author: ODOM, Judge. DOUGLAS, Judge ROBERTS, Judge

text:
    John WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

      No. 49498.
    Court of Criminal Appeals of Texas.
    April 30, 1975.
    Hillord H. Hinson, Houston, Court-appointed, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Mike Maguire, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant waived trial by jury and entered a plea of guilty before the court for the offense of felony theft. Punishment was assessed at five years.

Court-appointed counsel on appeal has filed a brief stating that he has concluded that the appeal is frivolous. A copy of the brief was furnished appellant. No pro se brief has been filed. The procedures in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493, and Gainous v. State, Tex.Cr.App., 436 S.W.2d 137, were complied with. We agree that the appeal is wholly frivolous and without merit.

We have noticed, however, that the admonishments given at the time of the plea of guilty may not have been in full compliance with the requirements of Article 26.-13, Vernon’s Ann.C.C.P. But no objection to those given was made to the court below, either at the time the plea was taken or by motion for new trial. The rationale upon which we have considered this issue on our own motion in the past has been that the failure to give proper admonishments constituted fundamental error which could be raised for the first time in a habeas corpus proceeding, and accordingly was an issue which would require consideration in the interest of justice under Article 40.09, Section 13, V.A.C.C.P., even if not raised.

In the recent case of Ex parte Taylor, Tex.Cr.App., 522 S.W.2d 479 (Feb. 5, 1975, Leave to File Motion for Rehearing denied on April 30, 1975), this Court held that “in a collateral attack upon á plea of guilty there must be a showing that a defendant was prejudiced or injured for the failure of the trial court to fully comply with Article 26.13, supra,” to require a new trial. With collateral relief no longer available merely upon a showing that Art. 26.13 was not fully complied with, the rationale for considering it in the interest of justice, when not asserted, no longer exists, and it will no longer be addressed by this Court in such circumstances unless prejudice or injury is shown. All cases in conflict with our holding herein are overruled.

Finding no reversible error, the judgment is affirmed.

DOUGLAS, Judge

(concurring).

I concur in the opinion affirming this conviction. A statement of what happened during the trial and the reasons for overruling a long line of cases should be given.

Appellant entered a plea of guilty. He does not until this day claim any harm or injury. Counsel for appellant has filed a brief stating that the appeal is frivolous with a statement that a copy of the brief has been furnished to appellant advising him that he might file a brief in his own behalf.

Appellant judicially confessed that he stole an automobile of the value of over $50.00 from Lloyd McNeil as alleged in the indictment.

Before accepting the plea of guilty the following occurred:

“THE COURT: Are you pleading guilty because you actually are guilty and for no other reason ?
“DEFENDANT: Yes, sir.
“THE COURT: Has anybody promised you anything to get you to plead guilty ?
“DEFENDANT: No, sir.
“THE COURT: Has anyone promised you that you would get out lightly or that you would get a pardon from the Board of Pardons and Parole or the Governor of the State of Texas in an effort to get you to plead guilty ?
“DEFENDANT: No, sir.
“THE COURT: Now, you understand the range of punishment for the offense of felony theft is confinement in the Department of Corrections of the State of Texas for any term of not less than two years nor more than ten years. Do you understand that?
“DEFENDANT: Yes, sir.
“THE COURT: Now, knowing that fact and all the other facts do you still want to waive a Jury and have your case heard before the Court ?
“DEFENDANT: Yes, sir.
“THE COURT: Now, you are represented by Mr. Joe Cannon in this matter?
“DEFENDANT: Yes, sir.
“THE COURT: Mr. Cannon, have you counseled with your client and is he fully cognizant of what he is doing and does he wish to waive his right to a trial by a Jury and enter a plea of guilty before the Court?
“MR. CANNON: Yes, he does, Your Honor.
“THE COURT: Do you feel he is of sound mind ?
“MR. CANNON: He definitely is, Your Honor.
“THE COURT: Mr. Williams, have you ever been treated for a mental illness?
“DEFENDANT: No, sir.
“THE COURT: Or have you ever been confined in a mental hospital ?
“DEFENDANT: No, sir.”

During the trial and while the appellant was on the stand Mr. Maguire, the prosecutor, asked appellant “and you are pleading guilty because you are guilty and for no other reason ?” Appellant answered, “Yes, Sir.”

The court asked appellant sufficient questions and had sufficient evidence to conclude that the plea was voluntarily entered. The appellant was not asked if he were pleading guilty because of fear but the trial judge ascertained, as the prosecutor also did later during the trial, that appellant was pleading guilty because he was guilty and for no other reason. This is sufficient to show that he did not plead guilty because of fear. See Guster v. State, Tex.Cr.App., 522 S.W.2d 494, (delivered this date).

Since July, 1971, this Court has published at least ninety-eight opinions and has written many more per curiam opinions concerning, at least in part, questions under Article 26.13, V.A.C.C.P. Of these, seventy-two were affirmed, twenty were reversed, five were dismissed and one was abated. The writer recalls none of these where an appellant contended he was misled or injured because of an improper admonishment.

Most pleas of guilty have been the result of some plea bargaining. In such cases the prosecution recommends a certain punishment to the court if the accused pleads guilty. The accused in practically all of such cases realizes why he is pleading guilty and is not misled by an admonishment which is not letter perfect.

Where there has been a substantial compliance with the statute and the trial court has personally inquired of a defendant and has given him an opportunity to show that his plea was not voluntary, this Court should require a defendant to show that he relied upon the failure to fully comply with the statute to his detriment.

We have held that Article 26.13 is mandatory, but that alone is an insufficient reason to reverse a case, especially where it is not mentioned by an appellant on appeal. There are many mandatory statutes but the failure to comply with them does not automatically call for a reversal.

Article 38.05, V.A.C.C.P., is mandatory. It provides:

“In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.”

This Court has held many times that even though the statute has been violated, no reversible error has been shown when there has been no objection or no prejudice shown.

Article 36.14, V.A.C.C.P., provides that the judge shall instruct the jury in writing distinctly setting forth the law applicable to the case; “not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury. ...”

Absent an objection to such a comment by the trial judge, it is not considered on appeal. See the cases collated under the statute.

Articles 36.02, 36.03, 36.04, 36.05 and 36.-06, V.A.C.C.P., provide for the “rule” (of evidence) and its enforcement so that witnesses shall not hear in the courtroom any testimony in the case before testifying. Every violation does not call for a reversal.

Article 15.17, V.A.C.C.P., requires that certain actions shall be taken by the arresting officer and the magistrate. However, failure to comply does not constitute reversible error if no harm occurred to the defendant. Perbetsky v. State, Tex.Cr.App., 429 S.W.2d 471; Dockall v. State, Tex.Cr.App., 476 S.W.2d 290; Shadrick v. State, Tex.Cr.App., 491 S.W.2d 681. Article 38.22, V.A.C.C.P., requires that confessions shall not be admissible unless the specified requirements are met. Yet this Court has held that the defendant must timely object for any violation to constitute reversible error. E. g. Reese v. State, Tex.Cr.App., 404 S.W.2d 320; and Lawhon v. State, Tex.Cr.App., 429 S.W.2d 147, cert. denied 394 U.S. 989, 89 S.Ct. 1475, 22 L.Ed.2d 764.

Article 18.07, V.A.C.C.P., requires that a magistrate shall endorse the date and hour of issuance on a search warrant, but failure to do so does not constitute reversible error absent a showing of injury. Smith v. State, Tex.Cr.App., 478 S.W.2d 518.

Article 18.01, V.A.C.C.P., established requirements for the proper introduction of evidence seized under a search warrant, and what shall be done. But again, this Court has held that unless proper and timely objection is made by the defendant, no reversible error occurs. Walsh v. State, Tex.Cr.App., 468 S.W.2d 453; Stout v. State, Tex.Cr.App., 421 S.W.2d 914.

Numerous other authorities and examples could be cited. The net result of such decisions, as they pertain to mandatory statutes, indicates that no reversible error occurs unless:

1. harm, prejudice or injury results to the defendant, and
2. proper and timely objection is made by the defendant.

The rule requiring a timely and proper objection is based on providing the trial court with an opportunity to correct an error once it is called to his attention. Polk v. State, Tex.Cr.App., 500 S.W.2d 535; Jaramillo v. State, Tex.Cr.App., 504 S.W.2d 853. Otherwise, the error is deemed to have been waived.

The “harmless error” rule is likewise an equitable principle which does not require reversal unless the complained of fact actually hurt or injured the defendant in some way. Sirls v. State, Tex.Cr.App., 511 S.W.2d 55; Bridger v. State, Tex.Cr.App., 503 S.W.2d 801.

This Court has not heretofore applied these two basic rules to interpreting Article 26.13, supra, and has held that the defendant need not show either an objection or harm, in meriting reversal because of an improper admonishment. Williams v. State, Tex.Cr.App., 415 S.W.2d 917; Ex parte Marshall, Tex.Cr.App., 479 S.W.2d 921; Ex parte Jordan, Tex.Cr.App., 490 S.W.2d 585.

These principles are just as valid when applied to Article 26.13 as to any other “mandatory statute.”

In Tellez v. State, Tex.Cr.App., 522 S. W.2d 500 (This day decided), we held that an error in the range of punishment was harmless error.

Counsel for an accused has an opportunity to object when a trial judge does not use the exact terms of the statute in admonishing a defendant and in determining the voluntariness of the plea.

Recently we held in Ex parte Taylor, 522 S.W.2d 479 (1975), that such questions cannot be attacked collaterally absent a showing that the defendant was injured or misled to his detriment. The Taylor opinion was limited to habeas corpus or collateral attacks, but two of my brethren now apply that decision to cases on appeal. It is not clear but they apparently require an objection before the question can be raised.

I would permit a defendant to raise the question of voluntariness of a plea of guilty in a motion for new trial even though no objection to the admonishment has been made.

A trial judge may also grant a new trial after an appellate brief has been filed because he still has control of the case.

It should be kept in mind that the record should contain a substantial compliance with the statute and it should be shown that a defendant “voluntarily and understandingly entered his pleas of guilty” under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

Trial judges should recite the exact terms of Article 26.13, supra, and then explain its provisions. Further, the judge could well comply with the American Bar Association, Standards for Criminal Justice, Pleas of Guilty, Section 1.5, Approved Draft, 1968, in accepting pleas of guilty. They are as follows:

“The court should not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. By inquiry of the prosecuting attorney and defense counsel, the court should determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and, if it is, what agreement has been reached. If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court. The court should then address the defendant personally and determine whether other promises or any force or threats were used to obtain the plea.”

Many cases of long standing to the contrary have been overruled because there is no logical reason for reversing cases when the error is harmless. Appellate courts should be slow to overturn established precedents but when such rules are court-made and are not based upon sound reasoning, they should be expressly overruled.

ROBERTS, Judge

(dissenting).

The majority, through an adroit process of detached logic, have successfully circumvented the troublesome requirements of Art. 26.13, V.A.C.C.P. See my dissenting opinion in Tellez v. State, Tex.Cr.App., 522 S.W.2d 500 (delivered April 30, 1975). However, in their haste to rid our jurisprudence of the necessity of the trial judge determining the voluntariness of a guilty plea, they have completely abrogated the legislative mandate of Art. 40.09(13), V. A.C.C.P., that this Court review any unassigned error which should be reviewed in the “interest of justice.” It is the holding of the majority that unless complaint is made in the trial court to the failure of the judge to fully comply with the requirements of Art. 26.13, supra, then this Court will not consider the matter in the “interest of justice.” While I have dissented to the majority’s judicial amendment of Art. 26.13 in Tellez v. State, supra, I am constrained also to dissent to their further actions today.

The majority have astutely relied upon the use of a syllogism to reach their onerous conclusion. They maintain that until recently this Court reasoned :

Primary premise: Failure to comply with Art. 26.13, V.A.C.C.P., is fundamental error.
Secondary premise: This Court will review fundamental error in the “interest of justice.” Art. 40.09(13), V.A.C.C.P.
Conclusion: This Court will review defective Art. 26.13 cases in the “interest of justice.”

With the advent of Ex Parte Taylor, Tex. Cr.App., 522 S.W.2d 479 (original opinion delivered Feb. 5, 1975), the majority now reason:

Primary premise: Failure to comply with Art. 26.13 is no longer fundamental error.
Secondary premise: This Court will review fundamental error in the “interest of justice.”
Conclusion: This Court will no longer review defective Art. 26.13 cases in the “interest of justice.”

From an initial perusal of the preceding syllogism, this appears to be logically sound. However, a closer scrutiny reveals that the majority have made a fallacious assumption in the second level of their reasoning, i. e., “This Court will review fundamental error in the ‘interest of justice.’ While this is a correct pronouncement of the law, it is assumed that this Court will review only fundamental error under Art. 40.09(13), supra. This has not been nor should it be the law.

Unassigned error which has been reviewed in the “interest of justice” by this Court has never been limited exclusively to fundamental error. E. g., West v. State, 514 S.W.2d 433 (Tex.Cr.App.1974) obscenity as a matter of constitutional law; Nichols v. State, 511 S.W.2d 269 (Tex.Cr.App.1974) late filed briefs; Butler v. State, 506 S.W.2d 902 (Tex.Cr.App.1974) review of record without statement of facts; Lee v. State, 505 S.W.2d 816 (Tex.Cr.App.1974) double jeopardy; Ellis v. State, 502 S.W.2d 146 (Tex.Cr.App.1973) carving; Long v. State, 502 S.W.2d 139 (Tex.Cr.App.1973) ineffective assistance of counsel; Hartman v. State, 496 S.W.2d 582 (Tex.Cr.App.1973) pro se brief of appellant; Walthall v. State, 488 S.W.2d 453 (Tex.Cr.App.1972) legality of search; Dorsey v. State, 485 S.W.2d 569 (Tex.Cr.App.1972) voluntariness of confession; Sanders v. State, 482 S.W.2d 208 (Tex.Cr.App.1972) failure to produce film in evidence in obscenity case. While these are but a few examples, it is abundantly clear that unassigned error need not be fundamental in order to be reviewed by this Court under Art. 40.09(13), supra. Admittedly, most of what is considered in the “interest of justice” is of a constitutional dimension; however, it is well established that due process forbids convicting a defendant on the basis of a coerced guilty plea. Pennsylvania v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); cf. Jackson v. U. S., 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). I cannot subscribe to the holding of the majority which would review only fundamental error in the “interest of justice.” The effect of the holding today is to categorically deny review of Art. 26.13 cases in the “interest of justice.” Such a conclusion is ludicrous in itself. Although procedural rules are a necessity, the blessings of efficiency cannot outweigh the afflictions of justice, especially where such constitutional rights are at stake. The overbroad rule announced by the majority is contrary to our entire concept of justice.

Art. 44.23, V.A.C.C.P., provides:

“The Court of Criminal Appeals shall hear and determine appeals in criminal actions at the earliest time it may be done, with due regard to the rights of parties and proper administration of justice, and no affirmance or reversal of a case shall be determined on mere technicalities or on technical errors in the preparation and filing of the record on appeal.” (Emphasis added)

The import of this Article, when read in conjunction with Art. 40.09(13), supra, is clearly that this Court should, above all else, strive to insure that justice is the end result of a criminal prosecution and that the defendant is afforded a fair trial under law.

As noted previously, it is a constitutionally protected right that a guilty plea be voluntarily entered. Accordingly, the Legislature has placed the affirmative duty on the trial judge to conduct an impartial and independent determination of the voluntariness of the guilty plea. Art. 26.13, supra. The holding of the majority would transpose this duty to appellant’s counsel to make complaint at trial. This can be readily seen by their conclusion that if no objection is made at the trial court level to the judge’s failure to fully comply with the statute, nothing is presented for review. By relying on the adversary system, the majority have alleviated the duty placed on the trial judge by the Legislature to make this determination. This is directly contrary to the legislative intent of Art. 26.13, supra.

To adhere to the rule announced by the majority would be to ignore the mandates of Art. 26.13, supra; Art. 40.09(13), supra; and Art. 44.23, supra. I cannot sit idly by and watch a defendant be unwittingly stripped of his constitutional rights by his attorney’s failure to object when the Legislature of this State has specifically provided for the trial judge to make this determination sua sponte before accepting the plea. I would continue to review such matters in the “interest of justice” even though it is not fundamental error.

For the foregoing reasons, I dissent. See the dissenting opinion in Ex Parte Taylor, Tex.Cr.App, 522 S.W.2d 479 (No. 49,443, delivered April 30, 1975).

ONION, P. J., joins in this dissent.

      . The transcription of the court reporter’s notes is devoid of any indications that the trial court inquired as to whether appellant’s plea was induced by force or fear.

      . Although not exhaustive, the cases overruled include Cevilla v. State, Tex.Cr.App., 515 S.W.2d 676; Alvarez v. State, Tex.Cr.App., 511 S.W.2d 521; Pigg v. State, Tex.Cr.App., 508 S.W.2d 652; Heathcock v. State, Tex. Cr.App., 494 S.W.2d 570; and Jefferson v. State, Tex.Cr.App., 486 S.W.2d 782.


source: Caselaw Access Project

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

license: Public Domain

text:
    Embry Lloyd GUSTER, Appellant, v. The STATE of Texas, Appellee.
    Nos. 49538, 49539.
    Court of Criminal Appeals of Texas.
    April 30, 1975.
    Rehearing Denied May 21, 1975.
    Ray Schindler, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and George Karam, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

These are appeals from convictions for burglary with intent to commit theft and felony theft. The appellant pled guilty and the court sentenced him to seven years for each offense.

Appellant’s only ground of error is that the trial court failed to comply with Article 26.13, Vernon’s Ann.C.C.P., when accepting his pleas of guilty. There is no showing that appellant was prejudiced or injured by the failure of the trial court to fully comply with that article. Cf. Ex parte Taylor, Tex.Cr.App., 522 S.W.2d 479 (1975). Accordingly, this contention could not be raised on collateral attack. Taylor, supra. Since it also was not raised by objection to the court below, either at the taking of the pleas or by motion for new-trial, it likewise would not be considered by this Court on its own motion. Williams v. State, Tex.Cr.App., 522 S.W.2d 488 (this day decided).

We now extend the rule of Taylor and Williams to the situation before us: where there is no showing that a defendant was prejudiced or injured by the failure of the trial court to fully comply with Article 26.-13, supra, and where no objection is made to such failure at the time the plea is accepted or by motion for new trial, that failure to fully comply will not constitute reversible error on appeal. This does not alter the rule requiring reversal where there is a showing of prejudice or injury. The demarcation between such cases requiring reversal and those not requiring reversal is best left to a case by case determination. This case, however, clearly falls within the extended rule of Taylor and Williams. All cases in conflict with our holding herein are overruled.

Finding no reversible error, the judgments are affirmed.

DOUGLAS, Judge

(concurring).

I concur in the opinion affirming these causes. What happened during the' trial and further reasons for overruling many decisions should be discussed. Appellant pled guilty and the court sentenced him to seven years for each offense.

Appellant’s sole contention is that the trial court failed to comply with Article 26.13, V.A.C.C.P., when accepting appellant’s pleas of guilty. Specifically, he contends that the trial court did not question him about “fear” and “persuasion.”

The record reflects the following took place prior to the trial court’s acceptance of appellant’s plea of guilty:

“THE COURT: ... You are present in court on these two matters with attorney, Mr. Ray Schindler. Is Mr. Schindler of choice?
“MR. GUSTER: Yes, Sir.
“THE COURT: Have you discussed both of these cases fully and thoroughly with him?
“MR. GUSTER: Yes, Sir.
<< * Jjt
“THE COURT: Have you [Mr. Schindler] discussed both of these cases fully and thoroughly with him [appellant] ?
“MR. SCHINDLER: Yes, Sir.
“THE COURT: Are you personally satisfied he understands each of the indictments and the result of whatever plea he might enter to them ?
“MR. SCHINDLER: Yes, Sir.
“THE COURT: Do you believe the Defendant, Embry Lloyd Guster, to be of sound mind?
“MR. SCHINDLER: Yes, Sir.
“THE COURT: . . . How do you plead to this indictment charging' you with burglary with the intent to commit theft?
“MR. GUSTER: Guilty.
“THE COURT: Are you pleading guilty because you are guilty and not for some other reason?
“MR. GUSTER: Yes, Sir, because I am guilty.
“THE COURT: Now, in connection with this case, has any threat been made to you to cause you to enter this plea of guilty?
“MR. GUSTER: No, Sir.
“THE COURT: Has any promise been given to you, other than the recommendation that the lawyers are going to make to the court concerning this matter as a result of their plea bargaining negotiation process?
“MR. GUSTER: No, Sir.
<( * * *
“THE COURT: Now, I must caution you that the punishment for the felony offense of burglary with intent to commit theft can be confinement in the Department of Corrections for not less than two years, nor more than twelve years. While the court is going to hear and consider whatever recommendations these lawyers might make in these matters, do you understand, Embry Lloyd Guster, that the court is not bound or obligated to follow that recommendation?
“MR. GUSTER: Yes, Sir.
“THE COURT: Knowing that do you still want to continue in this plea of guilty ?
“MR. GUSTER: Yes, Sir.
“THE COURT: Are you a person of sound mind?
“MR. GUSTER: Yes, Sir.”

The Court proceeded to ask essentially the same questions of appellant on the felony theft charge and properly admonished him concerning the range of punishment for felony theft. Then the following occurred :

“THE COURT: Very well. I will ask you to state, Embry Lloyd Guster, for the record in these proceedings, what the recommendation in these two cases is that your attorney, Mr. Schindler, has told you is to be made to the court in regard to punishment in these two matters.
“MR. GUSTER: Seven years.
“THE COURT: Seven years’ confinement in the Texas Department of Corrections ?
“MR. GUSTER: Yes, Sir.
“THE COURT: In each case?
“MR. GUSTER: Yes, Sir.
“THE COURT: All right, Mr. Schindler, is this the recommendation, seven years that you have conveyed to your client, seven years’ confinement in the Texas Department of Corrections in each case, this recommendation is the recommendation that you have been discussing with the District Attorney?
“MR. SCHINDLER: Yes, Sir.
“THE COURT: And you have discussed this previously with the Defendant, Embry Lloyd Guster?
“MR. SCHINDLER: Yes, Sir. I have.
“THE COURT: Are you satisfied that he understands that this is what the punishment will be if the court finds it to be a proper recommendation ?
“MR. SCHINDLER: Yes, Sir.
“THE COURT: ... For the record, so that it will reflect further, has anyone told you in either of these cases that the punishment is going to be lighter or the Governor of the State will pardon you in either one or both of these matters if you entered a plea of guilty rather than having a jury trial ?
“MR. GUSTER: No, Sir.
“THE COURT: Very well. The court will accept your plea of guilty.

After the State placed on its evidence and both sides had rested, the following transpired:

“THE COURT: Both sides having rested, do I understand the recommendation that is being made to the court in these two matters is that of seven years’ confinement in the Texas Department of Corrections?
“MR. KARAM: (Prosecuting Attorney) Yes, Sir, Your Honor.
“MR. SCHINDLER: Yes, Sir.
“THE COURT: Embry Lloyd Guster, have you entered these pleas of guilty in these two cases because you are guilty or because of this favorable recommendation ?
“MR. GUSTER: Because I am guilty.”

The court then accepted the pleas.

The trial judge complied with Article 26.13, supra, by first properly admonishing the appellant concerning the range of punishment, and then determining, based on all the information at his disposal including questions asked and the responses given, that it plainly appeared that appellant was mentally competent and was uninfluenced by any consideration of fear or persuasion or delusive hope of pardon prompting him to plead guilty. See Valdez v. State, 507 S.W.2d 202 (Tex.Cr.App.1974); Gamez v. State, 506 S.W.2d 618 (Tex.Cr.App.1974); Tupper v. State, 506 S.W.2d 858 (Tex.Cr. App.1974); Bosworth v. State, 510 S.W.2d 334 (Tex.Cr.App.1974); and Atkins v. State, 515 S.W.2d 902 (Tex.Cr.App. 1974). See also Tellez v. State, Tex.Cr.App., 522 S.W.2d 500 (decided this date).

The voluntariness of a plea of guilty is certainly more obvious when the plea bargaining process and the understandings of the parties involved, especially those of the defendant, are all brought out in open court. That was the case here. The judge, realizing that plea negotiations had occurred prior to the trial, made sure that the appellant understood what had gone on and also emphasized that the trial judge was not bound by such recommendations.

This openness of the plea bargaining process can only help the administration of justice. There is no sham and there is no pretended ignorance of the prior dealings between the appellant’s attorney and the prosecuting attorney. This procedure is endorsed by the American Bar Association, Standards for Criminal Justice. The ABA Standard, Pleas of Guilty, Section 1.5, Approved Draft, 1968, states:

“The court should not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. By inquiry of the prosecuting attorney and defense counsel, the court should determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and, if it is, what agreement has been reached. If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court. The court should then address the defendant personally and determine whether other promises or any force or threats were used to obtain the plea.”

It is important to emphasize that the trial judge is not involved in the plea bargaining process. But the inquiry in open court concerning the plea bargaining process enhances the trial judge’s capability of determining the voluntariness of the guilty plea. Such a procedure is recommended. See Williams v. State, Tex.Cr.App., 522 S.W.2d 483 (decided this date).

ONION, Presiding Judge

(dissenting).

Article 26.13, Vernon’s Ann.C.C.P., provides :

“If the defendant pleads guilty, or enters a plea of nolo contendere, he shall be admonished by the court of the consequences; and neither of such pleas shall be received unless it plainly appears that he is mentally competent, and is uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon, prompting him to confess his guilt.”

In his only contention on direct appeal appellant complains that the trial court erred in not complying with the statute by inquiring whether his guilty pleas were prompted by any consideration of fear and persuasion.

The record reflects that while the court inquired in each case as to whether “any threat” had been made or whether “any promise” had been given to cause the appellant to enter his guilty pleas, there was no inquiry with regard to “fear” and “persuasion.” It is clear that the statutory terms of “fear” and “persuasion” are considerably broader than the terms “threat” or “promise.”

Although this court even as presently constituted had for many years held the provisions of Article 26.13, Vernon’s Ann. C.C.P., mandatory, see Ex parte Chavez, 482 S.W.2d 175 (Tex.Cr.App.1972), the court in Espinosa v. State, 493 S.W.2d 172 (Tex.Cr.App.1973), and Mitchell v. State, 493 S.W.2d 174 (Tex.Cr.App.1973), held that the court in a felony case no longer needed to inquire whether a guilty plea was prompted by a “delusive hope of pardon.” See also Higginbotham v. State, 497 S.W.2d 299, 300 (Tex.Cr.App.1973).

The majority in Espinosa and Mitchell did not explain how they could give less weight to “delusive hope of pardon” than “any consideration of fear” or “any persuasion” found in the same sentence of the mandatory statute. Apparently, however, they, at least for a time, looked upon an inquiry as to “fear” and “persuasion” as essential to satisfy the “minimal requirements” or reflect a “minimal compliance” with the statute.

For example, in Harris v. State, 500 S. W.2d 126 (Tex.Cr.App.1973), the majority speaking through Judge Morrison held that a mere inquiry as to whether the plea was voluntary was insufficient, but that the “minimal requirements” of Article 26.13, supra, as to consideration of fear or persuasion “must be inquired into and appear of record.”

In Heathcock v. State, 494 S.W.2d 570 (Tex.Cr.App.1973), the conviction was reversed, the court’s opinion being by Judge Morrison. The opinion noted that no inquiry as to “promise” or “persuasion” was made and stated, “We have concluded that the admonition with this omission fails to meet the requirements of the statute.”

In Martinez v. State, 494 S.W.2d 545 (Tex.Cr.App.1973), the conviction was reversed. Judge Morrison, writing the opinion, observed that the trial court had no inquiry as to “force,” “fear,” “promise” or “persuasion.”

In Mayse and Ross v. State, 494 S.W.2d 914 (Tex.Cr.App.1973), the majority speaking through Judge Odom began to inch away from even the so-called “minimal requirements” established by the majority. The opinion there held the inquiry as to whether the guilty plea was prompted by any force or coercion or promise was sufficient to comply with the statute. In a dissenting opinion Judge Roberts observed there was an absolute void as to an inquiry concerning whether any persuasion, fear or delusive hope of pardon as required by the mandatory statute. He added, “Trial judges are now put on notice that they need not comply with Article 26.13, V.A. C.C.P. So long as any sloppy effort is put forth in accepting a guilty plea, the majority will accept it as ‘sufficient compliance’.”

It became clear from these cases that the majority had added “force” and “promise” to the statute while eliminating “delusive hope of pardon.” Nevertheless, it appeared on occasions, with some lapses, that the majority was still requiring inquiry as to “fear” and “persuasion.”

In Ex parte Scott, 505 S.W.2d 602 (Tex.Cr.App.1974), an opinion by Judge Douglas, the conviction was reversed for the failure to ascertain whether the guilty plea was “by reason of fear or persuasion.” See also Ex parte Dickerson, 508 S.W.2d 387 (Tex.Cr.App.1974).

In Bosworth v. State, 510 S.W.2d 334 (Tex.Cr.App.1974), the necessity of an inquiry as to “persuasion” was eliminated despite the earlier decision. In a dissenting opinion in Bosworth this writer wrote, “One is left to wonder if any inquiry as to ‘fear’ is still required or whether it is also gone with the wind.”

In Wade v. State, 511 S.W.2d 7 (Tex. Cr.App.1974), the majority of the court held that inquiry was fatally defective because of a failure to inquire if the guilty plea was due to “fear” or “persuasion.” The concurring opinion by Judge Odom, joined by Judge Morrison, agreed to the result reached on the grounds that the record was insufficient to show the defendant “in pleading guilty was uninfluenced by any consideration of fear.” Apparently the statutory requirement as to an inquiry as to fear was still alive and well. See also Ex parte Watson, 508 S.W.2d 399 (Tex.Cr.App.1974); Pigg v. State, 508 S. W.2d 652 (Tex.Cr.App.1974); Cevilla v. State, 515 S.W.2d 676 (Tex.Cr.App.1974).

Now confronted in the instant case with an admonishment which did not include either “fear” or “persuasion” and obviously recognizing their past efforts to emasculate the mandatory statute have not been consistent or logical, the majority seizes upon the opinion in Ex parte, Taylor, 522 S.W.2d 479 (Tex.Cr.App.1975), to make another stab at doing the statute in. In Taylor, on original submission, this court held that a failure to comply with Article 26.13, supra, could not be raised by collateral attack, overruling numerous cases to the contrary. The opinion clearly stated, “By our holding today, we do not in any way diminish the requirement of complying with Article 26.13. . . . ” and added in footnote #2, “Our holding does not apply to cases on appeal.”

Despite such language, the majority in Williams v. State, 522 S.W.2d 483 (Tex. Cr.App.) (this day delivered), advanced the theory that Taylor supported the non-review on direct appeal of a violation of the mandatory provisions of Article 26.13, supra, if it was unassigned error. In the instant case the majority has sought to extend the so-called Taylor-Williams rule to situations where the claimed violation of the statute is raised by a ground of error in the appellate brief filed in the trial court in accordance with Article 40.-09, Sec. 9, Vernon’s Ann.C.C.P., and holds that the failure of the trial court to fully comply with the statute, even if such failure is supported by the record, is not reviewable unless there is a showing of prejudice or harm and the record reflects that there was an objection at the time of the plea or by motion for new trial.

This new approach may not last any longer than the majority’s “substantial compliance” approach, which was a label for a conclusion, not a test to be applied, or the semicolon approach advanced in Cameron v. State, 508 S.W.2d 618 (Tex. Cr.App.1974) (Concurring Opinion).

For the reasons stated, I must vigorously dissent. See Taylor v. State, supra (Dissenting Opinion on Motion for Rehearing); Williams v. State, supra (Dissenting Opinion); Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App.) (Dissenting Opinion); Bosworth v. State, 510 S.W.2d 334 (Tex.Cr.App.1974) (Dissenting Opinion).

ROBERTS, J., joins in this dissent.

      . The record reflects that while the court inquired in each case as to whether “any threat” had been made or whether “any promise” had been given to cause the appellant to enter his guilty pleas, there was no inquiry with regard to “fear” and “persuasion.”

      . Although not exhaustive, the cases overruled include Wade v. State, Tex.Cr.App., 511 S.W.2d 7; Harris v. State, Tex.Cr.App., 500 S.W.2d 126; Prudhomme v. State, Tex.Cr.App., 495 S.W.2d 941; Martinez v. State, Tex.Cr.App., 494 S.W.2d 545; Crocker v. State, Tex.Cr.App., 485 S.W.2d 566; and Rogers v. State, Tex.Cr.App., 479 S.W.2d 42.

      . See, i. e., Johnson v. State, 500 S.W.2d 115 (Tex.Cr.App.1973).

      . This concurrence noted that the dissenting opinion by Judge Douglas would find the single question “Are you pleading guilty because you are guilty and for no other reason?” sufficient to determine whether a defendant is uninfluenced by any consideration of fear or persuasion of delusive hope of pardon. This approach was rejected by the concurrence.

      .In light of other earlier opinions of the majority, one is left to wonder the meaning of the trial court “fully” complying with the mandatory statute.


author: DOUGLAS, Judge. ROBERTS, Judge

text:
    Teofilo TELLEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 49637, 49638.
    Court of Criminal Appeals of Texas.
    April 30, 1975.
    Ronald R. Flake, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Sharon MacRae and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

The conviction in Cause No. 49,637 was for the offense of burglary of a building with intent to commit theft under Article 1390, Vernon’s Ann.P.C. (1925), in effect in 1973 at the time of indictment. The conviction for the burglary of a vehicle in Cause No. 49,638 was pursuant to Section 30.04, V.T.C.A. Penal Code (effective January, 1974).

The trial judge, in admonishing appellant, stated that the range of punishment was from two to ten years in the first case. The statute provided for a punishment of two to twelve years. In the second case the admonishment was correct as to the number of years, but the court omitted Section 12.34, Subsection b, V.T.C.A. Penal Code, which provides:

“(b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $5,000.”

After the court ascertained that appellant wished to plead guilty, the following occurred:

“THE COURT: In addition, you have the right to remain silent, you don’t have to make any statement, confess to anything, agree to anything or stipulate to anything. It is up to the State to prove your guilt by competent evidence. It is not up to you to prove your innocence. Do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: I have to get the punishment range here, the range of punishment. Do you know, offhand?
“MR. FLAKE: (Defense counsel) Your Honor, it is two to ten on the burglary. For the breaking and entering a motor vehicle—
“THE COURT: Burglary with intent to commit theft, that is the first one.
“MR. FLAKE: Well, it is two to ten on both of them, Your Honor.
“THE COURT: Two to ten. Are we certain of that ?
“MS. MacRAE: (Prosecutor) Yes, sir. The burglary occurred on the 17th of October, 1973.
“THE COURT: So, that is two to ten?
“MS. MacRAE: Yes, sir.
“THE COURT: The other one is burglary of a vehicle and that is two to ten, too; is that correct ?
“MS. MacRAE: Yes, sir.
“THE COURT: Mr. Tellez, for the record, in Cause Number 73-CR-2436 in which you stand charged with the felony offense of burglary with intent to commit theft, the possible punishment, in the event you are found guilty, is a minimum of two years and a maximum of ten years in the Texas Department of Corrections.
In Cause Number 74-CR-832-B, in which you stand charged by indictment with the felony offense of burglary of a vehicle, the range of punishment, in the event you are found guilty, is from a minimum of two years to a maximum of ten years.
Knowing what the possible punishments may be in each or both of these cases, knowing what your legal and constitutional rights are, do you still desire to change your respective pleas in both of these cases from not guilty to guilty and do you still desire to waive a jury in each and both of these cases ?
“THE DEFENDANT: Yes, sir/’

The appellant waived a jury and entered pleas of guilty in both cases. He made a judicial confession and evidence was introduced. The judge found appellant guilty and asked for recommendations. The prosecutor recommended four years. The court assessed the punishment at four years in each case. After a hearing, the court denied probation and gave appellant credit from the time he was first arrested.

Defense counsel wrote in his brief that the trial court, “although not complying with the exact wording of Article 26.13, V.A. [Vernon’s Ann.] C.C.P., did substantially comply with said article.”

Alvarez v. State, 511 S.W.2d 521 (Tex. Cr.App.1974), is directly in point. The writer agreed to the reversal on the basis of former opinions. After further consideration, it appears that the Alvarez decision and some of its predecessors were wrong.

Judge Morrison, joined by Judge Odom, dissented to the reversal. The reasoning in that dissenting opinion is logical. It is as follows:

“It would appear that this question has divided this Court before. See Valdez v. State, Tex.Cr.App., 479 S.W.2d 927; Jorden v. State, Tex.Cr.App., 500 S.W.2d 117, and Cameron v. State, Tex.Cr.App., 508 S.W.2d 618.
“Surely if an accused would voluntarily plead guilty thinking his punishment might be life (which is the admonishment the majority say should have been given), then his plea based upon the assumption that his punishment could be no higher than 20 years would likewise be voluntarily made.
“Logic dictates that the Legislature by the enactment of Art. 26.13, V.A.C.C.P., required that an accused be admonished of the consequences of his plea of guilty to avoid a situation where an accused thought his possible punishment could be a certain number of years and then (after he had entered his plea of guilty) learn that he had been assessed a greater punishment. Such a situation did not arise in the case at bar.
“We should adopt the holding in the cases cited above and hold that this appellant was not misled to his prejudice and that the error of the court in his admonishment was a harmless error.”

Even though a rule has been established for a long time, if there is no logical or reasonable basis for such a rule, it should be overruled. See Guster v. State, Tex.Cr.App., 522 S.W.2d 494 (delivered this date), and Williams v. State, Tex.Cr.App., 522 S.W.2d 483 (No. 49,498, delivered this date). See also Ex parte Taylor, Tex.Cr.App., 522 S.W.2d 479 (1975).

The dissenting opinion contains no reasons except that the Court has held otherwise for a long time and that the statute is mandatory. It does not attempt to show why this statute, where no harm has been claimed, should be given some sort of special interpretation or status when harm has to be shown if other mandatory statutes and constitutional provisions are not followed to the letter. See Jones v. State, 496 S.W.2d 566 (Tex.Cr.App.1973), where the failure to require the court reporter to take down the voir dire examination of the jury panel was held not to be reversible. In Hill v. State, 480 S.W.2d 200 (Tex.Cr.App.1972), there was no reversible error where appointed counsel was not given ten days by the learned trial court to prepare for a revocation of probation hearing. See also the cases cited in the concurring opinion in Williams v. State, supra.

The main thing wrong with the decision in this case is that it has been too long in coming. As the late Judge W. L. Davidson said in Cline v. State, 36 Tex.Cr.R. 320, 36 S.W. 1099 (1896): “[Adjudicated error, persisted in, cannot make truth of that error.” Just because we have been in error in the past does not justify further error. Alvarez v. State, supra, and all cases to the extent that they are contrary to this opinion are overruled.

The judgments are affirmed.

ROBERTS, Judge

(dissenting).

At last the majority have succeeded in burying the last remains of Art. 26.13, V. A.C.C.P. We should all be relieved to know that our jurisprudence is now free of that troublesome statute which continued perversely to exist despite having undergone the most remarkable judicial surgery ever suffered by any legislative enactment.

By a process of elimination that was truly wonderful to contemplate, the majority have erased, element by element, the entire body of Art. 26.13 from our Code of Criminal Procedure. First it was determined that an admonishment as to “delusive hope of pardon” was an unnecessary and useless thing. Being unnecessary, it was quickly eliminated. See Espinosa v. State, 493 S.W.2d 172 (Tex.Cr.App.1973); Mitchell v. State, 493 S.W.2d 174 (Tex.Cr.App.1973); and Clayton v. State, 493 S.W.2d 176 (Tex.Cr.App.1973). Next, it was perceived that an admonishment regarding “persuasion” really served no good purpose and it too was eliminated. See Mayse and Ross v. State, 494 S.W.2d 914 (Tex.Cr.App.1973); Johnson v. State, 500 S.W.2d 115 (Tex.Cr.App.1973); and Bosworth v. State, 510 S.W.2d 334 (Tex.Cr.App.1974). Only lately, our majority has recognized that admonishment as to “fear” does little, if any, good in the determination of the voluntariness of a plea. Hence, admonishment as to “fear” is cast aside. See Mayse and Ross v. State, supra, and Guster v. State, Tex.Cr.App., 522 S.W.2d 494 (delivered April 30, 1975).

Before today, however, it was firmly established by the majority that the first portion of Art. 26.13, being separated by a semi-colon from the rest, was without a shadow of a doubt absolutely and unquestionably mandatory. See Alvarez v. State, 511 S.W.2d 521 (Tex.Cr.App.1974) and the concurring opinion in Cameron v. State, 508 S.W.2d 618 (Tex.Cr.App.1974).

But today, it is no longer convenient, in the majority’s view, to hold that any portion of the statute is mandatory, and therefore the majority will do, by judicial fiat, what the Legislature of our State has consistently declined to do. Never mind that the Legislature made the statute mandatory in all its parts. Hereafter, no part of Art. 26.13 need be considered mandatory, since a majority of the Court of Criminal Appeals, acting in its well-established capacity as a superior legislative body, has simply amended the statute.

It fills this writer with a wonderful sense of accomplishment to see this Court, at last, joining the illustrious Supreme Court of the United States in declaring the law of the land to be whatever a majority of the membership desire it to be, rather than what the Legislature, with its muddled thinking and limited viewpoint, has chosen to enact.

This commendable action of the majority, in addition to eliminating our need to rely upon the cumbersome and ineffective device of an elected legislature, will have the most salutary effects on the administration of justice in criminal cases. The purpose of Art. 26.13 was to insure to an accused person in a criminal case that at least one person would be impartial and objective in ascertaining whether he had knowingly and willingly waived those rights guaranteed him by the Constitution of this State and of the United States. The process was, admittedly, somewhat time consuming and, if the number of cases on the subject be an indication, somewhat confusing to trial judges. Happily, this shall all pass away, and vast numbers will soon speed to their just desserts, secure in the knowledge that no one will trouble himself even to inquire if they are aware of what is happening to them. It is a prospect of such felicity as to warm the heart of any person who prefers the blessings of efficiency to the afflictions of doing justice.

Recent statistics indicate that almost 33 percent of the inmate population of the Texas Department of Corrections have an IQ level of less than 90 points. When the provisions of Art. 26.13 were followed, they insured that even the least of these were at least given an opportunity to comprehend the nature and consequences of the proceedings against them. This is so no more, and we have this day eliminated the duty of the courts of this State to insure that every plea of guilty entered before them is done voluntarily and willingly and knowingly.

Fortunately, the majority’s reliance upon cold logic has prevailed over the illogical and incomprehensible decision of the Legislature that a mandatory statute should be mandatory. Hopefully, we can look forward to more and more instances in which a majority of this Court will substitute its judgment for that of the Legislature, so that we can rapidly approach that happy day in which our courts will be ruled by “common-sense” and individual discretion, rather than the rules of law which some people can neither understand nor follow. This will greatly simplify our criminal procedure, enabling us to hustle away more and more people and relieving the crowded dockets of our courts, while at the same time insuring to all our citizens that their rights will exist at the whim of the individual judge.

On appeal, we need no longer concern ourselves with these people since, having pleaded guilty, they must surely be guilty. Surely, if an accused would plead guilty thinking his punishment might be life, his plea would be no less voluntary if he were told that the maximum punishment was 20 years.

Of course, this reasoning by the majority ignores the fact that the Legislature may have intended that we assume that an accused does not know the correct range of punishment before he enters his plea, and that if he did, he might decline to plead guilty. Let us assume, in the example given by the majority, that the accused does not know the range of punishment. The court tells him the maximum is 20 years, when in fact, it is imprisonment for life. The accused pleads guilty and is assessed ten years’ confinement. The majority says this is harmless because the accused was not assessed more than he thought he would receive.

But isn’t the focus of the majority just a little too narrow ? Don’t they miss the forest for the trees ? The question here is the voluntariness of the plea, and the term “voluntary” requires that the plea be entered with knowledge of its consequences. How can the accused in the example be said to have voluntarily entered his plea when it is obvious from the situation that he could not know the range of punishment, hence the consequences, of his plea? The plea is made in ignorance. It is made on the basis of an incorrect and misleading statement. Therefore, by definition, it cannot be voluntary.

But the majority, focusing on the accused’s obvious guilt, would say the accused was not misled to his injury. This would be a perfectly reasonable approach if the question before us in these cases was the guilt or innocence of the accused. It is not. The question before us is, for the purposes of Art. 26.13, the voluntariness of the accused’s pleading. He may be as guilty as Judas, and the evidence of his guilt may be overwhelming, yet he has the right to a trial; and if he is cheated of that right, even though it be done through inadvertence, our system has failed.

The assumption that an accused would not, or might not, plead guilty if informed of the correct range of punishment is at least as reasonable, if not more so, than the majority’s assumption that he would do so. The majority’s assumption is tied to, and colored by, their assessment of the accused’s guilt, and once again, that question is not before us.

For the majority, logic dictates that the legislative purpose of Art. 26.13 is to prevent a situation in which an accused pleads guilty anticipating one range of punishment but receives a greater one. If, however, Art. 26.13 has no relation to guilt, but relates to the voluntariness of the plea, does not logic dictate that its purpose is to insure that the plea is knowingly entered on the basis of a correct statement of the consequences of the plea? It must and surely does.

We must close our eyes, for the moment, to the guilt of the accused, and look to another issue. Obviously, that is not an easy task, for it is hard to give to a patently guilty man the same benefits and advantages given to the innocent. Yet, someone must take up that burden, and it is the Legislature’s decision that it be carried by those who can be impartial: the judiciary of our State. It is no answer to argue that there is no logical or reasonable basis for the rule, for there is. It is no answer to say that the accused was not misled to his prejudice when, if he was misled, his rights must have been prejudiced. Unfortunately, it is obvious from the mandatory language of Art. 26.13 that the Legislature did not intend to provide this Court with the “easy” way out of this area that the majority seeks to follow.

This writer once stated that he would no longer dissent to the majority’s actions in ignoring the clear requirements of Art. 26.-13, provided that the majority did not seek to go further in eliminating the statute. See Bosworth v. State, supra, 510 S.W.2d at pp. 334-345. Since the majority have now simply erased the statute from our law, I feel justified in rejecting their action in its entirety.

I vigorously dissent to the affirmance of this conviction.

ONION, P. J., joins in this dissent.

      . This figure was taken from a paper presented at the State Bar Criminal Law Institute in San Antonio, Texas on July 3,1974.


author: BROWN, Commissioner.

text:
    Sandra Renee STARLING, Appellant, v. The STATE of Texas, Appellee.
    No. 49885.
    Court of Criminal Appeals of Texas.
    May 7, 1975.
    Rehearing Denied May 28, 1975.

      William Louis White, Huntsville, William Foster Carter, Madisonville, for appellant.
    Jerry A. Sandel, Dist. Atty., and Donald L. Kraemer, Asst. Dist. Atty., Madisonville, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant was convicted of murder without malice and her punishment was assessed by the jury at two years.

In her first ground of error, appellant contends that the court erred in denying her motion for instructed verdict because the State failed to prove that the exculpatory statements of appellant were untrue. Appellant did not testify. The State called as its witness sheriff Richard Grail who testified, among other things, that appellant called him the night of the killing and said: “My God, Richard, I just accidentally shot Grady.” The State also offered in evidence appellant’s confession in its entirety including her exculpatory denial of any intent to shoot her husband and her assertion that she thought the gun was not loaded. The mother of the deceased husband testified that about two weeks prior to the killing appellant came to her house and asked to borrow the 30-30 lever-action rifle used in the killing. The witness testified that she told appellant that the gun was loaded with five shells and suggested that she get the boys to unload it, but appellant said no and tossed the loaded rifle into her pick-up. The sheriff testified that when he got to the murder scene he saw four bullets on a piece of furniture in the room where the shooting occurred but that he didn’t pick them up because he was mainly concerned with getting the deceased, who was at that time still alive, to the hospital. When he returned to appellant’s house after her husband was pronounced dead, the bullets were no longer where he had seen them and he was unable to find them. Another witness testified that she was visiting appellant after the shooting and found four bullets in a clothes container buried under some panty hose. The father of deceased testified that appellant told him if her husband ever tried to leave her she would kill him. On the occasion of the shooting deceased had just announced that he was leaving appellant and was going to take their daughter, Shannon, with him. The mother of deceased testified that when appellant borrowed the rifle it was not cocked. The sheriff explained that the rifle would not fire unless the lever was pulled down and returned to position thereby cocking the gun. It was the duty of the jury to pass upon these conflicting facts which they did. The court did not err in denying the motion for instructed verdict.

Appellant next complains that the court erred in refusing her timely requested charge on accident and cites Hamilton v. State, 64 Tex.Cr.R. 175, 141 S.W. 966. The facts in Hamilton, supra, it is true, are very similar to the facts in this case. There the defendant was playing with what he thought was an unloaded gun. When he pulled the trigger the gun fired the fatal shot. The court reversed because of the refusal of the trial court to charge on accident. In this case the appellant intentionally pulled the trigger, although she maintained that she thought the gun was not loaded. This was a mistake of fact on her part and the court charged on mistake of fact. To the extent that Hamilton, supra, is at variance with this holding, it is overruled. Appellant further contends that since she called the sheriff immediately after the shooting and said she had “accidentally” shot her husband, the issue of accident is automatically in the case. Appellant, speaking excitedly in lay terms, apparently merely meant to convey to the sheriff that the shooting was unintentional. It could hardly be expected that as a lay person she would have told the sheriff: “I shot Grady acting under a mistake of fact not arising from a want of proper care of my part.” This ground of error is overruled.

Finally, appellant asserts that the court erred in overruling her objection to the question asked appellant’s witness by the prosecution on cross-examination at the punishment stage when the prosecution asked the witness if the fact that Madison County did not have a probation officer would change her answer on direct examination that appellant, in her opinion, would comply with the terms of probation if granted. The witness answered: “No, her parents will supervise her.” Appellant’s objection was: “I object to the question on the ground that it is solely meant to be prejudicial and for that reason only.” Appellant on direct examination, in asking the opinion of this witness regarding the ability of appellant to comply with the conditions of probation, had told the witness that the conditions included the requirement that appellant report to the probation officer as directed and permit the probation officer to visit appellant in her home. Also, the sheriff testified at the punishment stage without objection that Madison County did not have a probation officer. Probation is under the supervision of the court, and even though a county might not have a full-time probation officer there is nothing to prevent the court from designating someone to assist in the supervision of a particular probationer if the court felt that such was desirable. The evidence that Madison County did not have a probation officer should not have been admitted. Wood v. State, Tex.Cr.App., 516 S.W.2d 667. However, in view of the fact that this situation had already been brought out by the testimony of the sheriff without objection, we hold that the error was not preserved.

The judgment is affirmed.

Opinion approved by the Court.


author: DALLY, Commissioner.

text:
    Blane Eugene BENNETT, Appellant, v. The STATE of Texas, Appellee.
    No. 49600.
    Court of Criminal Appeals of Texas.
    May 7, 1975.
    Rehearing Denied May 28, 1975.

      Paul W. Anderson, Marshall, for appellant.
    Sam Baxter, Dist. Atty., Marshall, 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 murder without malice, committed by driving a motor vehicle while intoxicated, in violation of Article 802c, Vernon’s Ann. P.C. Because of deficiencies in the record this appeal was dismissed in a Per Curiam opinion and was abated in another Per Curiam opinion. The record is now properly before us for consideration.

The appellant waived a jury trial and entered a plea of not guilty before the court; after hearing the evidence and finding the appellant guilty, the court assessed punishment of imprisonment for five years. In his first of two grounds of error the appellant urges that evidence of the alcoholic content of his blood specimen was erroneously admitted because the blood specimen was taken from him without his consent contrary to statutory provisions. In his Second ground of error the appellant urges that the evidence is insufficient to sustain the conviction because there is insufficient proof to show he was intoxicated at the time of the collision.

Over objection expert testimony was admitted that the alcoholic content of the appellant’s blood was .22 of 1% at the time of the collision. The appellant objected, contending that the blood specimen was taken from him without his consent. On appeal he argues that the taking of his blood without his consent was contrary to and in violation of Article 67011-5, Vernon’s Ann.Civ.St.

The appellant does not urge reversal on constitutional grounds. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972). But in Olson v. State, supra, it was said:

“As earlier noted, the Legislature has recently acted in this area. Article 802f, Vernon’s Ann.P.C., as amended (Acts 1971, 62nd Leg.R.S., ch. 709, p. 2340, effective June 7, 1971). Even though the overruling of Trammell [v. State, 162 Tex.Cr.R. 543, 287 S.W.2d 487] may have removed a constitutional impediment of consent as to the taking of a blood test or other chemical tests, this does not obviate the necessity of compliance with statutory provisions, even though statutory requirements may not now be constitutionally required.”

The appellant relies solely upon the statutory provisions which were found in Article 802f, V.A.P.C. on the day of the alleged offense; these provisions have since been designated as 67011-5, V.A.C.S. by authority of Sec. 5, Acts 1973, 63rd Leg., p. 995, ch. 399, enacting the New Penal Code. The pertinent part of the statute reads:

“Section 1. Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of this Act, to a chemical test, , or tests, of his breath for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while a person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor. Any person so arrested may consent to the taking of any other type of chemical test, or tests, to determine the alcoholic content of his blood, but he shall not be deemed, solely on the basis of his operation of a motor vehicle upon the public highways of this state, to have given consent to any type of chemical test other than a chemical test, or tests, of his breath. .
“Sec. 2. If a person under arrest refuses, upon the request of a law enforcement officer, to submit to a chemical breath test designated by the law enforcement officer as provided in Section 1, none shall be given, . . . . if, upon such hearing the court finds (1) that probable cause existed that such person was driving or in actual physical control of a motor vehicle on the highway while under the influence of intoxicating liquor at the time of the arrest by the officer, (2) that the person was placed under arrest by the officer at such time and before offering the person an opportunity to be tested under the provisions of this Act .
“Sec. 3(a) Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle and while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person’s blood at the time of the act alleged as shown by chemical analysis of his blood, breath, urine, or any other bodily substance, shall be admissible and if there was at that time 0.10 percent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor.
“(d) The person tested may, upon request and within a reasonable time not to exceed two hours after the arrest, have a physician, qualified technician, chemist, or registered professional nurse of his own choosing administer a chemical test, or tests, in addition to any administered at the direction of a law enforcement officer. . . . ” (Emphasis added.)

The appellant’s reliance upon the provisions of Article 802f, V.A.P.C. (now Article 6701Z-5, V.A.C.S.) is misplaced. The evidence in this case does not show and the appellant does not contend that he was under arrest at the time the blood specimen was taken. Article 802f, V.A.P. C. by its explicit terms applies only to persons who have been arrested.

The evidence of the alcoholic content of the appellant’s blood was admissible, and the evidence is ample to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Woodrow RANSONNETTE, Appellant, v. The STATE of Texas, Appellee.
    No. 49808.
    Court of Criminal Appeals of Texas.
    April 30, 1975.
    Rehearing Denied May 28, 1975.

      Dennis L. White, Edith L. James, Dallas, of counsel, for appellant.
    Henry Wade, Dist. Atty. and W. T. Westmoreland, Jr., Douglas D. Julder and Jim Burnham, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is kidnapping for extortion under Article 1177a, Vernon’s Ann.P.C.; the punishment, 5005 years.

Appellant and his brother were indicted and jointly tried for the kidnapping. This appeal relates only to appellant’s conviction.

Appellant’s first ground of error is the failure of the trial court to grant his motions for severance. His first motion alleged that appellant had no prior conviction, while his brother had several. The second motion alleged that appellant had one prior conviction that resulted in a probated sentence, “which had been lived out.”

Article 42.12, Sec. 7, Vernon’s Ann.C.C.P. provides that upon satisfactory completion of the probation period a court may set aside the verdict, dismiss the charges and release the probationer from all disabilities relating to conviction. However, no evidence was offered in support of the motions at the time they were presented. Absent a showing that the prior conviction had been set aside or that it was otherwise inadmissible, appellant was not entitled to a severance as a matter of right pursuant to Article 36.09, V.A.C. C.P., and no error was committed by the trial court. Nelson v. State, Tex.Cr.App., 503 S.W.2d 543; Robinson v. State, Tex.Cr.App., 449 S.W.2d 239; Thornton v. State, Tex.Cr.App., 451 S.W.2d 898.

Further, since neither appellant nor his co-defendant testified before the jury at the guilt phase or the punishment phase and no mention is made at the trial on the merits of the prior record of either co-defendant, no apparent harm to appellant resulted from the joint trial. Sonderup v. State, Tex.Cr.App., 418 S.W.2d 807.

By ground of error two appellant contends that the court erred in declining his motion for change of venue. In support of this motion, appellant called two criminal defense attorneys, a news coordinator for a TV station, a staff writer for a local newspaper, a former assistant district attorney, an employee of a local TV news department, a director of photography of a local TV news program, and a reporter for a local newspaper. These witnesses expressed the opinion that appellant could not obtain a fair trial in Dallas County because of the incident publicity. In addition, he introduced nine written exhibits. The first is a front page account of the fact that a $250,000 ransom was paid and that a kidnapped socialite had been freed. The second exhibit told of the arrest of appellant and his brother, and gave a brief description of them, but painted them in as favorable a light as possible under the circumstances. It quoted a neighbor as saying that one of the brothers “took care of his children and played with them” and “in my opinion, he was a pretty good guy”. The third was a front page story from another local newspaper with a banner reading “Dallas Socialite Freed Unharmed. Two Suspects in Kidnapping Jailed”. Appellant was identified in the following language: “The Ransonette brothers were arrested at 10 a. m. Friday. The brothers offered no resistance as they were arrested, and then arraigned at the scene by Justice of the Peace Robert Cole.” This was accompanied by one column pictures of the appellant appearing at the bottom of the page. The fourth was a news story showing appellant conferring with his attorneys and stating that he was remanded to jail in lieu of $100,000 bond, and gave some details of the payoff. The fifth was a short news article comparing the present case with another of the same nature. The sixth was a front page news story concerning the other case wherein the appellant was not mentioned. The seventh was a news story concerning the motions to change venue in a case against a former policeman and this appellant. There was no connection between the cases. The eighth was a short inside story relating to the motion to reduce the appellant’s bond. The ninth was an inside story dated approximately a month in advance of the trial relating to the bond hearing which contained this paragraph:

“Attorney White repeatedly established Monday that the brothers cooperated with officers, did not resist arrest and showed no violence of injurious nature in attempt to have their bond lowered.”

The State in rebuttal called a news reporter, an attorney for an insurance company, a bailiff for the central jury room, an employee of Kelly Services, a Doctor of Veterinary Medicine, an assistant city editor of a local newspaper, a business representative of a division of the Teamsters Union and a real estate developer, all of whom expressed the opinion that the appellant could receive a fair trial in Dallas County and that the pre-trial publicity had not prejudiced such a trial. It also introduced eight separate affidavits from Dallas County citizens stating that in their opinion appellant’s chance of achieving a fair trial had not been impaired by the publicity which had been incident to the event. The State further points out that out of the 47 prospective jurors only one was excused by agreement of both the State and appellant because she stated she was not sure she could set aside what she heard of the case.

It will thus be seen that the trial judge was presented with a fairly evenly divided choice, and we hold that he did not abuse his discretion in declining to change venue. See Garcia v. State, Tex.Cr.App., 513 S.W.2d 82; Phillips v. State, Tex.Cr.App., 511 S.W.2d 22; Creel v. State, Tex.Cr.App., 493 S.W.2d 814; Morris v. State, Tex.Cr.App., 488 S.W.2d 768; Norwood v. State, Tex.Cr.App., 486 S.W.2d 776; Bridges v. State, Tex.Cr.App., 471 S.W.2d 827,

Appellant’s last ground of error charges that his sentence is excessive. A penalty within the range prescribed by the Legislature, as is the one in the case at bar, will not be disturbed. Jones v. State, Tex.Cr.App., 504 S.W.2d 906. In Angle v. State, Tex.Cr.App., 501 S.W.2d 99, we called attention to the concern this Court has felt over the use of the open end statutes to impose inordinate punishments. See also Sills v. State, Tex.Cr.App., 472 S.W.2d 119. We further noted that the New Penal Code (1974) eliminated this situation.

Finding no reversible error, the judgment is affirmed.

      . The offense occurred in December 1972. The trial took place in April 1973.

      . The transcript contains four documents relating to appellant’s prior conviction, one of which was the order discharging the appellant from probation, but the record does not reflect that these documents were introduced into evidence or called to the trial court’s attention at the time he ruled upon the motions for severance. They were introduced into evidence for the first time at the hearing on punishment.

      . Appellant relies upon Rubenstein v. State, Tex.Cr.App., 407 S.W.2d 793. The writer has more than a passing acquaintance with that case.
      The newspaper publicity in Ruby was far greater than any that had ever been presented to this Court. The case at bar presents a mere drop in the bucket by comparison.


author: DOUGLAS, Judge.

text:
    Burley Clifton HARRYMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 49309.
    Court of Criminal Appeals of Texas.
    April 23, 1975.
    Rehearing Denied May 21, 1975.

      B. D. Moye and Bird Old, Jr., Mt. Pleasant, for appellant.
    Henry Wade, Dist. Atty. and John H. Hagler, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and David S. Mc-Angus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the possession of heroin. Punishment was assessed at life.

The sufficiency of the evidence is not challenged. Appellant contends that his arrest was not based on probable cause, and therefore the evidence obtained from him was inadmissible.

Assuming the objection was sufficient, the legality of the arrest and the introduction of heroin found as a result of the subsequent search will be discussed.

Sandra Wood, assistant manager of the Oak Cliff Travel Lodge, testified that the guest in Room 30 was registered as Chuck Walter. They tried to locate him because he was behind in his rent. Miss Wood also testified that the employees at the motel never could find the guest but a lot of people were going in and out of the room. Upon his failure to pay the rent for several days, she, with another employee, entered the room and removed the clothing and personal effects. She also removed a rifle, two burnt spoons, pills, a large needle and a syringe. She put a “keeper key” on the door so that it could not be opened. After the door was locked, a woman called Miss Wood and asked why her husband’s key to Room 30 would not work. Miss Wood told the woman that the rent had not been paid and “for him to come by the office.” Miss Wood called the police. Officers Daugherty and Cummings responded to the call at about 8:00 p.m. on September 7, 1972. The officers saw what had been taken from the room. The officers received information from the National Crime Information Center that the rifle had been stolen in a Colorado burglary. They also checked the automobile license number listed on the motel check-in card. While Officer Daugherty was testifying, the following occurred:

“Q. (Prosecutor) Okay, let me ask you this, on her record there did she have a number to his car ?
“A. Yes, and my partner was obtaining information on her records, like those people require. They had a Texas license number that was on the vehicle, sir. We ran a registration check on it and it came back, I believe, a 1960 model Ford registered to a car lot in Irving, sir.
“Q. Was that from the same car that he had registered with the motel or was it a different description?
“A. I believe it was a different car, sir, and a different model and everything.”

Miss Wood had given the officers information on some six different matters such as theft calls about items stolen from the rooms and a call about a prowler. She was credible and reliable. The officers told Miss Wood that they were going off duty and they did not think the guest would return, but if he did, she should notify the police. Appellant returned to the motel at approximately 4:15 a.m. on September 8, 1972. The police were called. Officers Raz and Conway responded to the call. At Miss Wood’s request, one of the officers took appellant outside the lobby while the other officer talked to her. Miss Wood told them what the other officers had told her — that the rifle had been stolen in Colorado and that the license plates on the car listed on the registration card were stolen.

During the examination of Officer Raz, the following occurred:

“Q. And did you further learn that certain license plates on the person’s car had been reported as stolen?
“A. Well, I found out that the license plates that were on the car when the man in question checked in were stolen.
“Q. As you were there, did you see that person she is referring to come in?
“A. He was in the place of business when I walked in.
“Q. Did she point him out to you ?
“A. Yes, sir.
“Q. Was this the same man that she had indicated that had that stolen rifle with the scope ?
“A. Yes, sir.
“Q. And the same one who had been registered with the stolen plates?
“A. Yes, sir.”

The following also occurred during the examination of Officer Raz by the court:

“THE COURT: Okay. Now what else did she tell you besides what had been found?
“OFFICER RAZ: She told us that when he, the defendant, registered in, told us the name he used, Walter, and that he registered in with a certain Texas license plate, and that the officers that had been there previously had checked this license plate and found it had been stolen off a used car lot off a 1960 Ford in Irving, and that it was on this Pontiac.”

The officers who went to the motel early in the evening testified that they learned the license plates were stolen.

The record further reflects the following:

“THE COURT: All right, you said Officer Conway searched him, right ?
“OFFICER RAZ: Yes, sir, right.
“THE COURT: All right, now, who instructed him to search him, or did he take that upon himself ?
“OFFICER RAZ: When I walked up to Officer Conway and the defendant, he wanted to know what was going on, the defendant did, and I told him that he was under arrest for investigation of theft and told Officer Conway to search him.
“THE COURT: All right, now you told Officer Conway to search him?
“THE WITNESS: Yes, sir.
“THE COURT: All right, what was your purpose at that time in having the defendant searched ?
“THE WITNESS: Well, when they are under arrest we always try to check them, check them and check them out the best we can, try to get any weapons off of them, or knives, anything of that nature that would endanger us.
“THE COURT: All right, now what was your purpose in, not what you do all the time, but on this specific instance, what was your purpose to the search ?
“THE WITNESS: For our safety.
“THE COURT: For weapons ?
“THE WITNESS: Yes, sir.”

Officer Conway testified that they searched him before putting him in the squad car:

“A. (Officer Conway) When my partner came out he said he was under arrest for investigation of theft— excuse me, yes, theft.
“Q. And did you have an occasion to search him at that time ?
“A. My partner said to take him to the car and search him before I put him in the car, and I did.
« * * *
“A. When I was searching this man I had my hand on the inside of his waistband, going around, checking for weapons or razor blades and things like that, when I came to the small of his back there I felt a lump and I pulled that out and it was a condom tied in a knot and there were several others inside of that one, smaller ones inside of the larger one.”

Appellant was not identified to the arresting officers until they arrived at about 4:15 in the morning shortly before his arrest. The other officers had been there at approximately 8:00 o’clock in the night. The officers who first checked with Miss Wood stated after the room had been locked that they did not think that the guest would return but if he did other officers on duty should be called.

It appears that the officers had sufficient probable cause to believe that the license plates on the car driven by the occupant of Room 30 were stolen. The car had not been impounded by the officers. They had a right to arrest appellant for theft of the license plates.

Under the circumstances of this case, the arrest was based upon probable cause.

The question is not could the officers have obtained an arrest warrant earlier, but, was the arrest unreasonable under the circumstances ?

To hold otherwise would have permitted this appellant to have driven away, free from arrest, apparently in a stolen car or a car with stolen license plates just because the officers did not get an arrest warrant in the late hours of the night, between 8:00 at night and 4:15 o’clock the next morning. They had stated that they did not expect him to return.

Butler v. State, 151 Tex.Cr.R. 244, 208 S.W.2d 89 (1948), cited by appellant, is not in point. The burglary was committed on a Thursday night, the license number of Butler’s car was obtained on Friday night and he was arrested at his home on Saturday night. Those facts are not close to the facts in the present case. The officers did not know appellant. They did not think he would return. They did not arrest him at his home.

The Supreme Court of the United States has not held such a search illegal. The language of Justice Powell of the Supreme Court of the United States in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54, (1975), should be noted. It is as follows:

“Maximum protection of individual rights could be assured by requiring a magistrate’s review of the factual justification prior to any arrest, but such a requirement would constitute an intolerable handicap for legitimate law enforcement. Thus, while the Court has expressed a preference for the use of arrest warrants when feasible, Beck v. Ohio, supra, 379 U.S. [89, 91], at 96, 85 S.Ct. [223], at 228 [13 L.Ed.2d 142]; Wong Sun v. United States, 371 U.S. 471, 479-482, 83 S.Ct. 407, 412-414, 9 L. Ed.2d 441 (1963), it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant. See Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 1232, 92 L.Ed. 1663 (1948).”

Next, appellant contends that reversible error was committed when Officer Conway searched him and discovered the heroin and asked, “What is this?” Appellant answered, “You know what it is. It is heroin.”

An objection was made in a hearing outside the presence of the jury during the trial that the statement was inadmissible because he was under arrest and was not warned of his rights before it was made. The State urges that because the testimony came in during the trial without objection nothing is presented for review.

The objection was sufficient and appellant obtained an adverse ruling. Article 40.09, Section 6(d)(3), Vernon’s Ann.C.C. P., provides:

“When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence shall be admitted, then in that event such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of such objections being renewed in the presence of the jury.”

See Dion and Powers v. State, 456 S.W.2d 97 (Tex.Cr.App.1970). Cf. Brazzell v. State, 481 S.W.2d 130 (Tex.Cr.App. 1972), which holds that a motion in limine some time prior to the trial could not be relied upon for review, and that an objection should be made when the evidence is offered at the trial.

The question presented: Did the trial court have sufficient facts to conclude that the statement was res gestae of the arrest ?

Article 38.22, Section 1(f), V.A.C.C.P., provides:

“Nothing contained herein shall preclude the admissibility of any statement made by the defendant in open court at his trial or at his examining trial in compliance with Articles 16.03 and 16.04 or of any statement that is the res gestae of the arrest or of the offense.”

In DeHart v. State, 468 S.W.2d 435, (Tex.Cr.App.1971), the arrest was for the murder of his father. An officer with a twelve-gauge shotgun told DeHart that he was under arrest, to put his hands up and drop his gun. DeHart dropped his pistol and asked if he could get dressed. The officer accompanied him to the bedroom and asked if he realized that his father was dead. And he replied: “‘Yes; I know. I only wish it had been my mother.’ ” This Court held that this statement was res ges-tae of the arrest.

In Wright v. State, 440 S.W.2d 646 (Tex.Cr.App.1969), the accused had a gun in his ■ hand. He was arrested and was asked, “Why did you shoot him ?” He said that he was going to kill the s.o.b. This Court held that there was sufficient facts to conclude that the statement was admissible under the verbal acts doctrine and as res gestae of the arrest.

See Enriquez v. State, 501 S.W.2d 117 (Tex.Cr.App.1973), and Goodney v. State, 501 S.W.2d 311 (Tex.Cr.App.1973).

In determining whether statements are admissible as res gestae, each case must be considered on its own merits. Patterson v. State, 458 S.W.2d 658 (Tex.Cr.App.1970).

In Jones v. State, 458 S.W.2d 654 (Tex.Cr.App.1970), this Court, in part, held:

“If a statement is admissible as res gestae the fact that it is made in response to an inquiry, or while under arrest does not render the testimony inadmissible. Spann v. State, supra [448 S.W.2d 128]; Fowler v. State, 162 Tex. Cr.R. 513, 287 S.W.2d 665; Heath v. State, Tex.Cr.App., 375 S.W.2d 909.”

See also Pilcher v. State, 503 S.W.2d 547 (Tex.Cr.App.1974); Tezeno v. State, 484 S.W.2d 374 (Tex.Cr.App.1972); Anderson v. State, 479 S.W.2d 57 (Tex.Cr.App. 1972); Moore v. State, 440 S.W.2d 643 (Tex.Cr.App.1969); Ramos v. State, 419 S.W.2d 359 (Tex.Cr.App.1967). Cf. Martinez v. State, 498 S.W.2d 938 (Tex.Cr.App.1973). See Hill v. State, 518 S.W.2d 810 (Tex.Cr.App.1975). Cf. Smith v. State, 507 S.W.2d 779 (Tex.Cr.App.1974).

The Court also stated in Jones:

“ . . . acts and declarations which are a part of the res gestae are admissible notwithstanding the fact that they may not be admissible as confessions or admissions, for the rule of res gestae is independent of, superior to and cannot be limited by the rules relating to confessions or admissions after arrest. Spann v. State [Tex.Cr.App.], 448 S.W.2d 128 and cases there cited. See also 24 Tex.Jur.2d 137, Sec. 600; Fisk v. State, Tex.Cr.App., 432 S.W.2d 912.”

No reversible error is shown. The judgment is affirmed.

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

      . It is not necessary to discuss their right to arrest to prevent the consequences of theft.


author: ODOM, Judge. MORRISON, Judge

text:
    David Allen RUTH, Appellant, v. The STATE of Texas, Appellee.
    No. 49706.
    Court of Criminal Appeals of Texas.
    May 7, 1975.
    Rehearing Denied May 28, 1975.
    Percy Foreman & Dick DeGuerin, Houston, On appeal only, for appellant.
    Carol S. Vance, Dist. Atty., and James C. Brough & Jim Ezer, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

The appellant was convicted of murder; punishment was assessed at fifteen years.

Several grounds of error are raised pertaining to placing the appellant’s juvenile offenses before the jury. The record is replete with questions by the prosecutor both stating and eliciting the specific nature of offenses allegedly committed by the appellant as a juvenile and the arrests and dispositions in those cases.

At the guilt-innocence stage of the trial, the prosecutor elicited testimony that the appellant had been charged as a juvenile at age 14 with assault on a police officer. The evidence of malice and intent to kill was extremely weak. The obvious string of inferences he sought to draw from the introduction of this evidence was that since the appellant had been charged with assault on a police officer, he was a violent person, and therefore probably shot the deceased with malice aforethought.

At the punishment stage the prosecutor continued discussing juvenile offenses and dispositions. Appellant took the stand and testified essentially that he had never been convicted of a felony and would abide by the terms of probation, if granted. him. The cross-examination by the State began as follows:

“Q. Let me ask you this, David, you have been given at least five probations so to speak, have you not?
“A. No sir, that is not true.”

The prosecutor then elicited admissions by the appellant of at least three juvenile arrests for specific crimes. It was established that the appellant had been arrested for aggravated assault on a police officer and being drunk, for “failure to move on,” and for possession of narcotics.

In Rivas v. State, Tex.Cr.App., 501 S.W.2d 918, we held that a witness’ juvenile delinquency record may not be used to impeach him. Dispositions under proceedings against juveniles are never convictions for crime. Article 51.13(a), V.T.C.A. Family Code. This Court said in Rivas, supra, at p. 919, “An adjudication of juvenile delinquency may be based upon proof of acts which would constitute felonies or misdemeanors involving moral turpitude if committed by an adult, but such an adjudication does not constitute conviction for a felony or a misdemeanor involving moral turpitude.”

Article 51.13(b) of the Family Code provides :

“The adjudication or disposition of a child or evidence adduced in a hearing under this title may be used only in subsequent proceedings under this title in which the child is a party or in subsequent sentencing proceedings in criminal court against the child to the extent permitted by the Texas Code of Criminal Procedure, 1965.”

With regard to the predecessor of Article 51.13, supra, this Court stated that the terms of the article were “intended to protect the accused from the odium and stigma attached to any act of youthful indiscretion which had eventuated in a prosecution.” Smith v. State, 113 Tex.Cr.R. 124, 18 S.W.2d 1070.

The prosecutor’s presentation of the appellant’s juvenile offenses and the dispositions of those cases to the jury was serious error designed to prejudice the jury and to deny appellant a fair and impartial trial. Although there were not proper objections in some instances, this egregious action by the prosecutor was highly inflammatory and calculated to prejudice the defendant.

“Our Bill of Rights, Art. I, § 10, Texas Const., guarantees to every person a fair and impartial trial. This guarantee is one of the fundamentals upon which rests the perpetuity of this government. It is the duty of the courts to preserve and to maintain that right, and this regardless of how heinous or revolting the crime committed may be.
“If there exists in the mind of this court any doubt as to the fairness or impartiality of the trial, it becomes our duty to award a new trial. Without sin-gularizing any one particular fact, but considering all the facts and circumstances shown by this record, there does exist that doubt.” Judge Davidson writing for this Court in Williams v. State, 145 Tex.Cr.R. 536, 170 S.W.2d 482, 489 (1943).

We think it clear from the record that the repeated improper questions of the prosecutor denied appellant a fair trial.

The judgment is reversed and the cause remanded.

DOUGLAS, J., concurs in the result.

MORRISON, Judge

(concurring).

I join in the reversal of this conviction because of the intolerable conduct of the prosecutor. Such conduct as this record reveals would never have occurred had the appellant’s counsel been alert and diligent. When we are confronted with such a case, we should not hesitate to reverse on the grounds of inadequate representation by counsel. The failure to make the proper objection to clearly inadmissible evidence relating to juvenile convictions approximately 64 times during one trial could not be construed as trial strategy. Ex parte Gallegos, Tex.Cr.App., 511 S.W.2d 510; Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1975).

      . Among the questions asked of appellant’s father on cross-examination were these:
      “Has your son ever done this [referring to the offense charged] before to anyone, sir? . . . He has never threatened anyone with a gun before? ... To your knowledge? . . . With a gun, now . Has he ever made an assault upon anyone with a gun? ... Or attempted to make an assault? . . . How about a police officer? ... To your knowledge, he has never assaulted a police officer. Is that what you are telling us? . . . With a gun? . . . Let’s don’t play on words, Mr. Ruth. An assault. We have talked about the gun and talked about an assault. Let’s don’t play on words. Is that the only assault he made on an officer? . . . It’s your testimony he never made another assault on an officer and attempted to take the shotgun away from him? . . . Let’s don’t play on words, Mr. Ruth. Is it not true that you did know that he made an assault or attempted to make an assault? . . . Directing your attention back to the time you said he was arrested for being drunk. Was he not charged, sir, with the offense of aggravated assault on a police officer and for drunk also?”

      . Among the questions asked appellant on cross-examination were these:
      “Is it not true you were arrested for the offense of malicious mischief and released to your parents? [The record reflects that appellant was 6 years old at the time of this incident.] . . . Do you recall, then, or were you too young, or do you remember when you were arrested for the offense of aggravated assault on a police officer and being drunk? . . . Do you recall or remember the offense of. being arrested for failure to move and were released to your parents? . . . Well, how many times has your father had to go down and get you, David, or are there so many you don’t remember them all? . . . Do you remember a time you were arrested for possession of narcotics and released to your parents? . . . Do you remember the time you were arrested on traffic and released to your parents again? . . . You don’t recall being arrested on that time and released back on February 19th, 1972? . . Then you remember at least three, is that correct?”

      . Article 1692, C.C.P. (1925) which became Article 2338-1, Section. 13(d)(e), V.A.C.S.