author: ROBERTS, Judge.

text:
    James Earl ROWLAND, Appellant, v. The STATE of Texas, Appellee.
    No. 50253.
    Court of Criminal Appeals of Texas.
    June 11, 1975.
    Richard D. Bird, Childress, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant was convicted by a jury for driving a motor vehicle upon a public road while intoxicated. Art. 67011-1, Vernon’s Ann.Civ.Stat. At the punishment stage of the trial the trial court instructed the jury that the punishment for this offense was by confinement in the county jail for not less than three days nor more than two years, and by a fine of not less than Fifty Dollars nor more than Five Hundred Dollars, the applicable penalty under Article 67011-1, Vernon’s Ann.Civ. Stat. The jury set appellant’s punishment at three days in jail, a fine of Fifty Dollars, and suspension of appellant’s driver’s license. The jury further recommended that the jail time and driver’s license suspension be suspended for one year. We note that a jury has no legal authority to either suspend or to recommend that a defendant’s driver’s license not be suspended. Beach v. State, 150 Tex.Cr.R. 193, 199 S. W.2d 1020 (1949).

The complaint and information alleged that appellant, while intoxicated, operated a motor vehicle “on F. M. 1632 about ½ to 1 Mi. South of Dodson” in Collingsworth County. The proof showed that appellant was driving his vehicle on F. M. Road 1642, not F. M. Road 1632, as alleged in the complaint and information.

In Williams v. State, 168 Tex.Cr.R. 622, 331 S.W.2d 57 (1960), it is stated:

“In charging a violation of Article 802, Vernon’s Annotated Penal Code (now Article 6701Z-1, Vernon’s Ann.Civ.Stat.), it is sufficient to allege that the appellant, while intoxicated, operated a motor vehicle upon a public highway in the county without naming or describing the highway. Hartsook v. State, 156 Tex.Cr.R. 560, 244 S.W.2d 830, and Tate v. State, 153 Tex.Cr.R. 571, 223 S.W.2d 634. However, where, as here, the information describes the highway with unnecessary particularity, such descriptive averment must be proved. Brunson v. State, 152 Tex.Cr.R. 158, 211 S.W.2d 755, and Blackburn v. State, 150 Tex.Cr.R. 572, 204 S.W.2d 619.”

There being a fatal variance between the allegations and the proof, the conviction cannot stand.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: ARCHIE BROWN, Commissioner.

license: Public Domain

text:
    Ex parte Olden Ben BOWMAN.
    No. 50006.
    Court of Criminal Appeals of Texas.
    June 4, 1975.
    W. John Allison, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty. and Jerome L. Croston, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ARCHIE BROWN, Commissioner.

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

Appellant was convicted by a jury of assault with intent to commit murder with malice. His punishment was assessed by the court at 25 years. On direct appeal this conviction was affirmed on February 6, 1974. Bowman v. State, Tex.Cr.App., 504 S.W.2d 880.

Appellant urges that the court violated his due process rights in assessing the punishment at 25 years because he previously entered a guilty plea to the same indictment before the same judge who assessed punishment at 17 years and, when notice of appeal was given from the plea of guilty, the court granted a new trial. Appellant contends that the eight year increase in punishment on the second trial violates the rule set down in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This matter was not raised on the direct appeal.

The trial judge has forwarded with the record in the habeas corpus proceeding his findings of fact and conclusions of law which bear a file mark of the District Clerk of Dallas County dated June 7, 1973. This instrument was not included in the record on the direct appeal approved by the trial court on July 30, 1973. This instrument received by this Court on March 11, 1975, is as follows:

“On this the 27th day of February, 1973, after the Jury has unanimously returned a Verdict of Guilty to the felony offense of an assault with intent to commit murder with malice as charged in the Indictment against this Defendant, and after the Court having heard the evidence offered by the State with regard to the proper punishment to be set, the Court this day makes the following findings of fact and conclusions of law:
“I
“The Court takes judicial knowledge of its own records, recalls and recognizes that on the 29th day of January, 1973, that this Defendant appeared before the Criminal District Court in Dallas County, Texas in person and with his attorney, Mr. Robert M. Jones.
“That at that time the Defendant in the trial before the Court entered a plea of Guilty to the allegations contained in the Indictment for the felony offense of assault with intent to commit murder with malice as charged in the Indictment.
“And further, that the Defendant testified in the case where under oath he admitted his identity as being Olden Ben Bowman, Junior, being the same man charged with a Bill of Indictment in this case.
“And further, that each and all of the allegations contained in the Indictment were true, and in response to a question by the State acknowledged that his judicial confession that he admitted this offense offered into evidence by the State, State’s Exhibit Number One was true.
“After which the Court found the accused Guilty of the offense charged, and upon recommendation of the attorneys, fixed his punishment at 17 years confinement in the Texas Department of Corrections.
“That thereafter on the 7th day of February, 1973, that this Defendant notified the Court in writing that he wished to appeal the case. At which time the Court responded by granting the Defendant a new trial hearing, and this case was ordered restored to the pending Docket of this Court, and came on to be heard for trial on February 26th, 1973, which is the present trial of this case.
“The Court finds that after having heard the evidence in the case, which was not adduced at the trial before the Court, that this Defendant committed the crime of assault with intent to commit murder while in the perpetration of a criminal offense in that he was attempting to commit the crime of theft against the complaining witness herein, James Grandvill Wadley.
“That while in the commission of this offense having been observed by the Complainant, James Grandvill Wadley, who made an attempt to apprehend this accused, that this accused with a knife stabbed his victim numerous times.
“The Court further finds that the wounds were more than one. That they caused serious bodily injury resulting in the hospitalization of the Complainant. And that as a result of the attack by this Defendant, that the Complainant lost the use of his spleen.
“The Court futher (sic) finds that this Defendant has had a long and varied criminal record. That he has heretofore been incarcerated in the Texas Department of Corrections for six felony offenses.
“And the Court further makes known that these facts were not known at the time the Court assessed the punishment upon the recommendation of the attorneys at 17 years. Because of the additional information, the aggravation of this crime, the fact that it was caused or was committed in the act of committing another felony offense, and because of the criminal record of this Defendant, the Court will fix the punishment in this case at 25 years confinement in the Texas Department of Corrections.”

This instrument is signed by the trial judge.

In North Carolina v. Pearce, supra, the Supreme Court of the United States stated:

“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he received after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must he based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” (Emphasis added).

None of the factors which the trial judge listed as the basis for his increased punishment occurred after the time of the original sentencing. Miller v. State, Tex. Cr.App., 472 S.W.2d 269.

The relief sought by appellant is granted and the cause is remanded for the assessment of punishment by the trial court in accordance with North Carolina v. Pearce, supra. Payton v. State, 506 S.W.2d 912.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Cleo Chester McGREW, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50147.
    Court of Criminal Appeals of Texas.
    June 11, 1975.

      Fred J. Marett, III, Houston, for appellant.

      Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for possession of marihuana in excess of four ounces, wherein the punishment was assessed by the jury at ten (10) years and a fine of five thousand dollars ($5,000).

On original submission this appeal was dismissed in a per curiam opinion because it appeared that the sentence had been pronounced prior to the expiration of the ten days allowed to file a motion for new trial or in arrest of judgment as provided by Articles 40.05 and 41.02, Vernon’s Ann.C.C.P., and the record was silent as to any waiver of the time period by the appellant. A supplemental transcript has now been forwarded to this court showing that the appellant affirmatively waived the time period involved prior to sentencing. The appeal is reinstated.

Appellant’s sole ground of error reads:

“The trial court erred in admitting evidence, over appellant’s timely objection, obtained from a warrantless search of the trunk of appellant’s car without consent and without probable cause.”

Appellant filed a motion to suppress the evidence seized from the trunk of his car, being 17 baggies of marihuana, and the court at the hearing on such motion the day before trial overruled the same.

At trial, however, when the evidence was offered the record reflects the following:

“MR. CHEATHAM (District Attorney) : We would offer into evidence State’s Exhibit No. 1, consisting of the 17 baggies, Your Honor.
“THE COURT: What says the defendant ?
“MR. MARETT (Defense Counsel): Your Honor, we don’t have any objections.
“THE COURT: All right. It will be admitted.” (Emphasis Supplied)

In view of the express statement of appellant’s counsel, nothing is presented for review under the claim that evidence was seized as a result of an illegal search. Cortez v. State, 520 S.W.2d 764 (Tex.Cr. App.1975); Johnson v. State, 504 S.W.2d 496 (Tex.Cr.App.1974); Weatherspoon v; State, 501 S.W.2d 909 (Tex.Cr.App.1973); Stewart v. State, 491 S.W.2d 410 (Tex.Cr.App.1973); Finklea v. State, 481 S.W.2d 889 (Tex.Cr.App.1972).

Appellant relies upon Graves v. State, 513 S.W.2d 57 (Tex.Cr.App.1974), for the proposition that since the trial court had overruled his motion to suppress after the presentation of evidence in connection therewith it was not necessary for the defendant to object when the contraband was offered in the presence of the jury. See Article 40.09, Sec. 6(d)(3), Vernon’s Ann.C.C.P.

Graves can be distinguished from the instant case for there the defendant voiced no objection in the presence of the jury to the introduction of the contraband, whereas the appellant expressly stated that he had no objection, expressly waiving any reliance upon the ruling made on the motion to suppress. See Boykin v. State, 504 S.W.2d 855 (Tex.Cr.App.1974).

The judgment is affirmed.

      .See also Powers v. State, 456 S.W.2d 97 (Tex.Cr.App.1970); Price v. State, 460 S.W.2d 420 (Tex.Cr.App.1970).


author: DALLY, Commissioner.

text:
    Samuel Odean WARD, Appellant, v. The STATE of Texas, Appellee.
    No. 50081.
    Court of Criminal Appeals of Texas.
    May 28, 1975.
    Alan O. Johnson, Tyler, for appellant.
    Curtis L. Owen, Dist. Atty., and Frank McClendon, III, Asst. Dist. Atty., Tyler, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from an order revoking probation. The appellant was convicted on a plea of guilty for the offense of burglary in Smith County on June 29, 1973; the imposition of sentence was suspended, and the appellant was placed on probation for five years. On May 2, 1974, the appellant was convicted of the offense of burglary in Jefferson County, and punishment was assessed at imprisonment for four years. Then, on September 23, 1974, the appellant’s probation was revoked in Smith County, and he was sentenced to imprisonment for three years.

The appellant’s attorney has filed a brief comporting with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), asserting that the appeal is frivolous and without merit. The appellant has been furnished a copy of the brief. As suggested in Anders v. California, supra, the appellant has advanced an arguable ground of error.

When the appellant was sentenced in Smith County after his probation was revoked, the sentence was made to run consecutively to the Jefferson County conviction. He claims on appeal that the failure of the order to specify which district court in Jefferson County sentenced the appellant renders the order invalid. The order of cumulation reads as follows:

“It is further ordered by the Court that the punishment under the sentence here imposed shall begin when the Judgment and sentence against this Defendant in Criminal Cause No. 30922 in the District Court of Jefferson County, Texas, wherein the Defendant was on the 2nd day of May, 1974, duly and legally sentenced to serve a term of Four (4) years for the offense of Burglary, shall have ceased to operate . . . ”

The requirements for cumulation orders have been before specified. It has been recommended that the orders contain :

(1) the trial court number of the prior conviction;

(2) the correct name of the court where the prior conviction was taken;

(3) the date of the prior conviction ;

(4) the term of years of the prior conviction ; and

(5) the nature of the prior conviction.

Phillips v. State, 488 S.W.2d 97 (Tex.Cr. App.1972) ; Ex parte Lewis, 167 Tex.Cr.R. 237, 320 S.W.2d 17 (1959). Orders containing less than the recommended elements of a cumulation order have been upheld. See Phillips v. State, supra; Ex parte Collier, 156 Tex.Cr.R. 377, 243 S.W. 2d 177 (1951).

Here the ground of error presents the question of whether the “District Court of Jefferson County” is sufficiently specific to apprise the Department of Corrections and the appellant where the prior conviction was taken. We judicially know that there is more than one district court in Jefferson County, and that each district court has criminal jurisdiction of felony cases, see Lord v. Clayton, 163 Tex. 62, 352 S.W.2d 718 (1961); cf. Ex parte Bazemore, 430 S.W.2d 205 (Tex.Cr.App. 1968); therefore, the order of cumulation is inadequate to designate the court in which this conviction was taken. Such designation has been held to render an order of cumulation too vague to be effective. Ex parte McCullough, 416 S.W.2d 420 (Tex.Cr.App.1967); Ex parte Whitley, 171 Tex.Cr.R. 280, 347 S.W.2d 721 (1961); Ex parte Miller, 168 Tex.Cr.R. 61, 323 S. W.2d 436 (1959); Ex parte Hamilton, 163 Tex.Cr.R. 283, .290 S.W.2d 673 (1956); however, in those cases other requirements listed above for cumulation orders were also absent. The error in the designation of the court combined with the other omissions made the order inadequate.

Here, the order names the court as the “District Court of Jefferson County,” and contains the trial court docket number, the date of the conviction, the punishment assessed, and the nature of the offense. We hold that the error in the specification of a particular Jefferson County District Court does not defeat this order. See Phillips v. State, supra; Ex parte Lewis, 414 S.W.2d 682 (Tex.Cr.App.1967); Ex parte Shields, 371 S.W.2d 395 (Tex.Cr. App.1963); Ex parte Daffern, 162 Tex. Cr.R. 472, 286 S.W.2d 151 (1956).

The more important problem presented is not the cumulation order in the Smith County judgment, but the validity of the Jefferson County judgment. The requirements of a valid judgment, Article 42.01, V.A.C.C.P., do not specifically include the designation of the trial court, but such a designation is necessarily to be inferred from the language of that Article. It appears that the name of the court on the order of cumulation was copied from the Jefferson County judgment. The only designation of the court on the printed judgment form from Jefferson County is:

“In The District Court of Jefferson County Criminal Judicial District of Texas.”

There is no indictment or other document in the record to aid in the interpretation of this judgment. As mentioned, Jefferson County has more than one district court. The 58th, 60th, 136th, and 172nd, as well as the Criminal District Court, are all within the Criminal Judicial District of Jefferson County and have jurisdiction of felony cases. Lord v. Clayton, supra. Here, the judgment is signed by Judge George Taylor who we judicially know to have been the judge of the Criminal District Court of Jefferson County at the time of this conviction. See McCormick & Ray, Texas Law of Evidence, § 177; Porter v. State, 72 Tex.Cr.R. 71, 160 S.W. 1194 (1913). There is no indication that the judgment was entered in either the 58th, 60th, 136th or 172nd District Court of Jefferson County. We find that the judgment is valid and that it was entered in the Criminal District Court of Jefferson County.

The ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: DAVIS, Commissioner,

text:
    Jerry M. HARTSFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 50248.
    Court of Criminal Appeals of Texas.
    June 4, 1975.

      Tom Tatum, Tyler, for appellant.
    Curtis L. Owen, Dist. Atty. and Frank McClendon, III, Asst. Dist. Atty., Tyler, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner,

Appeal is taken from an order revoking probation.

On May 17, 1971, appellant entered a plea of guilty before the court to the offense of felony theft. Punishment was assessed at three years, the imposition of sentence was suspended, and appellant was granted probation.

On April 6, 1973, the State filed a motion to revoke appellant’s probation. The condition alleged to have been violated by appellant was that he “failed to report to the probation officer between the 1st and 10th days of October, November and December of 1972, and January, February, March and April of 1973.”

After a hearing on July 3, 1973, the court revoked appellant’s probation. At the close of the revocation hearing, the court made the finding “that in accordance with the Application on file, that he failed to report during the period, as alleged in here, during the months of October, November, and December of 1972, and January, February, March, and April of 1973, as alleged in the Application.”

Appellant contends the court erred in that there was insufficient evidence to support the court’s finding in revoking probation.

The State’s only witnesses at the probation hearing were Phillip Lewis, Assistant Adult Probation Officer of Bexar County, and Elliott Boyles, Adult Probation Officer of the 114th Judicial District Court. Appellant did not testify, nor did he offer any evidence in his behalf.

Lewis testified that his department was requested to provide “courtesy supervision” for the Smith County Adult Probation Department in May of 1971, and that appellant’s case “was officially under my supervision from October 1, 1971 until the last contact that we had with the Defendant.”

The record reflects that the following testimony was elicited from Lewis.

“Q. All right, can you tell me what months he reported ?
“A. Yes, sir. He did, of course, report in May, 1971. Also reported June, July, August, September, October, November and December of 1971. January, February, March, April, May, June, July, August, and September of 1972. [At this juncture, the record reflects that the court ordered stricken the testimony ‘pertaining to the period before October of 1971, when the witness personally started supervision of him.’]
“Q. All right, when was the last time he reported to you ?
“A. September 28, 1972.
“Q. Did you at that time establish that he was to report to you at a later date, or to someone else, or what?
“A. . . . Yes, he was to report again in October, 1972.
“Q. Who was he to report to in October of 1972?
“A. . . . He was to report to our
office. He would be reporting to me if I were in the office. If I happened to be traveling, in the jail, something of that sort, he would report to any one of the other Felony Officers.
“Q. To. your personal knowledge, did he report to you in October, November, and December of 1972 ?
“A. No, sir, he did not.
“Q. To your personal knowledge, did he report to you in January, February, March, or April of 1973 ?
“A. No, sir, he did not.”

The State then sought to question Lewis relative to whether the records of the office reflected if appellant reported to any one in the office during the period in question. Each time the prosecutor asked such question, the court sustained appellant’s objection that the proper predicate had not been established for the introduction of the records. The record is devoid of any evidence relative to whether appellant reported to any officer other than Lewis in the Adult Probation Department of Bexar County on the months in question.

By way of summary, the State proved that appellant was under “courtesy supervision” of the Adult Probation Department of Bexar County. Appellant was to report to Probation Officer Lewis if he were in the office. In the -event that Lewis was not in the office, appellant was to report “to any one of the other Felony Officers.” The evidence reflects nothing more than that appellant did not report to Lewis on the months in question. We find the evidence does not support the court’s finding, and conclude that the court abused its discretion in revoking appellant’s probation.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . Condition (d) of appellant’s probation provided that he “report to the probation officer between the 1st and 10th days of each month.”

      . Probation officers who extend “courtesy” supervising authority are cautioned to read Art. 42.12(B), Secs. 5, 6, Vernon’s Ann. C.C.P.


text:
    Charles Roy STEELE, Appellant, v. The STATE of Texas, Appellee.
    No. 49839.
    Court of Criminal Appeals of Texas.
    June 11, 1975.

      Donald W. Keck and K. Lynn Phillips, Dallas, for appellant.
    Henry Wade, Dist. Atty., Richard W. Wilhelm, John Sparling and Don Dros-coll, Asst. Dist. Attys., Dallas, Jim D. Voll-ers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of rape by threats. Punishment was assessed by the jury at ten (10) years in the Texas Department of Corrections. The indictment charged rape by force, threats and fraud. The case was submitted to the jury solely on the issue of rape by threats.

PARTI

Initially, we shall consider appellant’s assertion that the trial court erred in not requiring the State to elect which of the two acts of intercourse as shown by the evidence it relied upon for a conviction. Appellant contends that the two acts of intercourse occurred two hours and approximately twenty miles apart.

Briefly, the evidence shows A_ S_, the 34 year old prosecutrix, went to the Roundup Club in Dallas on the night of March 24, 1973, where she met a girl friend, Laura McGehee. While there, she became acquainted with the 29 year old appellant, who was seated at a nearby table with several other men and who told her he was a Dallas police officer. They danced several times. Upon leaving the club, it was agreed the appellant, the prose-cutrix and her friend would go to a pancake house and later appellant would be taken to his car at another location. While riding alone with the prosecutrix in her car, appellant forced her to drive off the expressway and into a parking lot where his car was parked. There, he pulled a knife and told her to remove her clothes from the waist down. Appellant then had intercourse with her in the back of the car. He later displayed a pistol and handcuffed her to the steering wheel of the car and told her to drive to her apartment. Appellant followed in his car. There, after a 20 mile drive, appellant ordered her into her apartment and had intercourse with the prosecutrix in her bed some two hours after the first act of intercourse. When he fell asleep, the prosecu-trix fled to her parents’ apartment. The police were called and went to the prosecu-trix’s apartment, where they found the appellant asleep in the nude on the bed.

As a general rule, where the indictment alleges one act of intercourse and the evidence reflects two or more acts, the State can obtain but one conviction and should, upon motion of the defendant, be required to elect which act it will rely upon for conviction. See 48 Tex.Jur.2d, Rape, Sec. 80 (Election of Acts), p. 728. Generally, the failure to require election upon such motion by the accused will require reversal. Bates v. State, 165 Tex. Cr.R. 140, 305 S.W.2d 366 (1957); O’Clair v. State, 364 S.W.2d 375 (Tex.Cr.App. 1963) No election is required, however, where the evidence shows that the several acts of intercourse were committed by one continuous act of force and threats. 48 Tex.Jur.2d, Rape, Sec. 80, p. 729.

There can be no question that if both acts in the instant case had occurred in the back of the car or in the same bed no election would have been required. Bethune v. State, 363 S.W.2d 462 (Tex.Cr. App.1962). Although the acts were separated by the time and distance asserted, the two acts of intercourse were occasioned by appellant’s continuing and intervening actions, and they were part and parcel of the same criminal transaction. We cannot conclude the court erred in refusing to require an election. See Ledesma v. State, 147 Tex.Cr.R. 37, 181 S.W.2d 705 (1944); France v. State, 148 Tex.Cr. R. 341, 187 S.W.2d 80 (1945); Torres v. State, 169 Tex.Cr.R. 113, 331 S.W.2d 929 (1960). See also McNutt v. State, 168 Tex.Cr.R. 27, 322 S.W.2d 622 (1959).

The facts of the instant case clearly distinguished it from O’Clair and Bates, relied upon by the appellant. See footnote # 1.

The remainder of appellant’s grounds of error have been considered and disposed of in a per curiam opinion marked Part II. Such per curiam opinion is for the benefit of the parties, but is not for publication. It is not to be accepted or cited as authority. It does not contain any new questions of law that would add to the jurisprudence of this State.

Finding no reversible error, the judgment is affirmed.

      . Where no motion to elect is made, the question cannot be raised for the first time on appeal. Longoria v. State, 159 Tex.Cr.R. 529, 265 S.W.2d 826 (1954).

      . O’Clair v. State, supra, held that where the prosecutrix testified she had lived with the defendant in Massachusetts before coming to Texas and that the defendant had intercourse with her constantly during some three years prior to the date charged in the indictment and many of the acts proved by the State occurred outside the State, the State should have been required to elect as to which act of intercourse it would rely upon for a conviction. In Bates v. State, supra, the 13 year old prosecutrix testified the .appellant, her stepfather, had commenced having intercourse with her in May, 1954, and had intercourse once or twice a week during the remainder of 1954 and all of 1955, and beginning in 1956 the number increased to three or four a week. On June 20, 1956, the on or about date .alleged in the indictment, appellant had intercourse with her in his bedroom and on July 4, 1956, he had another act of intercourse with her while taking her to the doctor. Recognizing the general rule, the court reversed because the election should have been required. Ledesma v. State, 147 Tex.Cr.R. 37, 181 S.W.2d 705 (1944), was distinguished.


author: MORRISON, Judge.

text:
    Preston Edward GREER, Appellant, v. The STATE of Texas, Appellee.
    No. 49931.
    Court of Criminal Appeals of Texas.
    May 28, 1975.

      William C. Denton and Calvin A. Hart-mann, Houston, Both on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Warren White, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder; the punishment, 100 years.

The record reflects that appellánt, in the presence of two people, one of whom was Veronica Lee, shot deceased twice in the head with a shotgun.

Appellant’s first, second and fourth grounds of error relate to witness Veronica Lee. Prior to trial, the trial court granted appellant’s motion to be furnished with Veronica Lee’s “rap sheet”. On the day of trial it became apparent that appellant had erroneously been furnished the “rap sheet” of another “Veronica Lee” who had a very brief criminal record. At the same time the prosecutor reported that to the best of his knowledge the Veronica Lee who would testify in the case had no prior criminal record. When she testified, it was established that this was true.

Appellant contends first that the trial court erred in failing to grant his motion for continuance based on “surprise” resulting from the fact that he had been furnished with incorrect information about one of the State’s key witnesses; second, that the State had failed to provide, within the doctrine of Brady v. Maryland, 363 U. S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), appellant with relevant evidence (correct information regarding the “real” Veronica Lee) material to the defense of the accused; and, third, that the court erred in not permitting him to take the deposition of Veronica Lee prior to trial.

The case at bar does not present a question of suppression under Brady v. Maryland, supra. Appellant had the correct information concerning the “rap sheet” before the commencement of trial. Means v. State, Tex.Cr.App., 429 S.W.2d 490. See also Crutcher v. State, Tex.Cr. App., 481 S.W.2d 113.

Further, we cannot conclude that the fact that appellant thought “Veronica Lee” had one arrest for prostitution (if we properly interpret the police report introduced into evidence by appellant at the motion for new trial) and the fact that the “real” Veronica Lee had no arrests would materially affect the preparation of his defense. The court did not err in failing to grant the motion for continuance on the ground of “surprise”. Once it was shown that the witness who appeared to testify against appellant had no prior criminal record, then appellant’s claim that he was denied ample notice or information from which to cross examine the witness also vanishes. This is particularly true since by the exercise of the minimum of diligence appellant’s counsel would have found out that the “rap sheet” which had been furnished him was of another person than the witness who was with appellant at the time of the homicide.

Regarding the court’s refusal to grant appellant’s motion to take the deposition of the witness Veronica Lee, on appeal appellant claims that if such motion had been granted he would have learned prior to trial that the arrest record which had been furnished him was incorrect. As noted above, appellant was not harmed by the error in identification. Without further claim of deprivation, we would not be warranted in ordering a reversal of this conviction for the court’s refusal to grant the motion. This is especially true in view of the failure of the appellant to establish a proper predicate for the taking of the deposition together with the fact that the witness did appear and testify and was cross examined. See McKinney v. State, Tex.Cr.App., 491 S.W.2d 404.

Appellant’s third and seventh grounds of error relate to argument. Initially appellant complains of the following argument by the prosecutor relating to the death penalty:

“THE STATE (White): I am sorry if I am getting emotional in it. When you talk about a cold blooded murderer with no remorse, no sympathy or anything else, then this man, in my opinion as we cannot ask for it in this case, it deserves the death penalty. I am certain about that. The maximum you can get in this case is life. The punishment—
MR. TATUM: We object to that as highly irregular.
THE COURT: I am charging the law in the charge and the jury will read it.
MR. TATUM: I ask the jury to disregard it.
THE COURT: Disregard that portion having to do with the death penalty. There is no death penalty in Texas. The jury will read the charge and go by it, please.”

Initially, we observe as we did in Franks v. State, Tex.Cr.App., 462 S.W.2d 287, that appellant received all the relief he requested and is in no position to complain.

We do not find that this argument is vi-olative of the holding of this Court in Clayton v. State, Tex.Cr.App., 502 S.W.2d 755, as appellant contends. We further find the same admonition as in Alford v. State, 505 S.W.2d 813, was followed when the court instructed the jury not to consider that portion of the prosecutor’s argument relating to the death penalty.

Next, appellant charges “the trial court erred in overruling the defendant’s objection to the improper, prejudicial and inflammatory argument of the State’s attorney, who claimed the defendant was lying after taking the oath as a witness.”

During the course of his argument, the prosecutor discussed the evidence which had been introduced and then compared it to appellant’s testimony.

The prosecutor then argued:

“This man is trying to take advantage of you twelve people. He is trying to take advantage of the justice system in this country and this community. He wants to get up here and say he is talking to you under oath when he is lying between his teeth trying to confuse your thought processes. And maybe it is common at that point, I just don’t know, where people cannot come to the courthouse and get justice. Have we reached the point of no return where we cannot put the Preston Edward Greers away where they belong? The man did it in cold blood. The charge tells us — ”

The objection made was: “We object to it as being highly prejudicial and inflammatory.”

Recently in Winkle v. State, Tex.Cr. App., 506 S.W.2d 891, we said:

“When the first question was asked, appellant’s objection was that it was ‘highly prejudicial.’ At no time was the trial court’s attention directed to the complaint now raised on appeal that the prosecutor was improperly seeking to elicit evidence of extraneous offenses. While the questions were improper under the circumstances, appellant’s general objection was not sufficient to preserve the matter for review.”

Regardless of the sufficiency of the objection, we address ourselves to the two cases upon which appellant relies. In Lopez v. State, Tex.Cr.App., 500 S.W.2d 844, the prosecutor struck at the accused over the shoulders of his counsel when he told the jury that the lawyers knew they were lying when they entered a plea of not guilty for the accused. The Court cited in support of its conclusion Crutcher v. State, supra, which also dealt with an attack upon counsel for the accused.

In Seay v. State, Tex.Cr.App., 395 S.W. 2d 40, the Court concluded that the case should be reversed before it reached the portion of the opinion upon which appellant relies. The opinion ended with the caveat, “We further observe that upon another trial of this cause the prosecutor should not be allowed to refer to appellant in such caustic language as ‘here is a man on his oath to God. He lies on his oath to God.’ ”

Since neither of the cases relied upon by appellant mandates a reversal of this conviction, we must address ourselves to the problem of whether or not reversible error is reflected whenever the prosecutor, basing his conclusion on the accused’s testimony, refers to him as a liar.

We reiterate. Appellant’s testimony was clearly contrary to the preponderance of the evidence which had been introduced by the State. When this situation exists, it is not reversible error for the prosecutor to argue that the facts of the case prove that the accused was not telling the truth. There should be no different rule for discussion of the appellant’s testimony than that of any other witness. It is not contended that it would be error for the prosecutor to conclude in his argument that a witness for the defense had not been telling the truth.

Grounds of error five, six and eight involve a photograph of deceased introduced into evidence. Appellant contends that the photograph was inflammatory and highly prejudicial, that the State failed to lay a proper predicate by showing that the photo represented what it purported to represent, and that the State failed to show a proper chain of custody of the photo.

The photo in question, identified by Officer Gibson, which showed the deceased after the homicide, was admissible under this Court’s holding in Martin v. State, Tex.Cr.App., 475 S.W.2d 265. See also Brown v. State, Tex.Cr.App., 508 S. W.2d 91, and Clay v. State, Tex.Cr.App., 505 S.W.2d 882. Officer Gibson testified that he arrived at the scene of the homicide shortly after its occurrence and found the deceased dead on a bed in the bedroom and that the photo in question represented a picture of deceased on the bed. Any further question regarding the predicate and the chain of custody of the photograph goes to the weight rather than the admissibility of the exhibit. See De Leon v. State, Tex.Cr.App., 505 S.W.2d 288, and Anderson v. State, Tex.Cr.App., 504 S.W. 2d 507.

Appellant’s last six grounds of error charge the State failed to show a proper chain of custody for the admission of “a shotgun”, “cartridges”, “ammunition”, “shotgun shells”, “a needle and syringe”, and “a revolver”, found at the scene of the homicide. Assuming appellant properly objected to the admission of these items on the ground he now urges, the record re-fleets Officer Gibson identified each of these items and testified that they were recovered, in his presence, from the scene of the homicide. Any questions regarding these items therefore goes to their weight rather than their admissibility. De Leon v. State, supra, and Anderson v. State, supra.

Finding no reversible error, the judgment is affirmed.


text:
    Rafael RUIZ, Appellant, v. The STATE of Texas, Appellee.
    No. 49739.
    Court of Criminal Appeals of Texas.
    June 11, 1975.

      Abel Toscano, Jr., Harlingen, for appellant.
    Fred Galindo, Dist. Atty., Peter C. Gil-man, Asst. Dist. Atty., Brownsville, Jim D. Vollers, State’s Atty. and David S. Mc-Angus, Asst. State’s Atty., Austin, for the State.
   OPINION ON THE APPELLANT’S MOTION FOR REHEARING

DALLY, Commissioner.

Our prior opinion is withdrawn. This is an appeal from a conviction for the offense of murder; the jury assessed the appellant’s punishment at imprisonment for fifteen years. The appellant complains that: evidence of an extraneous offense was erroneously admitted; the jury was improperly instructed concerning the purpose for which the extraneous offense was admitted; there was a failure to instruct the jury at the guilt-innocence stage of the trial on the definition of murder with malice, murder without malice, and on specific intent to kill.

The extraneous offense about which complaint is made is the appellant’s alleged rape of the deceased’s daughter. During the cross-examination of the appellant he denied that he had raped the deceased’s daughter. During the State’s rebuttal the daughter testified that the appellant had raped her when she was sixteen years old, and that this had caused her to run away from her home where the appellant was living with her mother.

The appellant was indicted and tried for the offense of murder with malice of Sara Castillo who he testified “was my woman.” The offense was alleged and proved to have been committed on August 4, 1973. While he was lawfully married to another woman the appellant lived with Sara Castillo for over five years; then he and Sara Castillo separated about one year before her death. The appellant by his testimony implied that his separation from Sara Castillo was caused by her having an affair with Napoleon Ruiz. The appellant testified that between 6:00 and 7:00 a. m. on the morning of her death he saw Sara Castillo leaving the office of Napoleon Ruiz clothed in a kimono. He saw Ruiz get in his pickup and drive away and Sara Castillo get in her vehicle and drive away. The appellant followed Sara Castillo; when he drove alongside of her car she rolled the window down and shouted: “If you don’t like it, you dumb ass,” and then laughed. The appellant testified this made him feel tense and “I lost my feeling and then I took out the gun and I shot her just to scare her so to speak.” The appellant also testified that Sara Castillo’s daughter had told him that her mother had been seeing Napoleon Ruiz.

This testimony concerning his reason for the separation and the relationship between the parties was admissible to show the appellant’s state of mind at the time he shot the deceased. See Art. 1257a, Vernon’s Ann.P.C. From the evidence offered by the appellant, not all of which has been summarized, it appears he was either seeking an acquittal on the defense of insanity or a reduction of the punishment by showing that the alleged murder was committed without malice. The appellant was attempting to show that his act in shooting the deceased was done in sudden passion or while he was rendered insane by the deceased’s affair with Napoleon Ruiz. The rule applicable to the complained of testimony has been well stated as follows:

“It is always relevant and admissible for either the State or defendant to show the sexual, illicit, or companiable relationship existing between the defendant or the deceased and a third party, as well as each other, when such fact tends to show motive or shed light on the transaction and issue. When such testimony is gone into by either party in a proper manner, the other party may, where he is able to do so, rebut such testimony.” [Numerous citations omitted.] 4 Branch’s P.C.2d ed. 558-559, Sec. 2201.

It is the State’s theory supported by the deceased’s daughter’s testimony that Sara Castillo separated from the appellant because he raped her daughter, and that his act in shooting the deceased was deliberate and in revenge for “throwing him out of the house.” This testimony of the daughter was admissible and the cross-examination of the appellant was legitimate to rebut the testimony the appellant offered to show his relationship with the deceased and his state of mind at the time the deceased was shot. Art. 1257a, V.A.P. C., and see Sherman v. State, 428 S.W.2d 338 (Tex.Cr.App.1968). The complained of evidence was admissible even though it showed an extraneous offense. Since the admission of the evidence was proper to rebut that offered by the appellant, there was no need for a charge limiting the jury’s consideration of the testimony. The error in giving a charge limiting the jury’s consideration of the testimony to impeachment purposes was an error against the state and the appellant is therefore in no position to complain. See Sherman v. State, supra. During the trial the appellant asked the Judge to limit the jury’s consideration of the testimony and a limiting instruction was given, and then the court submitted a written limiting instruction. The appellant’s objection to such charge did not indicate why he thought it was defective. No error is shown.

Next we will consider the appellant’s complaint that the trial court refused to charge the jury at the guilt-innocence stage of the trial on the definition of malice aforethought and murder without malice. The court did charge the jury on murder with and without malice at the punishment stage of the trial. In Brazile v. State, 497 S.W.2d 302 (Tex.Cr.App. 1973), it was said:

“All voluntary killings are murder, and the presence or absence of malice relates only to the punishment. Thus it would appear proper to submit the issue of malice only during the punishment stage.”

See also Foster v. State, 493 S.W.2d 812 (Tex.Cr.App. 1973), and the cases there cited. Cf. Marrero v. State, 500 S.W.2d 818 (Tex.Cr.App. 1973); Jones v. State, 504 S. W.2d 906 (Tex.Cr.App.1974); Carver v. State, 510 S.W.2d 349 (Tex.Cr.App.1974); Rodriguez v. State, 513 S.W.2d 594 (Tex. Cr.App.1974); Armentrout v. State, 515 S.W.2d 297 (Tex.Cr.App. 1974). The court did not err in refusing to instruct the jury on the law of murder with and without malice at the guilt-innocence stage of the trial.

We will now consider the appellant’s remaining complaint that the court erroneously refused to charge the jury on specific intent to kill. When a weapon deadly per se is used in a deadly manner and death results, even though the defendant testifies that he did not intend to kill the victim, there is no need to give a charge on specific intent to kill or aggravated assault. Art. 45, V.A.P.C.; Had-not v. State, 110 Tex.Cr.R. 109, 7 S.W.2d 566 (1928); Barr v. State, 146 Tex.Cr.R. 178, 172 S.W.2d 322 (1943); Smith v. State, 411 S.W.2d 548 (Tex.Cr.App. 1967) ; Schulz v. State, 446 S.W.2d 872 (Tex.Cr. App.1969); Dickson v. State, 463 S.W.2d 20 (Tex.Cr.App.1971); Stallings v. State, 476 S.W.2d 679 (Tex.Cr.App.1972); Gam-blin v. State, 476 S.W.2d 18 (Tex.Cr.App. 1972); Stills v. State, 492 S.W.2d 478 (Tex.Cr.App.1973); Hargrove v. State, 501 S.W.2d 878 (Tex.Cr.App.1973).

In Baylor v. State, 151 Tex.Cr.R. 365, 208 S.W.2d 558 (1948), it was said:

“It is well settled that when the weapon used in effecting an unlawful killing is a deadly weapon, per se, the intent to kill is presumed, as a matter of law. Hence, in such cases, no charge is required as to the intent to kill — and this, even though the accused testifies to a lack of intent to kill. Art. 45, P.C.; Miller v. State [112 Tex.Cr.R. 125, 13 S.W.2d 865 (Tex.Cr.App.1929)]; Barr v. State, 146 Tex.Cr.R. 178, 172 S.W.2d 322, and authorities there cited.”

In prosecutions for assault with the intent to murder, unlike prosecutions for murder, if the defendant testifies he did not intend to kill the victim even though the weapon used is a weapon deadly per se used in a deadly manner it is necessary to charge the jury on specific intent to kill and on aggravated assault if there is a proper request for these charges. Art. 45, V.A.P.C., does not apply if the attack does not result in death and the use of a weapon deadly per se in a deadly manner raises only a rebuttable presumption of fact. Watts v. State, 151 Tex.Cr.R. 349, 207 S. W.2d 94 (1947); Barr v. State, supra; Thompson v. State, 521 S.W.2d 621 (Tex. Cr.App.1974).

In Watts v. State, supra, where the prosecution was for assault with the intent to murder, it was said:

“In the light of appellant’s affirmative testimony that he did not intend to kill the injured party but fired only in self defense and to stop the injured party, together with the other facts in evidence, we are constrained to conclude that appellant was entitled to have the jury instructed, in accordance with his request, to the effect that if he shot with no intent to kill, he could not be guilty of assault with intent to murder.
* * * * * *
“. . . It must be remembered that the intent to kill is an essential element of the crime of assault with intent to murder, without which that offense is not made out. Also, the propriety or necessity of giving defensive instructions in a criminal case rests alone upon whether there be testimony raising such issues. The source from which the testimony comes cannot be looked to. This has always been the rule, although the issue is raised solely and alone by the testimony of the accused. The rule is founded upon the proposition that the weight to be given to the testimony rests alone with the jury. In order that no confusion might arise, it should be pointed out that the rule here announced appears to be different where death results and the prosecution is for murder. See Hadnot v. State, 110 Tex.Cr.R. 109, 7 S. W.2d 566; Barr v. State, 146 Tex.Cr.R. 178, 172 S.W.2d 322.”

The present prosecution is for murder; although the appellant testified he only intended to “scare” the deceased he admitted shooting at her at close range with a pistol. A pistol is a weapon deadly per se. Hargrove v. State, supra; Valle v. State, 438 S.W.2d 583 (Tex.Cr.App.1969) ; Taylor v. State, 470 S.W.2d 693 (Tex.Cr. App.1971); Barr v. State, supra; Stills v. State, supra.

It follows that the court did not err in refusing to submit to the jury the specially requested charge on the specific intent to kill.

The appellant’s motion for rehearing is overruled and the judgment is affirmed.

Opinion approved by the Court.

      . Art. 45, Y.A.P.O., provides:
      “The intention to commit an offense is presumed whenever the means used is such as would ordinarily result in the commission of the forbidden act.”
      Compare with V.T.C.A., Penal Code, Sec. 2.05.


author: GREEN, Commissioner.

text:
    Sherman W. COX, Appellant, v. The STATE of Texas, Appellee.
    No. 49913.
    Court of Criminal Appeals of Texas.
    May 28, 1975.

      Melvyn Carson Bruder, Dallas, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., and Jon Sparling, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of unlawful sale of an unregistered security. Punishment was assessed by the court at one and a half years in the Department of Corrections and a fine of $1,000.00.

There is no complaint regarding the sufficiency of the evidence to support the verdict. Briefly, the facts are that appellant sold to complainant Karl F. Kuby a share in a venture in the nature of a mutual fund for $1,000.00. The arrangement, as reflected in the record, was that appellant was to manage the fund composed of Kuby’s and other subscribers’ money by dealing in bonds, stock and other securities. Appellant was to receive 50% of the profits from the venture with the remaining 50% to be distributed from time to time among the investors. The venture failed, and the investors lost their investment. Appellant was not a registered dealer, and the profit sharing and participating agreement was not registered, as required by Article 581-7, Vernon’s Ann.Civ.Stats. of Texas.

In his first ground, appellant contends that the indictment is fundamentally invalid because it does not set out the alleged security in haec verba or otherwise sufficiently describe said security.

The indictment contained four counts, but only the first count was submitted to the jury. It charged that on or about January 16, 1967, in Dallas County,

“ . . . Sherman W. Cox did then and there unlawfully engage in the business of a dealer in securities, and was then and there a dealer in securities by selling, offering for sale, soliciting subscriptions to and orders for securities, and did then and there sell and offer for sale to Karl F. Kuby and did then and there solicit of and from Karl F. Kuby a subscription to and order for a certain security, to-wit:
“One thousand dollar (1,000.00)'-' investment in and under a profit sharing and participation agreement,
“And said security was issued after the effective date of ‘The Securities Act’ of the State of Texas and was then and there not registered by notification by and with the Securities Commissioner of the State of Texas, and then and there no permit for the sale of said security had been granted by the Securities Commissioner of the State of Texas, all as is provided by law in such cases and the said security was not then and there a duly registered security, duly registered as such by and with the Securities Commission of the State of Texas.”

Appellant filed no motion in the trial court to quash the indictment, and this complaint is raised for the first time on appeal. Consequently, only such contentions cognizable under Article 27.08, Vernon’s Ann.C.C.P., to-wit, that the indictment fails to allege the constituent elements of the offense, are before this Court. American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598; Terry v. State, Tex.Cr.App., 517 S.W.2d 554; Peterson v. State, 508 S.W.2d 844.

In Shappley v. State, Tex.Cr.App., 520 S.W.2d 766, this Court held that an indictment charging the defendant with selling securities without having been registered as a dealer or salesman need not allege the security sold in haec verba, and that the description alleged was sufficient. A motion to quash had been filed in the trial court and overruled.

We conclude that the description of the security in the instant case, although not as specific as that in Shappley, supra, was sufficient in the absence of a motion to quash ⅛ that said description, together with the other allegations contained in the indictment, alleged the constituent elements of the offense of an unlawful sale of an unregistered security. American Plant Food Corporation v. State, supra; Terry v. State, supra.

The first ground of error is overruled.

Appellant next complains that the trial court improperly admitted certain opinion evidence by State’s witness Wright to the effect that the document in question was, in fact, a security over objection that the term “security” was defined by law, and that any evidence Wright would give would invade the province of the jury.

Wright testified that he was a Senior Examiner with the State Securities Board, and outlined his duties and his qualifications and expertise with respect to the regulation of securities. He was also an attorney-at-law. No attack is made upon his qualifications in the field of securities.

Over the sole objection that the witness “would be substituting his answer for that of the jurors,” Wright was permitted to testify that “Well, a security generally is where someone is putting up some money hoping to get a profit from it and the security is the instrument that represents, well, a certificate or whatever it is that represents the interest he holds in whatever program that he hopes to get a profit from.”

Over the same objection, he was also permitted to testify that the document in question representing the agreement between appellant and complainant Kuby was a security.

There was no objection in the trial court that the question called for a conclusion of law, and this point is not before us for review. Burrow v. State, Tex.Cr.App., 481 S.W.2d 895.

Furthermore, the witness qualified as an expert in the field of securities and as a lawyer, and the subject of the inquiries was well within the scope of his competency and expertise.

The questions to which objections were made were not subject to the sole objection made in the trial court. See Hopkins v. State, Tex.Cr.App., 480 S.W.2d 212, in which this Court recognized that “for all practical purposes, the ‘invasion of the province of the jury’ rule is and has long been dead.” Boyde v. State, Tex.Cr. App., 513 S.W.2d 588 at p. 590.

The second ground of error is overruled.

Appellant next contends that the State failed to prove that “the transaction charged in the indictment was not exempt pursuant to Article 581-5(1), Vernon’s Ann.Civ.Stats, of Texas.”

Article 581-5(1), supra, provides exemption for the sale of any security by the issuer so long as the total number of security holders does not exceed 35 and the sale is made without any public solicitation.

In construing this portion of the statute, the Court, in Dean v. State, Tex.Cr.App., 433 S.W.2d 173, 178, said:

“Since the exemption provided in Article 581-5.1(a), supra, is not contained within the body of the definition of the offense (Art. 581-29, supra), the State was not required to negative the exemption as one of its elements of proof. See Bridges v. State, 172 Tex.Cr.R. 508, 360 S.W.2d 531, cert, denied, 371 U.S. 821, 83 S.Ct. 38, 9 L.Ed.2d 61; See Salazar v. State [Tex.Cr.App.], 423 S.W.2d 297 (1968). The burden rested with appellant to raise this exemption defense; then, if raised, the burden shifted to the State to disprove such defense beyond a reasonable doubt.”

The court submitted to the jury the issue of whether the offer for sale of the security was made without any public solicitation. No objection was raised by appellant to the manner in which it was submitted.

Appellant contends that the evidence establishes, as a matter of law, that the sale to Kuby was made without public solicitation and, therefore, was exempt under Article 581-5(1), supra. The record shows otherwise.

The record reflects that appellant met complainant Kuby at the latter’s delicatessen shop. Almost every time thereafter that appellant came in the shop, he would boast about being an expert in the stock market, that he had studied stocks, “and that he had really found a way how he can predict which way a stock would go.” In November, 1966, he told Kuby he was forming a joint venture, showing him a number of “graphs and charts” concerning stocks and bonds, to explain “what an expert he had become.” He also explained technical stock market terms, such as, “puts” and “calls,” and other terms, and told Kuby that he had interested a number of other persons in his joint venture who had put money in it, and “that he had some of his own money in this joint venture, and what he was trying to do is buy stocks and sell them where we would share into the profits, and if we would have any lawsuits he would share half of them, too.”

The record reflects additionally that in a similar manner he solicited others to enter the joint venture, as shown by the testimony of Henry Ashe, Warren Findley, James L. Bothe, Eugene Zumbaum, and Hugh Wright. Several of these witnesses testified that in conversations with appellant, “He convinced me of his ability to make money in the market” and “He convinced me that he couldn’t lose.” By virtue of his solicitations with these and other people, he was able to persuade them to “invest” money in his “joint venture” and to purchase securities along with complainant.

Appellant agrees in his brief that he met with at least thirteen persons and exhibited his plats and charts plotting the rise and fall of various publicly traded stocks. The record shows that each of them ultimately invested money in his scheme.

The evidence raises a fact issue of public solicitation, and was properly submitted to the jury. Dean v. State, supra; Birch-field v. State, Tex.Cr.App., 401 S.W.2d 825.

The third ground of error is overruled.

In his fourth ground, appellant complains of jury argument of the prosecuting attorney.' The only objection made to the complained of argument was a general objection and amounts to no objection at all. Lamberson v. State, Tex.Cr.App., 504 S.W.2d 894; Patterson v. State, Tex. Cr.App., 509 S.W.2d 857. No reversible error is shown.

In his fifth ground, appellant alleges error in the court’s refusal to permit him to cross-examine State’s witness Ashe “regarding his bias and prejudice towards the defendant.”

Appellant’s complaint is that he “sought to adduce before the jury that Henry Ashe asserted in a civil law suit that the defendant had removed all the profitable investments from the investors’ portfolio for his personal benefit.”

Ashe was one of those who had invested money in the joint venture. Appellant sought to introduce the petition in a civil law suit Ashe and others had filed against appellant growing out of this venture. In a hearing out of the presence of the jury, Ashe denied that the petition alleged that appellant had removed all the profitable investments from the investors’ portfolio for his personal benefit. The petition, which is in the record of a bill of exceptions, does not contain this allegation. Appellant does not contend that the petition which he sought to introduce in evidence contained any statement which could be used for impeachment purposes.

The fact that a witness has brought a civil suit against the defendant growing out of the same incident is admissible as tending to show interest and bias. Rhodes v. State, Tex.Cr.App., 387 S.W.2d 413 ; Blake v. State, Tex.Cr.App., 365 S.W.2d 795.

In the instant case the fact of the filing of the civil law suit was before the jury. Under the circumstances as shown the court did not err in refusing to admit the pleading in evidence. See Barker v. State, Tex.Cr.App., 509 S.W.2d 353; Brooks v. State, Tex.Cr.App., 475 S.W.2d 268; Acker v. State, Tex.Cr.App., 421 S.W.2d 398.

The judgment is affirmed.

Opinion approved by the Court.

      . Although the motion for a new trial was overruled and appellant was sentenced on November 29, 1969, the record was not approved in the trial court until September 12, 1974. The record was filed in this Court on February 19, 1975. We are at a loss to understand the necessity for such lengthy delay.

      . Article 581-29 (B), Vernon’s Ann.Civ.Stats. of Texas.

      . See Bruner v. State, Tex.Cr.App., 463 S.W. 2d 205, 212, in effect approving the statement in S. E. C. v. W. J. Howey Co., 328 Ü.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244, that “ ‘ . . . an investment contract for the purposes of the Securities Act means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party, it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical assets employed in the enterprise. * * * 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. If that test be satisfied, it is immaterial whether the enterprise is speculative or non-speeulative or whether there is a sale of property with or without intrinsive (sic) value.’ ”


text:
    Francisco RESENDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 49912.
    Court of Criminal Appeals of Texas.
    May 28, 1975.

      Bruce J. Ponder, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., and Anita Ashton, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of burglary of a private residence at night. The punishment, enhanced under the provisions of Article 63, Vernon’s Ann.P.C., is life imprisonment. The appellant urges that evidence obtained by an unlawful search was erroneously admitted, the evidence is insufficient to support the conviction, the court erred in refusing to dismiss the enhancement paragraphs of the indictment, and the court erroneously refused to grant a new trial when jury misconduct was proved.

Prior to September 20, 1973, El Paso police officers had information that stolen goods were being received and concealed at 1322 Wright Street, and on September 20th the officers set up a surveillance at that address which was the residence of Jesus Erives. The officers stationed themselves on the third floor of a school building where they could observe Erives’ house at approximately 7:00 p. m. when it was “just getting dark.” At 11:10 p. m. the officers saw the appellant and Danny Garcia come to Erives’ residence in a 1963 model white four-door Ford Fairlane automobile. The two men got out of the automobile and went up to Erives’ house. The two men returned to the automobile in about half an hour and left.

On the evening of September 21st, at approximately 9:30 p. m. Officer Turner of the El Paso Police Department, who apparently was unaware of the surveillance being conducted on Erives’ house, stopped a white Ford Fairlane automobile for a traffic violation. The driver did not have an operator’s license and represented to the officer that his name was Carlos Montoya. Turner testified that the appellant was a passenger in the automobile. Turner later learned that the man who told him his name was Carlos Montoya was actually Daniel Garcia. While the car was stopped its driver opened the trunk, and Officer Turner observed-that there was nothing in the trunk except a spare tire and a jack.

At approximately 12:30 a. m., September 22nd, the officers who had Erives’ residence under surveillance saw the appellant and Danny Garcia come to the Erives’ house in the same car they had been in the night before. They walked to the entrance of the house, stayed about one minute, and returned to their automobile. The appellant and Garcia were seen to remove what appeared to be a gun in a case and other smaller items from the trunk of the automobile and carry them into Erives’ house. The officers who had the house under surveillance called other officers who were nearby, and they surrounded Erives’ house. One of the officers, as he approached the house, heard a voice which he was later able to identify as that of the appellant say: “That is all we could get.” When the appellant and Garcia came out of the house they were arrested.

One of the officers knocked on the door. Although the evidence is in conflict as to whether Erives asked the officers to come in or they asked him to come outside, he did come outside and get in a police automobile. When one of the officers said he could get a search warrant to search Er-ives’ house, Erives said that he had nothing to hide and that the officers didn’t need a search warrant to search the house. Erives testified he then voluntarily signed a consent form giving the officers permission to search his house. The officer testified that he advised Erives of his constitutional rights and that he did not have to sign the form consenting to the search. The officers entered the house, and one of them saw a rifle case protruding from under the couch 'in the living room and upon searching found that it contained a rifle. They also found a handgun with a holster and two cameras under the couch. Erives testified that the appellant and Garcia brought the guns and cameras to his house for him to keep for them.

The officers took the property believing it was stolen property, but since they had no complaint and did not know who owned the property they released the appellant, Garcia, and Erives from custody. One of the cameras contained film. The film found in the camera was developed, and it revealed the picture of a young woman. At the officers’ request a local television station showed the picture of the young woman on September 25th. A friend of Mrs. Wesley Albert recognized the picture shown on television to be Mrs. Albert and called her. Mrs. Albert and her husband then found that a rifle, a pistol, two cameras, and other property were missing.

The picture of Mrs. Albert had been taken by her husband on her birthday, September 15, 1973. On September 21st at about 7:30 p. m. the Albert family had gone to a friend’s home to help the friend celebrate her birthday. The Alberts played cards with their friends and returned home at about 11:30 p. m. Mr. Albert remembered that after they had entered the house when they came home on that night he thought he had heard the latch moved on a gate near the back door. Mrs. Albert remembered that on September 21st she had placed some pennies in a pickle jar which was kept in a bedroom closet. On September 22nd she did not see the jar in its usual place when she went to get her sewing kit which she kept close to the pickle jar in the closet. She did not become overly concerned about it; she thought she might not have returned the jar to the closet. On September 25th, after they had heard about Mrs. Albert’s picture being on television, the Alberts contacted the police department and identified the property which had been taken. The other items which were recovered had been kept in the same bedroom where the pennies in the pickle jar had been kept. Pry marks were found on the back door, and a large piece of wood was missing on the back door.

The appellant urges that the search of Erives’ house was unlawful because his consent to the search was unlawfully obtained and that the evidence found was erroneously admitted. Without making the determination, although there is considerable doubt, we will assume that the appellant has standing to complain of the search of Erives’ house. See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). There is no evidence here that force was used to obtain the consent to search as there was in Pa-prskar v. State, 484 S.W.2d 731 (Tex.Cr. App.1972), nor as in Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973), both relied upon by the appellants. This Court has held that the totality of the circumstances must be considered to determine whether the Fourth Amendment right to be free from an unreasonable search and seizure has been waived by consent to a search, but the burden is upon the State to prove such waiver. The circumstances here presented when considered in their totality are stronger in showing a“ consent to search than they were in Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1973), where it was said: “. . .we refuse to hold, as a matter of law, that an assertion by the officer conducting the search that he could or would obtain a search warrant if consent is refused, standing alone, invalidates an otherwise voluntary consent.” See also Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and Hoover v. Beto, 439 F.2d 913 (5th Cir. 1971).

The first ground of error is overruled.

In his second ground of error the appellant contends that the State failed to prove an essential element of the offense; that is, that the burglary occurred during the nighttime. Nighttime insofar as it relates to burglary is any time of the twenty-four hours from thirty minutes after sunset until thirty minutes before sunrise. Parrish v. State, 138 Tex.Cr.R. 150, 134 S. W.2d 271 (1939); Lee v. State, 459 S.W. 2d 851 (Tex.Cr.App.1970). See Article 1396, V.A.P.C. The jury in this case was instructed on the definition of nighttime and on the law of circumstantial evidence. The Alberts testified that they were not at home from 7:30 to 11:30 p. m., September 21st. Two officers testified that they saw the appellant take the stolen property from the trunk of a white Ford at approximately 12:30 a. m. on September 22nd. Officer Turner testified that he had stopped the same white Ford with the appellant and Garcia in it. The stop occurred at 9:30 p. m., September 21st, and was for a traffic violation unconnected to the present offense. Officer Turner testified that he shined his light inside the car and that the driver opened the trunk while he was present. In neither place did he see any of the stolen property.

Mrs. Albert testified that she had placed a jar of pennies on her closet shelf before going out the evening of the 21st and that she missed the jar the following morning. The judge, near the end of the trial, sustained the appellant’s objection to the admission of the jar of pennies into evidence and instructed the jury not to consider it. Although the jar of pennies was not admitted into evidence, Mrs. Albert’s testimony that the jar had been stolen and when it was last seen may be considered and is of some probative value in determining when the guns and cameras that were in the same room were stolen. We find the evidence, although circumstantial, sufficient to allow the jury to find the burglary was committed during the nighttime. Cf. Clark v. State, 140 Tex.Cr. R. 25, 143 S.W.2d 378 (1940); Lang v. State, 138 Tex.Cr.R. 467, 136 S.W.2d 833 (1940).

The ground of error is overruled.

In his third ground of error it is the appellant’s contention that Article 63, V.A.P.C., is arbitrarily and capriciously applied in El Paso County and therefore the statute as applied is unconstitutional. Article 63, V.A.P.C., provides:

“Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.”

This ground of error is based on a motion to dismiss the enhancement provisions of the indictment and the testimony of an Assistant District Attorney who was called as a witness to support the allegations in the motion to dismiss. The sum and substance of the Assistant District Attorney’s testimony is contained in the answer to one question. He testified:

“The statement I made to you, Mr. Ponder, was in all situations where there are two prior felonies the office does not automatically request habitual indictments. Each case is investigated for the merits of the case. The background and the prior criminal record of the defendant are checked into. The reason that I gave you that we are pursuing an habitual indictment in this case is that the defendant in this case has some five prior felony convictions.”

Later on the prosecutor corrected his testimony by stating that the “rap sheet” revealed that the appellant had been convicted on three rather than five prior occasions. This evidence falls far short of showing that Article 63, V.A.P.C., is arbitrarily and capriciously applied in El Paso County. Therefore, we need not further consider the appellant’s ⅛ground of error because it is not supported by evidence in the record. See Thrash v. State, 500 S. W.2d 834 (Tex.Cr.App.1973), where the same contention was overruled.

The ground of error concerning jury misconduct is without merit since it finds no support in the record. The appellant’s motion for new trial which alleges jury misconduct was timely filed on April 19, 1974. However, the motion was not amended and the original motion was not heard and acted upon until May 17th. When the motion was to be heard the Assistant District Attorney called the court’s attention to Article 40.05, Vernon’s Ann.C. C.P., which provides that a motion or amended motion for new trial shall be determined by the court within twenty days. The prosecutor then cited Steward v. State, 422 S.W.2d 733 (Tex.Cr.App. 1968). In Steward v. State, supra, this Court said the motion for new trial was overruled by operation of law, prior to such hearing, when not acted upon during the twenty days allowed by Article 40.05, V.A.C.C.P. See also Grimes v. State, 171 Tex.Cr.R. 298, 349 S.W.2d 598 (1961); St. Jules v. State, 438 S.W.2d 568 (Tex.Cr.App.1969); Roberts v. State, 493 S.W.2d 849 (Tex.Cr. App.1973); Jones v. State, 501 S.W.2d 677 (Tex.Cr .App. 1973).

The ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


author:
ODOM, Judge.
      ONION, Presiding Judge

text:
    James WRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 49756.
    Court of Criminal Appeals of Texas.
    May 28, 1975.
    Rehearing Denied June 18, 1975.

      William T. Wilson, Temple, for appellant.
    Joe Carroll, Dist. Atty., and Paul R. Reagan, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., and David S. Mc-Angus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a revocation of probation.

On March 9, 1972, appellant was convicted of sale of marihuana, punishment was assessed at ten years, and appellant was placed on probation. After being on probation for over two years, probation was revoked and punishment was reduced to seven years.

The State alleged three violations of probation and the court revoked probation after finding appellant had committed each of the three violations. Appellant in his three grounds of error asserts the trial court abused its discretion in each finding of a violation because the evidence was insufficient. If there was sufficient evidence to support any one of the three violations, the trial court did not abuse its discretion and the order revoking probation will be affirmed.

The first ground alleged, and upon which probation was revoked, was:

“The defendant, James Wright, violated condition no. 1 of the said probation in that he violated the law of this state, to-wit: on the 13th day of January, 1973, he committed the offense of swindling by worthless check by giving his check on The Peoples National Bank in the amount of $17.17 to H. E. Butt Food Store #71, Inc. a corporation, with intent to defraud, knowing that he did not have sufficient funds on deposit in said bank to pay the check and that the said defendant was convicted for the above offense in Cause no. C73-1082C on the docket of the County Court-at-law of Bell County, Texas, on the 4th day of April, 1973.”

As evidence to support this allegation the State introduced papers from cause C73-1082C, including the judgment of conviction, and official copies of state records bearing appellant’s name, address, signature and photograph, for the asserted purpose of showing the identity of appellant as the same person convicted in cause C73-1082C. This documentary evidence, however, has not been brought forward in the record on appeal sent to this Court.

Because such documents are not as a matter of law insufficient to show a violation of the terms of probation, but to the contrary may have been sufficient (see McClure v. State, Tex.Cr.App., 496 S.W.2d 588; Bennett v. State, Tex.Cr.App., 476 S.W.2d 281; Johnson v. State, Tex.Cr. App., 410 S.W.2d 785; Smothermon v. State, Tex.Cr.App., 383 S.W.2d 929), appellant’s failure to secure their presentation for review by this Court precludes us from any finding but that the evidence was sufficient. Accordingly, the trial court did not abuse its discretion in finding that appellant violated the terms of his probation by committing an offense against the laws of this State.

The order of revocation is affirmed.

ONION, Presiding Judge

(dissenting).

While appellant should have seen that the exhibits were included in the record, I cannot agree that the record, as it now appears, supports the revocation order. It does not show that the appellant committed the offense as alleged in the motion to revoke probation. The State offered no proof showing the commission of the alleged offense, but relied only upon instruments reflecting a conviction. At the commencement of the revocation hearing, the State introduced the complaint, information, waiver of rights and “judgment of conviction” in Cause #C-73-1082-C with the prosecutor stating, “This conviction was of James D. Wright, address Route 1, Box 200, Belton, Texas.” Whether this was the prosecutor’s unsworn testimony or whether reference was made to something in the instruments referred to above is not clear. If there was a sentence in Cause #C-73-1082-C, it does not appear to have been offered. The State also offered a certified copy of an operator’s license from the Department of Public Safety, along with a photograph. The prosecutor stated it was the driver’s license of James Darwin Wright, Route 1, Box 200, Belton, Texas. The prosecutor stated the court could compare the photograph with the individual “on trial” and noted that the exhibit containing the papers of the conviction and the operator’s license had the same name and address. The court was further asked to compare signatures on papers in both exhibits and subsequently was asked to compare these signatures with the one on the order granting probation in the instant case under the provisions of Article 38.27, Vernon’s Ann.C.C.P.

Appellant in his argument to the trial court stated that there was no evidence offered to prove the appellant was the man actually convicted as alleged and no evidence had been offered as to the commission of the offense.

The court, in revoking probation, stated the name and address were the same on the first two exhibits, the signatures had been compared and appeared to be the same, the photograph appeared to be that of the appellant.

We have continuously reiterated our caution to trial judges as to the inadvisability of relying exclusively upon evidence of a conviction to support a violation of a probationary condition prohibiting the commission of a penal offense. Spencer v. State, 503 S.W.2d 557 (Tex.Cr.App.1974); Cannon v. State, 479 S.W.2d 317 (Tex.Cr. App.1972); Mason v. State, 438 S.W.2d 556 (Tex.Cr.App.1969); Scott v. State, 516 S.W.2d 196 (Tex.Cr.App. 1974). See also Jansson v. State, 473 S.W.2d 40 (Tex.Cr. App.1971). Cf. Harris v. State, 169 Tex. Cr.R. 71, 331 S.W.2d 941 (1960). A review of the above cases will indicate some of the inherent problems in relying solely upon proof of a conviction to reflect the commission of an offense, which is the normal probationary condition imposed and alleged violated, and as was true in the instant case. This court’s admonitions are not always heeded, thus presenting continuing problems.

In the instant case the court stated the photograph on the operator’s license exhibit appeared to be that of the appellant, but this did not prove that the appellant was one and the same person convicted in Cause #C-73-1082-C. The only relation between the operator’s license exhibit and the exhibit concerning the papers of Cause #C-73-1082-C was the similarity in name and apparent address.

In Elizalde v. State, 507 S.W.2d 749 (Tex.Cr.App.1974), this court wrote:

“The State also argues that since the prison packet of the proceedings of the prior trial was admitted in evidence without objection, appellant cannot complain of its contents, and no further proof of identity was necessary. The prison packet was admitted as proof of a prior conviction of the defendant named therein. It is not evidence that, although the name is the same, the defendant there named is the appellant in the instant case. Cain v. State, Tex.Cr.App., 468 S.W.2d 856; Vessels v. State, Tex.Cr.App., 432 S.W.2d 108, 116. The State had the burden of proving that the two defendants were the same person.”

Cain v. State, 468 S.W.2d 856, 859 (Tex.Cr.App.1971), held that where handwriting samples are introduced without expert testimony and the jury alone must make the comparison and there is no other evidence to connect the defendant with a prior conviction such identity has not been sufficiently established. The same rule applies where the Judge is the trier of the facts.

In Cain v. State, supra, the court wrote:

“We cannot construe Art. 38.27 as meaning that mere introduction of a sample of the accused’s signature, coupled with introduction of a signature on records showing a prior conviction, will suffice as independent testimony to prove the identity of the appellant as the person who was so previously convicted.”

Thus, it is clear that if exhibits were before us and were in perfect order and shape revocation could not have been affirmed upon the ground of a showing that appellant had committed a penal offense during the probationary period in light of the evidence offered to prove his identity as the person who was so previously convicted.

The majority opinion states that the documents offered (but not brought forward on appeal) “are not as a matter of law insufficient to show a violation of the terms of probation, but to the contrary may have been sufficient,” citing cases. This is a misleading statement and is one I am sure the majority did not intend to make. I find no cases that hold that documentary evidence of a prior conviction, standing alone, is sufficient to prove up the prior conviction without some admissible form of independent evidence to prove the identity of the accused as the person so previously convicted. In McClure v. State, 496 S.W.2d 588 (Tex.Cr.App.1973), cited by the majority in support of its statement, there was, in addition to the certified copies of the judgment and sentence of a prior conviction, the testimony of an assistant district attorney who was in the courtroom when the accused was convicted of the prior offense. In Bennett v. State, 476 S.W.2d 281 (Tex.Cr.App.1972), also cited by the majority, the defendant testified as to his prior conviction and the State introduced record evidence of the prior Oklahoma conviction. In Johnson v. State, 410 S.W.2d 785 (Tex.Cr.App.1967), in addition to the judgment and sentence of the prior California conviction, there was among the duly authenticated records from California reflecting the conviction a picture of the defendant plus a physical description, including tattoos and missing fingers, and the court concluded the trial court could look at the defendant and conclude he was the same person who had been convicted in California. Johnson, also cited by the majority, presents a close question, but is distinguishable from the instant case in that the photograph here involved was not part of the record evidence of the conviction.

In Smothermon v. State, 383 S.W.2d 929 (Tex. Cr.App. 1964), the last case cited by the majority, the question was not whether the judgment of the prior conviction, standing alone, was sufficient to show the conviction, but whether the evidence reflected it was a final conviction.

For the reasons stated, I cannot agree to the affirmance of this judgment upon the ground decided by the majority. I have examined the record as to the other two alleged violations of probation upon which the trial court based its revocation order and find them equally untenable, and I understand why the majority did not choose to discuss the same.

I dissent.

ROBERTS, J., joins in this dissent.

      . It is provided under Article 567b, Sec. 4(a), Vernon’s Ann.P.C., as amended, that even a first conviction under the statute would carry possible jail imprisonment as a penalty. Henee, a sentence in this misdemeanor case would be required before it would be a final conviction. See Article 42.02, Vernon’s Ann. C.C.P.

      . The revocation motion alleged the violation of a penal law (the giving of a worthless check of $17.17) occurred “on the 13th day of January, 1973.” Such allegation does not prove itself. If the complaint and information in Cause ⅜ C-73-1082-C in the alleged conviction, which are not in the record before us, alleged “on or about the 13th day of January, 1973” and there is no finding in the judgment just when the offense was committed, there may be a question of whether a showing has been made that the offense occurred during the probationary period. See Mason v. State, 438 S.W.2d 556 (Tex.Cr.App.1969). The State is not bound by the “on or about” date alleged in the information, but may prove the offense occurred on some date any time prior to the return of the indictment that is within the period of limitations. Article 21.21 (6), Vernon’s Ann.C.C.P. See also Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383 (1960). Although appellant was placed on probation on March 9, 1972, the statute of limitations for misdemeanors on the dates in question was two years. See Article 12.05, Vernon’s Ann.C.C.P., 1965.


author: DOUGLAS, Judge.

text:
    William ATKINSON, Appellant, v. The STATE of Texas, Appellee.
    No. 49890.
    Court of Criminal Appeals of Texas.
    June 11, 1975.

      David J. Nagle, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Terry Collins, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for theft under the former Code. Punishment was assessed at five years, probated.

The main contention is that the evidence is insufficient to support the conviction.

Appellant was the coordinator of the audio-visual services of the Houston Independent School District from 1965-1972. He planned and supervised the “Summer Film Festival of 1971.” This was an educational program designed for disadvantaged children in the Houston area.

On April 30, 1971, appellant prepared a requisition order for twelve films. The requisition order stated that the films were to be purchased from the Educational Media Productions Company, Inc., for $1500. Educational Media Productions Company, Inc., was registered in the name of appellant’s secretary, Lacomae Anderson. Both appellant and Mrs. Anderson were authorized to withdraw funds deposited in the account of Educational Media Productions Company, Inc.

Six of the films on the requisition order were in the Houston Independent School District film library. Appellant testified that he did not know the films were in the library when he prepared the requisition order on April 30, 1971. On May 26, 1971, his secretary removed the six films from the Houston Independent School District library and gave them to him for use in the Summer Film Festival. Appellant then signed a “purchase order” which stated that the six films had been received from Educational Media Productions Company, Inc. The purchase order was forwarded to the comptroller of the Houston Independent School District for payment. On July 30, 1971, a check was issued to Educational Media Productions Company, Inc., for $1500. This check was deposited in the Educational Media Productions Company’s account and the money was later transferred to appellant and Mrs. Anderson’s joint savings account in the Houston School Teachers’ Credit Union. Appellant testified that he supplied other films and “related materials” to the film festival and that their value exceeded $1500.

Under the first mode of theft under Article 1413, Vernon’s Ann.P.C. (1925 Code), the State had the burden of proving that appellant obtained $50 or more from Houston Independent School District (a) through some pretext; (b) that the pretext was false; (c) that there existed an intent on the part of appellant to appropriate the money at the time he obtained possession thereof; (d) he did so appropriate it to his own benefit. See Ratcliff v. State, 504 S. W.2d 883 (Tex.Cr.App.1974). Further, the State had to prove that the injured party relied upon the false pretext.

Appellant admitted that he knew that six of the twelve films listed in the purchase order were taken from the Houston Independent School District film . library. He also admitted signing the purchase order and submitting it to the comptroller for payment. The $1500 payment for the film rental was deposited in appellant’s account.

Assuming that appellant had furnished his own films for the schol district as he related, this does not entitle him to an acquittal as a matter of law. His conviction was for taking the $1500 on the date in question.

There was sufficient evidence before the jury to support the verdict. Bond v. State, 171 Tex.Cr.R. 119, 345 S.W.2d 520 (1961).

Appellant, in three grounds of error, contends that the court erred in not charging that the false pretext must be the inducing cause which moved the injured party to surrender the property in question, or that the offense of theft by false pretext does not lie if the school district knew or in the exercise of ordinary prudence should have known, at the time it parted with the money, that the pretext was false.

The record reflects that counsel for appellant requested a charge on false pretext as contained in Willson’s Criminal Forms, 7th Ed. The court gave the instruction which included a definition of fraudulent taking. The charge required, in substance, that the jury find that the money was fraudulently obtained from the complainant with his consent by means of a false pretext before it could convict. The trial court’s charge is substantially the same charge found in 8 Texas Practice, Will-son’s Criminal Forms, 7th Ed., Section 3559, page 564.

In Dennis v. State, 420 S.W.2d 940 (Tex.Cr.App.1967), the conviction was for theft by false pretext. Dennis objected because no charge was given that if the injured party had the means at hand of detecting that the representations were false he should be acquitted. There the Court noted:

“ . . . The charge as given in this case is substantially in the same terms as the charge which is recommended in Willson’s Criminal Forms, Seventh Edition, Section 3559. . . .”

The Court held that no additional instructions were required. See also, Colaluca v. State, 494 S.W.2d 885 (Tex.Cr.App.1973), and Ratcliff v. State, 504 S.W.2d 883 (T ex.Cr. App. 1974).

The contentions that the court erred in refusing to give the requested charges are overruled.

Appellant contends that the trial court erred in refusing to allow appellant to make an opening statement prior to the presentation of the State’s evidence. Article 36.01, Vernon’s Ann.C.C.P., provides that defendant’s opening statement shall be made after the presentation of the State’s evidence. See Crew v. State, 387 S.W.2d 898 (Tex.Cr.App.1965). Appellant’s counsel made an opening statement at the time provided in the statute. No error is shown.

The judgment is affirmed.