1974 she heard appellant talk about money in the safe in the Lazy F and wonder if the money was still kept in the safe “of Fred Cordell’s store,” and heard him mention “hitting” that safe. On October 5, 1974 about 12:30 a. m. while she was alone at Tony Osborne’s home in Amarillo, appellant and Bud Dudley brought the safe in question to Osborne’s home in a pick-up truck and carried it in the house. Later Tony Osborne came to the house. The safe was opened “with drills, and chisels, and hammers, tools” by appellant and Osborne, and approximately $21,000 in money was taken from it and divided between appellant, Osborne, and Dudley, with each getting approximately $7,000. Many of the papers in the safe were destroyed and the safe was returned to the pick-up and taken away.

After the safe had been taken away, according to Dodson, she and appellant left Amarillo and, after going to several other places, eventually went to Denver, Colorado. In their travels they avoided Childress because they heard an arrest warrant had been issued for them. In December, 1974, they were arrested in a mobile home or trailer in Denver on a warrant from Chil-dress County issued in connection with this burglary case.

In order to corroborate the testimony of the accomplice witness Dodson, and to connect appellant with the commission of this offense, the State introduced evidence substantially as follows:

Arlie Bewley testified that in October, 1974, he operated Lil Abner’s, a club in Amarillo. He had removed the boards of an “electric dance floor” and stored them in a separate building of his. Some of these boards were partially painted blue and were covered with plexiglass. In October, appellant worked for Bewley as assistant manager of Lil Abner’s. Bewley did not remember whether appellant worked for him “all during October, 1974.” His duties included bar tending, I.D. checking, floor manager, repair man, and cleanup man. He did not have a key to the warehouse where the boards were stored and, so far as Bewley knew, he did no work there. The only keys to that building were kept by Bewley and Tony Osborne, manager of Lil Abner’s. Appellant had not assisted in making the repairs to the dance floor or storing the lumber. There was nothing to indicate the building had been broken into in order to remove any boards. In addition to appellant and Osborne, one other male and six females were employed by Bewley at Lil Abner’s club.

In October, Ranger Hickman, while investigating a burglary in Childress, brought two boards, S.Ex. 10, to Bewley, which Bewley recognized as being of the same and similar type as the boards in his old electric dance floor. Hickman took some of the boards which were found in the warehouse with him, which were subsequently introduced as S.Ex. 8.

Leo Hickman, a Texas Ranger, testified that in October he was called upon to investigate the burglary at Fred Cordell’s Lazy F. Western Wear in Childress and the theft therefrom of a safe. In an alley back of the store, he noticed two boards, two by eight, lying on the ground, with indications they had been used in loading the safe onto a truck. No fingerprints were found in the store or on the boards. On October 18, he took these boards, being S.Ex. 10, to Amarillo, where at Bewley’s warehouse he compared them with boards stored there. He found they had the same kind of black substance, plexiglass, and blue paint. Photos of the boards taken from Bewley’s were introduced in evidence as S.Exs. 3-7, inclusive, for comparison with S.Ex. 10. Three boards taken from Bewley’s by Hickman were in evidence as S.Ex. 8. An angle bracket was in evidence, S.Ex. 9, for comparison with grooves in S.Ex. 10. Evidence showed the angle bracket fit the grooves and holes in 10. Additionally, shavings from S.Ex. 8 and other boards found in the warehouse of blue paint and the black substance were taken, and delivered to the Department of Public Safety laboratory. Hickman could not testify on his own knowledge whether appellant was working for Bewley at Lil Abner’s during his investigations there.

Hickman testified that on December 11, 1974, he went to Denver, Colorado, with a warrant for appellant and Jewell Dodson, who was with him, and arrested them. He was not questioned as to the details of the arrest, testifying in that respect only that the first time he met either appellant or Jewell Dodson was December 11, 1974, on which date he arrested them in Denver, Colorado.

Wayland Wright, assistant chief of police of Childress, testified that in investigating the burglary at the Lazy F. Western Wear October 5, along with Ranger Hickman, two boards were found in the alley behind the store with marks indicating the safe had been rolled over them and loaded with their help in a pick-up truck. He definitely identified S.Ex. 10 as being the same boards. Blue shavings and some black shavings were secured from the boards and taken to the Department of Public Safety laboratory. Other similar shavings from boards found at Bewley’s warehouse were also taken to the laboratory.

Dennis Johnson, a chemist with the Texas Department of Public Safety, testified that he made a chemical analysis of the wood shavings brought to him by Hickman and Wright. The black tar-like shavings were small pieces of plexiglass. The analysis he made was for the purpose of determining if the blue paint on two of the separate exhibits was the same, and also whether the black material on the same separate exhibits was the same. His examination “indicated” they were. He was not willing to testify they had the “same source,” but stated they could have. ^

Appellant did not testify.

The above summary constituted the evidence introduced before the jury in the State’s efforts to corroborate the testimony of accomplice witness Jewell Dodson, and tends to connect appellant with the commission of the burglary.

We quote as follows from Moore v. State, Tex.Cr.App., 521 S.W.2d 263:

“The test for determining the evidence required to support a conviction in addition to the testimony of an accomplice has been stated by this Court in numerous opinions as follows:
“ ‘The test of the sufficiency of such corroboration is to eliminate the evidence of the accomplice from consideration and then to examine the evidence of other witnesses to determine if there is inculpa-tory evidence, evidence of an incriminating nature which tends to connect the accused with the commission of the offense. Merely showing an offense occurred is not sufficient.’ ” Odom v. State, Tex.Cr.App., 438 S.W.2d 912; Edwards v. State, Tex.Cr.App., 427 S.W.2d 629; Anders v. State, Tex.Cr.App., 501 S.W.2d 665.
“ ‘The corroborative testimony need not supply direct evidence; it must only tend to connect appellant with the crime.’ Cherb v. State, Tex.Cr.App., 472 S.W.2d 273.”

See also Black v. State, Tex.Cr.App., 513 S.W.2d 569; Chambers v. State, Tex.Cr.App., 508 S.W.2d 348; Tompkins v. State, Tex.Cr.App., 501 S.W.2d 132.

Jewell Dodson, who was under indictment for this same offense when she testified as a State’s witness against appellant, was an accomplice witness as a matter of law and the court so charged the jury. Etheredge v. State, Tex.Cr.App., 542 S.W.2d 148; Hendricks v. State, Tex.Cr.App., 508 S.W.2d 633. Eliminating her testimony, we find no inculpatory evidence of an incriminating nature which tends to connect appellant with the commission of this offense.

Without her testimony, there is no evidence that appellant was in Childress on the night of the burglary. None of the stolen goods; i. e., the safe or any of its contents, were shown to have been in appellant’s possession at any time after the burglary. Assuming sufficiency of the evidence to prove the boards found at the scene and used to load the safe on a truck; i. e., S.Ex. 10, were taken by the burglars from Bew-ley’s warehouse in Amarillo, there was no evidence connecting appellant with these boards. Bewley testified appellant did not help in disassembling the electric dance floor, or storing the lumber therefrom, and that so far as he knew appellant had no more access to the lumber in the warehouse than any other of his employees or anybody else. The fact that appellant was an employee of Bewley’s with duties confined to Lil Abner’s, in a building totally apart from the warehouse, was not sufficient to tend to connect him with these boards or with the commission of the offense.

There was no evidence other than from Dodson that appellant took flight from Childress on the morning of October 5, Bewley, his employer, testified that he did not remember whether appellant worked for him all during October, 1974, or not. Ranger Hickman could not testify from his own knowledge whether appellant was working at Lil Abner’s in Amarillo when he made his investigation there on October 18, two weeks after the burglary. An inference of guilt may be drawn from flight “where there is some circumstance to show the accused is moving out, or running.” Hunter v. State, Tex.Cr.App., 530 S.W.2d 573, at p. 575, citing Jones v. State, Tex.Cr.App., 481 S.W.2d 900; Woods v. State, Tex.Cr.App., 480 S.W.2d 664; Israel v. State, 158 Tex.Cr.R. 574, 258 S.W.2d 82. Except for the testimony of the accomplice witness, the only evidence of flight was the testimony of Ranger Hickman that two months and a week after the burglary he and local officers arrested appellant and Dodson together in Denver, Colorado. This testimony did not tend to connect appellant with the commission of this offense.

For the reasons heretofore stated, appellant’s contention of insufficiency of the evidence to corroborate the testimony of Jewell Dodson, the accomplice witness as a matter of law, is sustained.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

      . The record is silent as to what happened to it thereafter. None of the contents were recovered.

      . The boards found in the rear of Cordell’s store in Childress and the boards taken from Bewley’s warehouse in Amarillo.

      . The trial court sustained appellant’s motion to suppress evidence of certain articles found in the trailer when appellant and Dodson were arrested.


author: DALLY, Judge.

text:
    Marshall A. BRADLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 51435.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Jan. 18, 1978.

      Eugene T. McLaughlin, Houston, for appellant.
    Selden N. Snedeker, Dist. Atty. and Joe K. Hendley, Asst. Dist. Atty., Brownsville, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of theft of property of the value of over $10,000.00; punishment was assessed at imprisonment for 10 years.

This appeal was dismissed on December 17, 1975, because the record did not reflect that appellant gave proper notice of appeal; after a post-conviction habeas corpus proceeding this Court ordered that an out-of-time appeal be granted. Ex parte Bradley, 546 S.W.2d 305 (Tex.Cr.App.1977).

Appellant asserts that the court’s charge is fundamentally defective because it authorized the jury to convict without requiring it to find a necessary element of the offense had been proved, that is, that the alleged taking was without the effective consent of the owner of the property. We agree and reverse the judgment.

V.T.C.A. Penal Code, Sec. 31.03, as in effect at the time of the offense, provided:

“(a) A person commits an offense if, with intent to deprive the owner of property:
“(1) he obtains the property unlawfully; or
“(2) he exercises control over the property, other than real property, unlawfully,
“(b) Obtaining or exercising control over property is unlawful if:
“(1) the actor obtains or exercises control over the property without the owner’s effective consent; or
“(2) the property is stolen and the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen.”

The indictment, in pertinent part, alleged that appellant, on or about February 13, 1975, in Cameron County:

“ . . . did then and there with intent to deprive the owner, Charlie C. Adair, without the effective consent of the owner, of property, namely, United States currency, did unlawfully exercise control over and obtain such property which had a value of over $10,000.00.”

The indictment alleges each element of theft provided in V.T.C.A., See. 31.-03(a)(1), (a)(2), and (b)(1). An indictment for theft which does not allege that the taking was without the owner’s effective consent is fundamentally defective. Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977); Auzenne v. State, 547 S.W.2d 596 (Tex.Cr.App.1977); Sanders v. State, 547 S.W.2d 597 (Tex.Cr.App.1977); Herrin v. State, 547 S.W.2d 598 (Tex.Cr.App.1977); Johnson v. State, 547 S.W.2d 599 (Tex.Cr.App.1977).

The court’s charge applying the law to the evidence allowed the jury to convict the appellant without finding that the taking was without the owner’s effective consent. The charge reads as follows:

“Now, if you find from the evidence beyond a reasonable doubt that on or about the 13th day of February, 1975 in Cameron County, Texas, the defendant, Marshall A. Bradley, either acting alone or as a party to the offense, as above defined, with others did, with intent to deprive the owner, Charlie C. Adair, of property, namely, United States currency, unlawfully exercise control over or obtain such property which had a value of more than $10,000.00, as set forth in the indictment, then you will find the defendant, Marshall A. Bradley, guilty of theft as charged in the indictment.
“Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant, Marshall A. Bradley.”

This charge is fundamentally defective because it allowed the jury to convict appellant without finding all of the statutory elements of the offense. See Long v. State, 548 S.W.2d 897 (Tex.Cr.App.1977). It has always been necessary to charge on all of the essential elements of an offense. See, e. g., Hilliard v. State, 37 Tex. 358 (1873); Cady v. State, 4 Tex.App. 238 (1878); Mendoza v. State, 491 S.W.2d 888 (Tex.Cr.App.1973); People v. Richards, 28 Ill.App.3d 505, 328 N.E.2d 692 (1975); State v. Newhart, 503 S.W.2d 62 (Mo.App.1973).

The court’s abstract instructions on the law — defining “unlawful control,” “effective consent,” “deception” and “deprive” — are not sufficient to remedy the deficiency in that portion of the charge which applies the law to the facts of the case. The State also is incorrect in asserting that the charge is proper because it requires the jury to find that the appellant’s exercise of control over the property was “as set forth in the indictment,” and the indictment includes the element “without the effective consent of the owner.” Were this the law, there would never be any need for a charge, beyond requiring the jury to find that the defendant committed the offense as set forth in the indictment. See United States v. Bosch, 505 F.2d 78 (5th Cir. 1974); People v. Lewis, 112 Ill.App.2d 1, 250 N.E.2d 812 (1969).

The judgment is reversed and the cause remanded.


author: DOUGLAS, Judge.

text:
    Barry L. HUFF, Appellant, v. The STATE of Texas, Appellee.
    No. 52779.
    Court of Criminal Appeals of Texas. Panel No. 2.
    Jan. 18, 1978.

      John Woodard, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Sam Adamo, Asst. Dist. Attys., Houston, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for forgery. The jury found that appellant had two prior felony convictions and assessed his punishment at life.

The sufficiency of the evidence is not challenged.

The record reflects that a wallet and checkbook owned by Nelson Guy Runnels were stolen on July 8, 1974. The wallet contained, among other items, a Gulf credit card and a Rice Food Market courtesy card.

On the same day appellant and two other men entered a Rice Food Market and purchased food valued at $93.77. Appellant presented Benny Nelms, an assistant manager of the store, with one of Runnels’ personal checks for that amount. Appellant signed “Guy Runnels” to the instrument, and for identification purposes gave Nelms a Gulf credit card and a Rice Food Market courtesy card addressed to Guy Runnels.

At that point Nelms called another manager, named Hall, to discuss whether to accept the check. They permitted appellant to take the groceries but Hall followed him outside and returned with appellant’s license plate number. Nelms then wrote the number on the back of the check.

When the forgery was discovered appellant was traced through the license plate number. He was then arrested.

Appellant contends that the trial court erred in admitting into evidence the automobile license plate number written on the back of State’s Exhibit No. 1, the forged instrument, because such evidence was hearsay. He argues that the evidence was harmful because it helped identify appellant.

Hall gave appellant’s license plate number (TGH 652) to Nelms. Hall did not testify.

Nelms testified that he could identify the check as the one presented to him by appellant because he wrote the license plate number and his initials on the instrument. Nelms stated that he was the only person in the store to handle the check and make notations thereon.

The evidence of the license plate number was not hearsay. It was not admitted for the purpose of proving the truth of the matter asserted, but rather for the purpose of describing the relevant details of the transaction which in itself was relevant and provable. The question was whether the check admitted into evidence was the one presented by appellant to Nelms, and not whether the declaration made by Hall regarding the license plate number was true. Thus, the evidence of the license plate number was properly admitted as a verbal act accompanying the provable transaction. See Ramos v. State, 419 S.W.2d 359 (Tex.Cr.App.1967), and authorities cited therein.

Assuming such evidence was hearsay, its admission was harmless error beyond a reasonable doubt. In 24 Tex.Jur.2d Evidence, Section 573 (1961), it is stated that “ ... if the fact to which the hearsay admitted relates is sufficiently proved by other and competent evidence, the admission of the hearsay objected to may properly be deemed harmless.”

In this case, appellant’s identity was proved by a fingerprint found on the forged instrument and by Nelms’ in-court identification.

At the punishment phase of the trial, the court admitted into evidence the penitentiary papers relating to appellant’s two prior felony convictions. Appellant contends the court erred in admitting this evidence because the certified copies of the judgment and sentence in each case contained a facsimile signature and, thus, were not properly signed by the county district clerk.

In Ex parte Spencer, 171 Tex.Cr.R. 339, 349 S.W.2d 727 (1961), we sanctioned the clerk’s execution of legal documents by the use of a facsimile stamp. The contention is overruled.

No error is shown.

The judgment is affirmed.

      . This cause was dismissed because the sentence was pronounced prematurely. It is now properly before us.


text:
    Ex parte Joseph Edward MURCHISON.
    No. 55142.
    Court of Criminal Appeals of Texas. En Banc.
    Jan. 18, 1978.
   OPINION

ROBERTS, Judge.

This is a post conviction application for a writ of habeas corpus under Article 11.07, Vernon’s Ann.C.C.P. The petitioner was convicted of assault with intent to commit rape. The jury found the allegations of two felony convictions to be true, and the appellant’s punishment was imposed at life imprisonment. Upon appeal, this Court dismissed the appeal by per curiam opinion delivered April 24, 1974.

The petitioner’s contentions are numerous. However, we need only consider the petitioner’s contentions that his punishment was enhanced by a prior conviction in which the sentence had been probated, the probation had not been revoked, and that therefore his punishment could not be enhanced under Vernon’s Ann.P.C., Articles 62 or 63. We grant the relief requested.

The petitioner was charged by indictment with assault with intent to commit rape. The indictment also alleged two prior non-capital felony convictions. The first felony conviction alleged was possession of marihuana, Cause No. 12,671, from Henderson County. The second felony conviction alleged was theft of property over $50, Cause No. 8658, from Nacogdoches county.

The petitioner contends that the State’s proof of the first prior felony conviction showed on its face that the imposition of his sentence was suspended and that he was placed on probation. Furthermore, he contends that the State did not offer proof that his probation in the first felony conviction had been revoked and the execution of sentence imposed. Thus, according to the petitioner, there was no evidence that the first felony conviction was final and therefore it could not be used for enhancement purposes.

Since the petitioner does not contend that the first felony conviction was void, the threshold question is whether this Court will consider the petitioner’s contentions. In Ex Parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976), we permitted a collateral attack of an order revoking the defendant’s probation where the revocation order was based on no evidence. We there held that since there was no evidence, not merely insufficient evidence, to support the order revoking probation, a violation of due process had been shown which justified collateral attack by habeas corpus. We hold in this case that the petitioner’s no evidence contention is likewise grounded on an allegation that he was denied due process of law and that the finality of the first prior felony used for enhancement is subject to collateral attack by habeas corpus.

The allegations contained in the petitioner’s application for habeas corpus are supported by the record from the appeal of the conviction for assault with intent to commit rape. The State’s proof of the first prior felony conviction consisted of certified copies of the indictment, the judgment, and the order suspending the sentence and placing the petitioner on probation. The order suspending the imposition of sentence and placing the petitioner on probation affirmatively shows that the petitioner was placed on probation on January 15,1971. None of these certified copies, or any other evidence introduced by the State, proved that the probation had been revoked.

It is well established that under our former Penal Code only final convictions could be used for enhancement purposes. Carter v. State, 510 S.W.2d 323 (Tex.Cr.App.1974; Nealy v. State, 500 S.W.2d 122 (Tex.Cr.App.1973)). Moreover, it is equally well established that a conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted. White v. State, 171 Tex.Cr.R. 683, 353 S.W.2d 229 (1962); Ellis v. State, 134 Tex.Cr.R. 346, 115 S.W.2d 660 (1938); Arbuckle v. State, 132 Tex.Cr.R. 371, 105 S.W.2d 219 (1937); Fetters v. State, 108 Tex.Cr.R. 282, 1 S.W.2d 312 (1927); Brittian v. State, 85 Tex.Cr.R. 491, 214 S.W. 351 (1919). However, a conviction is final for enhancement purposes where the imposition of sentence has been suspended, probation granted, but a revocation of the probation is alleged and proved by the State. Arbuckle v. State, supra; Fetters v. State, supra. Thus, in the absence of proof of an order revoking the petitioner’s probation, there was no evidence that the first prior felony conviction was a final conviction. We therefore hold that the petitioner’s life sentence was obtained in violation of his right to due process of law.

We also note that since the first prior felony conviction was not available for enhancement purposes, Vernon’s Ann.P.C., Article 63 was not available to the prosecution. However, the question remains, whether the second felony conviction— theft of property over the value of $50 —could have been used to enhance the appellant’s punishment under Vernon’s Ann.P.C., Article 62.

Vernon’s Ann.P.C., Article 62, states that:

“If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.”

The obvious issue is whether theft of property over $50 is the “same offense or one of the same nature” as that of assault with intent to commit rape. Theft of property over $50 is an offense against property. It consists of a fraudulent and wrongful taking of corporeal personal property from another, without his consent, with the intent to deprive the owner of the value of the property, and with the intent to appropriate the property to one’s own use and benefit. Assault with intent to commit rape, however, is an offense against a person. It consists of an assault and the specific intent to commit rape. In Robertson v. State, 426 S.W.2d 872 (Tex.Cr.App.1968), we held that robbery by assault and assault with intent to murder were not of the same or similar nature although the element of an assault was common to both offenses. In the present case, where there are no common elements, we conclude that theft is not the “same offense or one of the same nature” as that of assault with intent to commit rape. It is therefore clear that Article 62 was likewise not available for enhancement purposes.

For the foregoing reasons, the petitioner’s application for writ of habeas corpus is granted and he is ordered remanded to the sheriff of Nacogdoches County to answer indictment No. 9347-73-3.

It is so ordered.

      . Vernon’s Ann.P.C., Article 1162.

      . Vernon’s Ann.P.C., Article 63.

      .Cause No. 48,472. The dismissal was based on Articles 44.09 and 44.10, Vernon’s Ann.C.C.P.

      . See Vernon’s Ann.P.C., Articles 1410 and 1421.


author: ODOM, Judge.

text:
    R. J. LINCOLN, Appellant, v. The STATE of Texas, Appellee.
    No. 55341.
    Court of Criminal Appeals of Texas. En Banc.
    Jan. 18, 1978.
    W. John Allison, Jr., Dallas, on appeal only, for appellant.
    Henry Wade, Dist. Atty., John G. Tatum, Larry J. Laurent and Dan P. Garrigan, Asst. Dist. Attys., Dallas, for State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. The appellant pled guilty before a jury and was sentenced to 35 years.

Appellant contends the trial court erred in failing to withdraw the plea of guilty, sua sponte, when evidence was introduced that made evident the innocence of the accused or which at least reasonably and fairly raised an issue as to such innocence, and that he was denied due process of law in that his plea was unknowingly and involuntarily made.

The evidence at trial showed that appellant and another individual entered a Church’s Fried Chicken store in Dallas about 2:00 a. m. on the morning of April 24, 1976, and robbed the assistant manager of $199. Appellant was armed with a loaded pistol and instructed the store’s personnel to lie on the floor while he and his accomplice emptied the cash register. One witness testified that the appellant held the pistol to her side twice. Two Dallas police officers in the vicinity at the time noticed that an individual (the appellant) was behind the service counter in the employees’ area and that the employees were nowhere to be seen. As the police officers approached the store, the two men fled on foot, and after a brief pursuit appellant was apprehended. His accomplice was never found. The evidence further indicates that no shots were fired by the appellant, nor did he strike or physically harm any of the employees at the store.

The appellant testified in his own behalf admitting that he had taken the money and that he used a pistol; however, he further testified that he had no intention of shooting anyone. Under examination by his attorney, appellant testified as follows:

“Q. Okay. Did you ever use that gun?
“A. No, sir.
* * * * * *
“Q. Did you intend to shoot anybody?
“A. No, sir.
“Q. Did you ever cock that gun while you were out there at the scene of that robbery?
“A. No, sir.
“Q. You heard Mrs. Harris testify that you put the gun down next to her. Did you point it at her?
“A. I pointed the gun at nobody. I just, you know, pointed it.
“Q. Was there any reason why you did?
“A. I was scared, you know. I just told them to get down on the floor.
* ⅛ * * * *
“Q. Did you strike anybody out there at the robbery scene, did you hit anybody with that gun or—
“A. No, sir.
“Q. With your fist?
“A. No, sir.
“Q. Did you hurt anybody?
“A. No, sir.
⅜ ⅜ ⅜ * ⅜ ⅜
“Q. Did you threaten anybody out there at the scene of the robbery?
“A. No, sir.”

At this point the trial judge interrupted the testimony:

“THE COURT: Do you want me to change his plea to not guilty?
“DEFENSE COUNSEL: No, sir.
“THE COURT: The indictment reads intentionally and knowingly threaten or [sic] place said complainant in fear of eminent bodily injury. If he’s going to deny it, I’m going to have to change his plea to not guilty.”

Defense counsel then approached the bench and after an unreported discussion with the judge resumed his direct examination. Appellant subsequently testified that he was pleading guilty because he was guilty.

In Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460, 463, it is stated, “[Wjhere a plea of guilty is entered in a felony case, before a jury, and evidence is introduced which makes evident the innocence of the accused, or which reasonably and fairly raises an issue as to such fact, such evidence should be withdrawn or a plea of not guilty entered. At any and all events, the case should not proceed to final judgment under the plea of guilty.” (Our emphasis added.) This rule has been re-affirmed and reiterated in numerous decisions of this Court. See Taylor v. State, Tex.Cr.App., 555 S.W.2d 483; Malone v. State, Tex.Cr.App., 548 S.W.2d 908; Woodberry v. State, Tex.Cr.App., 547 S.W.2d 629; Lewis v. State, Tex.Cr.App., 529 S.W.2d 550.

At issue is whether the appellant’s statements reasonably and fairly raised an issue of fact regarding his guilt such that the trial judge was required to withdraw the guilty plea. We note initially that no effort was made by defense counsel at any time during the trial to withdraw the plea and no objection was made to the court’s charge to the jury instructing that a finding of guilty be rendered. Nonetheless, it is incumbent upon the trial court to withdraw a guilty plea when an issue is reasonably and fairly raised as to the accused’s innocence. Burks, supra.

The offense as alleged in the indictment brought under Sec. 29.02(a)(2), supra, allowed proof of alternative means. Thus, proof of threats or proof of placing another in fear of imminent bodily injury or death will suffice. Here appellant never denied that he placed the complainants in fear of imminent bodily injury or death. He only denied that he threatened them. The testimony of the victims showed they were placed in fear of imminent bodily injury or death, and appellant’s testimony raised no fact issue on this element.

In reviewing the record we hold that no evidence was introduced which makes evident his innocence or which reasonably and fairly raises an issue as to such fact. Thus, no error was committed by the trial court’s failure to withdraw appellant’s guilty plea sua sponte. Appellant’s first ground of error is overruled.

In his second ground of error appellant contends that his guilty plea was taken in violation of due process of law in that he did not possess an understanding of the law in relation to the facts and did not receive adequate notice of the offense to which he pled guilty. Appellant relies on Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). In Morgan’s state prosecution he was originally indicted for first degree murder, and subsequently pleaded guilty to second degree murder. No appeal was taken. The United States Supreme Court affirmed the grant of relief to Morgan with the observation, “This case is unique because the trial judge found as a fact that the element of intent was not explained to respondent.”

Citing Smith v. O’Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859, the court stated:

“[T]he plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offense unless the defendant received ‘real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.’ ” 426 U.S. at 645, 96 S.Ct. at 2257.

In the case at bar the appellant was indicted and pled guilty to the same offense: aggravated robbery. The record affirmatively reflects that the indictment was read to the appellant and that he was arraigned on the charge of aggravated robbery. All the required elements of the offense were correctly stated in the indictment. The record in this case fails to show that appellant was not given an explanation of the elements of the offense. To the contrary, the record reflects the following exchange between the trial court and defense counsel:

“THE COURT: You’re telling me that he is able to converse with you and others with that degree of understanding which would render any defense he may have to this case presentable, is that also true?
“COUNSEL: Yes, it is.
“THE COURT: Are you satisfied that he knows the nature of the proceedings taking place?
“COUNSEL: Yes, sir, I do.
“THE COURT: You have investigated the case, have you not, and does there seem to be a factual basis for his plea of guilty?
“COUNSEL: Yes, sir, I believe there is.
“THE COURT: Your opinion is now that he is of sound mind?
“COUNSEL: Yes, sir.
“THE COURT: He is pleading guilty to this charge with your advice and consent?
“COUNSEL: He is, Your Honor.
“THE COURT: Also as a part of your trial strategy?
“COUNSEL: Yes.
“THE COURT: The Court will accept the plea of guilty then as voluntarily made and will enter it of record.”

We overrule the ground of error.

The judgment is affirmed.

      . V.T.C.A., Penal Code Sec. 29.03(a), provides: “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.”
      Section 29.02 provides in pertinent part: “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 . . . intentionally, or knowingly, threatens or places another in fear of imminent bodily injury or death.”


author: TOM G. DAVIS, Judge. DOUGLAS, Judge,

text:
    Ex parte Scottie Gene WARD.
    No. 56017.
    Court of Criminal Appeals of Texas. En Banc.
    Jan. 18, 1978.
    Steve Carlton, Orange, for appellant.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from an order of the trial court entered in a habeas corpus proceeding.

The appellant is charged by indictment with the crime of aggravated rape. The habeas corpus application in the trial court sought the discharge of the appellant on the basis that the indictment was void, and also sought reduction of appellant’s bail pending trial. The trial court granted the relief sought in respect to bail and lowered appellant’s bond to $15,000. The trial court denied all relief on the issue of the void indictment. Appellant only appeals from the denial of relief on the issue of the indictment.

Ordinarily, when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus relief is not available prior to trial to test the sufficiency of the complaint, information or indictment. Ex parte Meers, 129 Tex.Cr.R. 465, 88 S.W.2d 100; Ex parte Jarvis, 109 Tex.Cr.R. 52, 3 S.W.2d 84. This Court will, however, take note of the fact that there is no pleading charging an offense in an appeal from a habeas corpus hearing.

In Ex parte Dickerson, Tex.Cr.App., 549 S.W.2d 202, appeal was taken from an adverse ruling in a habeas corpus hearing relative to bail. This Court took notice of the fact that the indictment showed on its face that it was barred by limitation and dismissed prosecution under the indictment, setting forth the following rule:

“. . . if the pleading, on its face, shows that the offense charged is barred by limitations the complaint, information, or indictment is so fundamentally defective that the trial court does not have jurisdiction and habeas corpus relief should be granted.”

The rape with which appellant is charged was allegedly committed on March 14,1974. The indictment in this case was presented on July 6, 1977, over three years and three months from the date of the alleged rape.

At the time of the alleged incident, the period of limitations was set by Art. 12.01, V.A.C.C.P., which provided, in pertinent part: “. . . felony indictments may be presented within these limits, and not afterward: (4) one year from the date of the commission of the offense: any felony in Penal Code Chapter 21 (Sexual Offense).” The indictment in the instant case, introduced into evidence by the State, was clearly presented beyond the time allowed by the statute.

In an apparent attempt to overcome the limitations barrier, the indictment included the following averment:

“And the grand jurors aforesaid do further present that on or about the 14th day of March, 1974, a complaint against the said Scottie Gene Ward, at the time known only as an unknown white male with the nickname Cherokee and being described as approximately 20 years old, 5'11", 165 to 180 pounds with brown hair, charging him with the same offense charged in this indictment was duly filed in the Justice Court of Precinct No. One of Orange County, Texas, and thereafter said complaint was pending in said court at the time of the presentment of this indictment.”

This allegation was included in the indictment in an effort to bring it within the provisions of Art. 12.05, V.A.C.C.P., which provides, in pertinent part:

“(b) The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.
(c) The term ‘during the pendency,’ as used herein, means that period of time beginning with the day the indictment, information, or complaint is filed in a court of competent jurisdiction, and ending with the day such accusation is, by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason.”

This case presents the issue of whether a complaint, filed in a justice court, will toll the running of the statute of limitations in a felony case. This question appears to be one of first impression. We hold that such a complaint does not toll the running of the period of limitations.

Article 12.05, supra, provides that the period of limitations will be tolled only after the “indictment, information, or complaint is filed in a court of competent jurisdiction . .” In Hultin v. State, 171 Tex.Cr.R. 425, 351 S.W.2d 248, 255, this Court stated: “A court of competent jurisdiction means a court that has jurisdiction of the offense.”

In Huitín, it was further stated that jurisdiction “includes the three essentials necessary to the jurisdiction of a court; the court must have authority over the person and the subject matter, and it must have power to enter the particular judgment rendered.” See 16 Tex.Jur.2d, Criminal Law, Sec. 200. In 15 Tex.Jur.2d, Courts, Sec. 45, it is written: “Jurisdiction is the power to hear and determine issues of law and fact involved in a case, and to render a judgment thereon, after deciding the existence or non-existence of material facts and applying the law to the findings.”

V.T.C.A., Penal Code, Sec. 21.03, classifies aggravated rape as a felony of the first degree. Article 5, Sec. 8, Vernon’s Constitution of Texas Annotated, provides, in pertinent part: “The District Court shall have original jurisdiction in all criminal cases of the grade of felony . . . .” This provision is also incorporated in Art. 4.05, V.A.C. C.P. Article 5, Sec. 19, Vernon’s Constitution of Texas Annotated, provides, in pertinent part: “Justices of the peace shall have jurisdiction in criminal matters of all cases where the penalty or fine to be imposed by law may not be more than two hundred dollars . . . .” This provision is also incorporated in Art. 4.11, V.A.C.C.P.

While the justice court had authority to take a complaint and issue a warrant of arrest, we find that such court did not have jurisdiction of the felony offense charged herein so as to come within the ambit of Art. 12.05, supra. To hold to the contrary would be to allow a “credible person” to file a complaint in the justice court charging an accused with a felony offense without inquiry being made about the nature of the knowledge upon which an affiant bases his factual statements, and thereby toll the statute of limitations forever. See Art. 15.05, V.A.C.C.P.; Wells v. State, Tex.Cr.App., 516 S.W.2d 663.

We hold that the indictment shows on its face that it is barred by limitation. The indictment is thus void and provides the trial court with no jurisdiction over the appellant.

Habeas corpus relief is granted, and the prosecution under this indictment is ordered dismissed.

DOUGLAS, Judge,

dissenting.

The question presented, in essence, is whether a court of “competent jurisdiction”, as this term is used in Article 12.05, V.A.C.C.P., refers only to a court which has the power to enter a judgment in a particular ease, or whether it also refers to a court which has the authority at the time of acting to do a particular act. The majority errs in adopting the narrower construction of the term and, as a result, incorrectly holds that a complaint filed in a justice court will not toll the running of the statute of limitations in a felony case.

21 C.J.S. Courts § 22 (1940), states, in part:

“The term ‘competent jurisdiction’ is susceptible of two meanings; it may signify that the court must acquire and exercise jurisdiction competent to grant an application, through and by reason of a strict conformity to the requirements of a statute, or it may signify jurisdiction over the subject matter, a sort of authority in the abstract, to hear and determine a case. .
“A court of competent jurisdiction is one having power and authority of law at the time of acting to do the particular act; . . . ” (Italics supplied).

Black, Law Dictionary (4th ed. 1968), states that the term “competent authority,” as applied to courts, “imports jurisdiction and due legal authority to deal with the particular matter in question. . .

Article 15.03, V.A.C.C.P., authorizes a magistrate to receive a complaint and issue a warrant of arrest, and Article 2.09, V.A.C. C.P., provides that the justices of the peace are magistrates within the meaning of the statute. Thus, it is beyond dispute that the justice court in the present case had the power and authority to act on the matter before it — the complaint charging appellant with rape — although it had no power to determine the issues of law and fact in the case or to render a judgment based upon such a determination.

The opinion in State v. Hemminger, 210 Kan. 587, 502 P.2d 791 (1972), is instructive. In that case, defendant committed first degree robbery on September 20, 1964. A complaint was verified and filed in the court of common pleas at Wichita, Kansas, on November 4, 1964. A warrant of arrest was issued on that date but never served.

Defendant was incarcerated in the State of Missouri from the date the original warrant was issued until he was extradited in 1969. An amended complaint was filed and an amended warrant was issued on April 29, 1969, and defendant was bound over for trial in the district court on May 28, 1969. He was tried and convicted in 1970.

On appeal, defendant contended that the filing of the original complaint and the issuance of the original warrant did not constitute commencement of prosecution within the meaning of the Kansas statute. He thus argued that the prosecution was barred by the two year statute of limitations applying to robberies.

The Supreme Court of Kansas observed at the outset that K.S.A. 62-602 required that complaints in criminal cases be made to a magistrate and that such magistrate must determine whether a warrant should issue. The court then determined that the court of common pleas at Wichita had the same jurisdiction in criminal cases as was then given to justices of the peace and that consequently such court was a magistrate court within the contemplation of the statute.

K.S.A. 62-505 provided that where an indictment or information is defective and is quashed, set aside or judgment thereon reversed, “the time during which the same was pending shall not be computed as part of the time of the limitation prescribed for the offense.” Holding that the pendency of a complaint as well as the pendency of an indictment or information met the provisions of the statute so as to toll the statute of limitations, the court reasoned that the original complaint was verified and filed in a court of “competent jurisdiction” and that such a court was one “having jurisdiction to entertain the complaint and issue the warrant.” 502 P.2d at 796. Thus, the court concluded that the pendency of the complaint filed in the court of common pleas, coupled with the issuance of the warrant thereon, tolled the statute of limitations even though the information was not filed in the district court within two years from the date of the offense.

Although not controlling in the case at bar, certain well established principles relative to the criminal statutes of limitation tend to support the view of the court in Hemminger that a felony complaint filed in a justice court will interrupt the running of the statute. The general rules in this regard are stated in 21 Am.Jur.2d, Criminal Law, Section 161 (1965):

“The statute of limitations runs from the time the offense is committed until the prosecution is commenced, unless some intervening act occurs to interrupt it. If the finding of an indictment or the filing of an information is the first step in a criminal case, the prosecution is commenced by the finding and return of the indictment or the filing of the information, and the running of the statute is thereby stopped. But when, as is usually the case, there are preliminary proceedings, the prosecution is commenced and the statute is tolled at the time a complaint is laid before a magistrate and a warrant of arrest is issued; . . .” (Italics supplied and footnotes omitted).

Similar statements with respect to the filing of a complaint and the issuance of a warrant are found in 22 C.J.S. Criminal Law § 234 (1961), and 1 Wharton, Criminal Law and Procedure Section 184 (12th ed. 1957). Cases supporting this proposition include People v. Clement, 72 Mich. 116, 40 N.W. 190 (1888); State v. Erving, 19 Wash. 435, 53 P. 717 (1898); Clayton v. State, 122 Ala. 91, 26 So. 118 (1899); State v. Simpson, 166 Ind. 211, 76 N.E. 544 (1906); Jarrett v. State, 49 Okl.Cr. 162, 292 P. 888 (1930); State v. Gardner, 112 Conn. 121, 151 A. 349 (1930); State v. Emanuel, 153 So.2d 839 (Fla.App.1963); Commonwealth v. Manni, 223 Pa.Super. 403, 302 A.2d 374; People v. Robins, 33 Ill.App.3d 634, 338 N.E.2d 222 (1976); and McMorris v. State, 26 Md.App. 660, 338 A.2d 912 (1975), aff’d 277 Md. 62, 355 A.2d 438 (1976).

In State v. Disbrow, 130 Iowa 19, 28, 106 N.W. 263, 266 (1906), it was stated:

“The beginning of a prosecution and a finding of an indictment are not equivalent expressions. A prosecution is begun when an information [complaint] is filed before a magistrate and a warrant issued for the defendant’s immediate arrest. An indictment is found when it is presented by the grand jury in due form in open court and filed with the clerk. This distinction has been widely, though perhaps not universally, recognized. (Citations omitted).”

This writer finds no precedent which should commit Texas to a rule by which the filing of an indictment or information or complaint in a court in which the case can be tried is the only method of interrupting the running of the statute of limitations for felony offenses. Ex parte Lacey, 6 Okl. 4, 37 P. 1095 (1894), and State v. Smith, 200 La. 337, 7 So.2d 368 (1942), relied upon by the majority in footnote 3 to its opinion, are distinguishable.

Ex parte Lacey involved a habeas corpus proceeding in the Supreme Court of Oklahoma wherein petitioner contended the statute of limitations barred his prosecution. He had been charged with perjury by a complaint filed before a United States Commissioner within the limitation period. The pertinent statute, Section 1044, Rev.St. U.S., read as follows:

“No person shall be prosecuted, tried or punished for any offense not capital, except as provided in section one thousand and forty-six unless the indictment is found or the information is instituted within three years next after such offense shall have been committed.”

The court held that a complaint filed before a commissioner would not toll the running of the statute and granted relief because no indictment or information had been filed within the prescribed period. The decision, however, turned on the fact that the statute made no reference to charges brought by complaint.

In State v. Smith, the Supreme Court of Louisiana held that an indictment must be returned in a court which has jurisdiction to try the case in order to interrupt the running of the statute of limitations. The statute in question, however, made no mention of the filing of a complaint or other preliminary proceedings.

Hattaway v. United States, 304 F.2d 5 (5th Cir. 1962), is not on point. There, defendant was charged by information with kidnapping and subsequently convicted. The conviction was vacated eight years after the crime was committed because he had been charged with a capital offense and, thus, should have been charged by indictment. The government then indicted him for the offense of kidnapping a person who was liberated unharmed and obtained a conviction.

On appeal, defendant contended that the prosecution was barred because the indictment had been returned after the running of the controlling statute of limitations. The government argued that the case fell within the ambit of 18 U.S.C.A. Section 3288, and that the filing of the information had tolled the running of the statute of limitations. Section 3288 provided:

“Whenever an indictment is dismissed for any error, defect or irregularity with respect to the grand jury, or is found otherwise defective or insufficient for any cause, after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned not later than the end of the next succeeding regular term of such court, following the term at which such indictment was found defective or insufficient, during which a grand jury shall be in session which new indictment shall not be barred by any statute of limitations.”

After a thorough analysis of the government’s position, the court concluded that the term “indictment” means indictment, and did not mean, as the government had contended, any formal accusation or charge of wrongdoing. The court held that the filing of the information did not toll the running of the statute of limitations and reversed the conviction. It is clear that a contrary result would have been reached if Section 3288 had made reference to the filing of an information or complaint, as Article 12.05, supra, does.

It is significant that Article 12.05 is directed to the filing of an indictment, information or complaint in a court of competent jurisdiction, and that it does not state the charging instrument must be filed in a court having jurisdiction to try the case. The Legislature’s intent in enacting this provision was not only to extend the period of limitation in cases where an indictment or information is filed within the prescribed period, but also to extend such period where a complaint is filed in good faith by the State before the statute has run and there is insufficient time to present an indictment or information.

The majority fears that to permit the filing of a complaint in a justice court to toll the running of the statute could allow a felony charge to burden an accused during the remainder of his life. But there is no vested right to escape from prosecution; statutes of limitation are acts of grace, a surrendering by the sovereign of its right to prosecute. See 22 C.J.S. Criminal Law § 223 (1961), and cases there cited. Moreover, the accused can protect himself from the danger that the statute will be tolled indefinitely by demanding a hearing.

Like the court in State v. Hemminger, supra, the justice court in the instant case had jurisdiction to entertain the complaint and issue an arrest warrant. No reason appears why petitioner should be in a more favorable position that an accused in a similar case where the charging instrument was filed in a court having jurisdiction to try the case.

We should hold that the filing of a felony complaint in a justice court will toll the running of the statute of limitations. And since the indictment in this case alleged facts tolling the limitation period, see Cooper v. State, 527 S.W.2d 563 (Tex.Cr.App.1975), we should further hold that such indictment is not void on its face.

The relief sought should be denied.

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

      . Article 12.01 was amended by Acts 1975, 64th Leg., p. 478, ch. 203, sec. 5, eff. Sept. 1, 1975, to delete section 4 and include rape in the general three year statute of limitations for felonies. Even if the new three year period was applicable, the indictment would still have been presented after the time had expired.

      . Article 21.07, V.A.C.C.P., provides, in pertinent part: “When the name of the person is unknown to the grand jury, the fact shall be stated, and if it be the accused, a reasonably accurate description of him shall be given in the indictment.” Thus, lack of knowledge of the accused’s name does not prevent indictment.

      . Our research reflects that this issue has been met in other jurisdictions in Ex parte Lacey, 6 Okl. 4, 37 P. 1095; State v. Smith, 200 La. 10, 7 So.2d 368; Hattaway v. United States, 5 Cir., 304 F.2d 5. For what may be a contra view, see State v. Hemminger, 210 Kan. 587, 502 P.2d 791, where it was stated that a prosecution to toll the statute “is commenced by the filing of a verified complaint and the issuance of a warrant in good faith.” In the instant case, the complaint filed in the justice court was not introduced, the reference thereto being in the indictment. The record does not reflect whether a warrant was ever issued upon the basis of the complaint.

      . See Tex.Laws 1977, ch. 787, at 1970, effective as of July 1, 1978. This Act, relating to a speedy trial in criminal cases, amends the Code of Criminal Procedure, 1965, as amended, by adding Chapter 32A, by adding Articles 17.151 and 28.061, and by amending Articles 29.02 and 29.03.