text:
    Carlos RUEDAS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 57947, 57948.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.

      Janet Stockard, Austin, for appellant.
    Ronald Earle, Dist. Atty. and Charles E. Hardy, Asst. Dist. Atty., Austin, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

ROBERTS, Judge.

These are appeals from a conviction for burglary of a vehicle (Cause No. 57,948) and an order of the court revoking appellant’s probation (Cause No. 57,947).

On April 7,1976, appellant was convicted, after pleading guilty, for the offense of possession of a prohibited weapon. See V.T.C.A., Penal Code, Section 46.02. Punishment was assessed by the court at two years’ confinement, probated. One of the conditions of appellant’s probation was that he commit no offense against the laws of this or any other State or the United States.

On May 19,1976, the State filed a motion to revoke appellant’s probation alleging that he violated the foregoing condition of probation by committing the offense of burglary of a vehicle on May 11, 1976. The State’s motion to revoke was heard along with appellant’s trial for the burglary offense and, after hearing the evidence, appellant was convicted by the court who then assessed punishment at two years’ confinement and ordered appellant’s probation revoked on the ground alleged in the State’s motion.

The appellant contends that the court erred by summarily refusing to allow him to make a closing argument on the issue of guilt or innocence for the burglary offense and on the issue of whether or not his probation should be revoked. For the reasons to be stated, we reverse the judgment in each case.

Laura Hernandez testified that on May 11, 1976, between 5:00 and 5:30 p. m., she was peering out of her bedroom window while feeding her baby when she observed two men open the hood of the complainant’s pickup truck and remove what appeared to her to be the truck’s battery; she then observed the two men hurriedly leave the scene in a red Chevrolet automobile with a blue fender. Hernandez subsequently notified the Austin police of this suspicious incident.

Austin police officer Billy Sifuentes testified that he was dispatched to the scene of the offense at approximately 5:15 p.m. and, en route, he observed a vehicle matching the description given by Hernandez being driven by the appellant in the opposite direction; Sifuentes then advised other officers of the direction of appellant’s travel. Sifuentes also positively identified the appellant as the driver of the vehicle in question.

Officer Chris Walker testified that approximately 20 minutes after the offense was reported, he discovered the appellant and three other persons standing near the rear of the vehicle in question while it was parked on a residential street approximately two or three miles away from the scene of the offense. Several automobile batteries, including the complainant’s, were recovered from the appellant’s car.

The appellant contends that the court erroneously denied him the right to make a closing argument on the law and the facts at the close of the testimony. Immediately after both sides rested, the record reflects the following colloquy between the court and appellant’s counsel:

“THE COURT: Having heard the evidence in the case, I find the defendant guilty of burglary of a vehicle in Cause No. 51,010, and find that he has violated his probation in Cause No. 50,196. His punishment is assessed at a term of two years in each case, he has ten days in which to be sentenced, or he may waive time and be sentenced at this time.
“MS. STOCKARD: Your Honor, first of all, are we going to be allowed any time to make a closing argument?
“THE COURT: No.
“MS. STOCKARD: Okay, we object to that, and please note our exception. . . ”

Thus, it appears from the record that the appellant’s request for closing argument was summarily denied by the court.

We are confronted with the question of whether or not the right to be represented by counsel guaranteed by both the state and federal constitutions also insures the right to have counsel present closing argument at the conclusion of the testimony, and if so, whether or not this right applies equally in probation revocation hearings as well as criminal prosecutions. See and compare Davenport v. State, 574 S.W.2d 73 (Tex.Cr.App.1978), which differentiates probation revocation hearings from criminal prosecutions and discusses the different considerations which prevail at each proceeding.

Our state constitution provides that an accused “shall have the right of being heard by himself or counsel, or both . . . .” Tex.Const., Art. I, Section 10. And this has been held to be a “positive” right. Ferguson v. State, 133 Tex.Cr.R. 250, 110 S.W.2d 61 (1937) (On Motion for Rehearing). Likewise, the Sixth Amendment of the federal constitution, as extended to the states through the Fourteenth Amendment, provides that the accused has a right to assistance of counsel which “has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process . . . .” Herring v. New York, 422 U.S. 853, 857, 95 S.Ct. 2550, 2553, 45 L.Ed.2d 593 (1975). In Herring, the Supreme Court observed that the very premise of the Ameri-can adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free. The Court further held that the total denial of the opportunity for final argument in a nonjury as well as a jury criminal trial is a denial of the basic right of the accused to make his defense. “Closing argument,” said the Court, “serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case.” Ibid, at 422 U.S. 862, 95 S.Ct. 2555. Besides that, the Court noted that closing argument is also useful to point to direct conflicts in the trial testimony and to stress both inconsistencies in testimony and the credibility of defense witnesses.

This Court has interpreted our state constitutional right “to be heard by counsel” to mean that the accused has a right to be heard in argument on the case both as to the law and the facts at the conclusion of the testimony. In Anselin v. State, 72 Tex. Cr.R. 17, 160 S.W. 713 (1913), at the conclusion of the testimony, the court immediately announced its finding of guilt, and the defendant’s counsel immediately demanded the right to be heard in argument which request was refused by the court. In reversing the judgment of conviction, this Court held:

“The Constitution, art. I, Section 10, expressly provides that the accused shall have the right of being heard by himself or counsel, or both. The courts, in passing upon this question, say this is a valuable right of which the appellant can under no circumstances be deprived. Of course he can waive it, but he has a right to be heard unless he waives it. . [citing cases].” Ibid, at 714.

Likewise, in Ferguson v. State, supra, under facts similar to those of Anselin v. State, supra, and the present case, we followed our decision in Anselin and held that the defendant was “denied a right guaranteed by a positive provision of section 10, art. I, of the Constitution . . ..” 110 S.W.2d 63. See also Carlile v. State, 451 S.W.2d 511 (Tex.Cr.App.1970).

We conclude that the appellant did not waive his right to present a closing argument at his trial for burglary of a vehicle and that the trial court erred by refusing to honor the appellant’s request to be heard. The action of the trial court denied the appellant his constitutional right to the assistance of counsel as provided by the respective constitutions.

We must now consider the question of whether or not the trial court abused its discretion in refusing to allow the appellant to present closing argument on the State’s motion to revoke his probation. In Davenport v. State, 574 S.W.2d 73 (Tex.Cr.App.1978), we held:

“At a revocation of probation proceeding, a defendant need not be afforded the full range of constitutional' and statutory protections available at a criminal trial. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). At such a proceeding, guilt or innocence is not at issue, and the trial court is not concerned with determining the defendant’s original criminal culpability. ‘The question at a revocation hearing is whether the appellant broke the contract he made with the court after the determination of his guilt.’ Kelly v. State, Tex.Cr.App., 483 S.W.2d 467, 469. Also of significance is the fact that ‘. . . the result of such a hearing to revoke is not a conviction but a finding upon which the trial court might exercise its discretion by revoking or continuing probation.’ Hill v. State, Tex.Cr.App., 480 S.W.2d 200, cert. denied, 409 U.S. 1078, 93 S.Ct. 694, 34 L.Ed.2d 667 (emphasis added). ‘A probation revocation hearing is not ... a criminal prosecution.’ Hill v. State, supra. It has been denominated as ‘administrative in nature.’ Hill v. State, supra.”

This is not to say, however, that all constitutional guarantees of due process fly out the window at a probation revocation hearing. A probationer is entitled to certain due process protections in the revocation proceedings. Bradley v. State, 564 S.W.2d 727 (Tex.Cr.App.1978); Whisenant v. State, 557 S.W.2d 102 (Tex.Cr.App.1977). In Gagnon v. Scarpelli, supra, the Supreme Court enunciated the “minimum requirements of due process” which must be observed in probation revocation hearings. They include: written notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, the opportunity to be heard in person and to present witnesses, the right to confront and cross-examine adverse witnesses, a “neutral and detached” hearing body, and a written statement by the fact finders as to the evidence relied on and the reasons for revoking probation. See also Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

In Whisenant v. State, supra, we observed that the procedure for revoking probation in this State affords a probationer far greater safeguards than those required by Gagnon v. Scarpelli, supra, and Morrissey v. Brewer, supra. We stated in Whisen-ant that “The proceeding to revoke probation, although not the same as a criminal trial, requires substantially all the same procedure. ... An adversary proceeding is afforded the probationer in which almost all of the rules of evidence and criminal procedure are applicable. . . ” 557 S.W.2d at 105.

In Texas, a probationer has the right to be represented by counsel at a revocation hearing. Ex parte Guzman, 551 S.W.2d 387 (Tex.Cr.App.1977); Ex parte Flores, 537 S.W.2d 458 (Tex.Cr.App.1976). The right to be effectively represented by counsel would have little meaning if the trial court were permitted to allow counsel to represent his client at one phase of the hearing and not another. We therefore hold that a probationer’s right to be represented by counsel insures to him the right to be represented at all phases of the hearing, including the argument phase. This is so because closing argument is crucial to the “adversary fact-finding process,” Herring v. New York, supra, and, a revocation hearing being an adversary proceeding, Whisenant v. State, supra, the right to be represented by counsel at closing argument is no less critical there than at a traditional criminal trial.

We conclude that by refusing to allow appellant’s counsel to present a closing argument on the question of whether or not probation should be revoked, the trial court denied the appellant his right to the effective assistance of counsel at the probation revocation proceeding, Ex parte Flores, supra, and that since the appellant did not waive his right to present a closing argument, the trial court’s action, in this instance, constituted an abuse of discretion. See Bowers v. State, 414 S.W.2d 929 (Tex.Cr.App. 1967); Freeman v. State, 491 S.W.2d 408 (Tex.Cr.App.1973).

The judgments are reversed and remanded.

      . Tex.Const., Art. I, Section 10.

      . U.S.Const., amend. VI.


source: Caselaw Access Project

author: PHILLIPS, Judge.

license: Public Domain

text:
    Jerry LUCKETT, Appellant, v. The STATE of Texas, Appellee.
    No. 58072.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 19, 1979.

      Frank P. Smarzik, Jr.*; Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Kenneth W. Sparks, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of burglary of a building, in violation of Section 30.02 of the Texas Penal Code. Punishment was assessed by the court at life, having found that the appellant had been twice previously convicted of felonies as alleged in the enhancement portion of the indictment.

In his first four grounds of error, appellant alleges that the evidence was insufficient to sustain a conviction since there was no proof of (1) a habitation, (2) a burglarious entry, (3) positive identification of the property taken, and (4) more than appellant’s mere presence at the scene of the burglary.

The evidence reflects that Mrs. R. A. Milam, Jr., who lived at 6214 Belerest in Houston, was awakened from a nap on August 9,1976, at about 2:45 p. m. by two men who had driven up in the driveway of the adjacent house next door at 6302 Belerest. She then saw the appellant remove a window from an enclosed porch, open the trunk of the car which he was driving, and then apparently load an air conditioner into the car. The other man, wearing a white sailor cap, assisted the appellant. As the appellant drove off, Milam was able to see the license number of the car. Milam noted that she had seen both men in the house, and they had left the back door standing open when they departed.

Robert Martinez, the owner of the vacant house at 6302 Belerest, stated that the structure had four walls, a roof, and was completely enclosed. He indicated that an entire panel of glass had been removed from the rear window of the enclosed porch, and an air conditioner was missing. The house was not open to the public, and Martinez did not give consent to the appellant to enter the house or to remove the air conditioner.

' Investigation by the police revealed that the car seen by Milam belonged to the appellant. A latent fingerprint lifted from inside the window at the point of entry was identical with the left ring fingerprint of the appellant.

Officer J. B. Austin stopped appellant for a driver’s license check at 3:30 p. m., also on August 9, 1976. A passenger in the car at that time was wearing a sailor hat. During the license check, the appellant opened the trunk of the car and removed an air conditioner hose at the request of an unidentified acquaintance. At that time Officer Austin saw a window air conditioning unit in the trunk. Although Officer Austin testified about seeing the air conditioner, the air conditioner itself was never entered into evidence.

Appellant’s first ground of error alleges that the evidence was insufficient to prove that he entered a “habitation,” as defined in Penal Code Section 30.01(1), apparently based on the testimony of the owner of the building, Robert Martinez, that the house had little furniture in it and had been vacant for two and a half years.

Appellant relies on our opinion in Jones v. State, Tex.Cr.App., 532 S.W.2d 596, wherein we held that a completed but vacant and unused house with no furniture that had water but no other utilities connected was not a habitation “adapted for the overnight accommodation of persons.”

Appellant’s reliance is misplaced. The indictment charged appellant with the burglary of a “building.” A building is defined in Penal Code Section 30.01(2) as “any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.”

We find the evidence sufficient to support the conviction for burglary of a building in this case. Day v. State, Tex.Cr.App., 534 S.W.2d 681. Appellant’s first ground of error is overruled.

Appellant’s second ground of error alleges that the evidence is insufficient to prove that there was a burglarious entry of the building in question. Penal Code Section 30.02(a) provides:

A person commits an offense if, without the effective consent of the owner, he:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; .

Further, Penal Code Section 30.02(b) provides:

For purposes of this section, “enter” means to intrude:
(1) any part of the body; or
(2) any physical object connected with the body.

The evidence showed that appellant was seen removing a window from an enclosed porch and was seen inside the house and then loading an air conditioner into his car. The evidence further provided that this building was not open to the public and that the owner had not given consent to the appellant to enter the house or to remove the air conditioner. We find the evidence sufficient to show a “burglarious entry” of the building in question in this case. Teniente v. State, Tex.Cr.App., 533 S.W.2d 805. Appellant’s second ground of error is overruled.

Appellant’s third ground of error alleges that the evidence was insufficient to sustain the conviction when there was no positive identification of the air conditioner as being the air conditioner taken from the house at the time of the burglary. The testimony of Officers Kuehn and Austin in no way positively identified the air conditioner seen in appellant’s trunk as being the same air conditioner taken from the house in question. This Court has held that when the only proof of a burglary is the possession of property claimed to have been recently stolen from a burglarized house, the evidence is insufficient if there is no positive identification of the property as being the property taken from the house at the time of the burglary. Reyes v. State, Tex.Cr.App., 468 S.W.2d 64. In this case, appellant’s possession of the air conditioner was not the only proof of the offense offered. Appellant was seen entering the building in question, loading the air conditioner into his car, and fingerprints were found at the site of the burglarious entry. Appellant’s third ground of error is overruled.

Appellant’s fourth ground of error alleges that the evidence only established appellant’s mere presence at the scene of the alleged crime. The evidence discussed above shows that appellant’s contention is without merit. Appellant’s fourth ground of error is overruled.

Appellant’s final ground of error argues that police officer testimony concerning the air conditioner in appellant’s trunk should have been suppressed because there was no evidence that consent was given for the “search” involved and that the appellant was initially stopped without a showing of probable cause.

The record reflects that Officers Austin and Kuehn initially stopped appellant for a routine driver’s license check in accordance with Article 6687b, Section 13, V.T.C.S. That statute reads in pertinent part:

. Any peace officer may stop and detain any motor vehicle operator for the purpose of determining whether such person has a driver’s license as required by this Section.

The evidence further shows that the officers had twice before stopped appellant and issued citations for driving without a license. The latter of these two previous citations was issued one month before the stop of which appellant complains. Officer Kuehn related that he recognized appellant on sight and stopped the appellant because he thought there was a probability that he was still driving without a license based on his previous immediate history.

First, appellant’s argument that consent was not given for the officers to “search” his trunk is without merit. Appellant testified that Officer Austin told him to open the trunk after the officer had searched his entire car. Officers Austin and Kuehn testified that while appellant was stopped for the license check, an apparent acquaintance of the appellant came up and asked if the appellant was through with his air conditioning hose. The appellant then opened his trunk to get the hose and the officers noticed an air conditioning unit lying in the trunk of the car. At that time the officers were not aware of the burglary earlier the same day and simply issued appellant a citation for driving without a license and left the scene.

Faced with conflicting testimony, the trial court overruled appellant’s motion to suppress and found that the appellant had voluntarily opened the trunk, and that the officers’ observation of the air conditioner in plain view was not a search and seizure in which consent was an issue. We agree. The trial judge, as fact finder in a hearing on a motion to suppress, may choose to believe or disbelieve any or all of the witness’s testimony. Clark v. State, Tex.Cr.App., 548 S.W.2d 888. See also U. S. v. Schoen, 434 F.2d 931, cert. denied, 404 U.S. 845, 92 S.Ct. 147, 30 L.Ed.2d 82 (5th Cir. 1970).

Second, a recent Supreme Court opinion has addressed a driver’s license check-stop question very similar to that which appellant raises. In the case of Delaware v. Prouse, - U.S. -, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979), the Court held:

Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.

We must first determine whether this decision is to be applied retroactively.

In United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), the. Supreme Court stated:

[I]f the law enforcement officers reasonably believed in good faith that evidence they had seized was admissible at trial, the “imperative of judicial integrity” is not offended by the introduction into evidence of that material even if decisions subsequent to the search or seizure have broadened the exclusionary rule to encompass evidence seized in that manner.
Id., 422 U.S. at 537, 95 S.Ct. at 2317.

The Court further held that any judicial enlargement of the exclusionary rule will be given retroactive effect only when “the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment” at the time it was conducted. Ibid. 422 U.S. at 542, 95 S.Ct. at 2320.

Given the above rationale, the police officers’ actions here in stopping appellant for a driver’s license check pursuant to Article 6687b, Section 13, supra, could not be seen as being in bad faith and in contravention of established law. Leonard v. State, 172 Tex.Cr.R. 394, 496 S.W.2d 596. Thus, any expansion of the exclusionary rule promulgated in Delaware v. Prouse, supra, will not be applied retroactively.

We hold accordingly, that at the time in question the stop of appellant for a driver’s license check was valid and that the testimony of the officers concerning seeing an air conditioner in the trunk of appellant’s vehicle in plain view was properly admitted at the trial. Appellant’s fifth ground of error is overruled.

The judgment is affirmed.

      . Penal Code Section 30.01(1) provides that “ ‘Habitation’ means a structure or vehicle that is adapted for the overnight accommodation of persons, ...”

      . We are therefore not called upon at this time to decide whether that part of Article 6687b, Section 13, supra, that allows any peace officer to stop and detain any motor vehicle operator for a driver’s license check violates the Fourth Amendment prohibition against unreasonable searches and seizures.

      . We note that even if Delaware v. Prouse, supra, could have been applied retroactively in the instant case, the officers’ actions in stopping the appellant would have been valid. The police officers’ prior issuance of two citations to appellant for driving without a license, one a month before the stop in question, would seem to satisfy the Fourth Amendment standard enunciated by the Supreme Court that “there is at least articulable and reasonable suspicion that a motorist is unlicensed.” Id. 99 S.Ct. at 1401.


author: KEITH, Commissioner.

text:
    William Thomas SIMONTON, Appellant, v. The STATE of Texas, Appellee.
    No. 58300.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.
    Byron W. Hodge and Thomas F. Lee, Del Rio, on appeal only, for appellant.
    Tully Shahan, Dist. Atty. and Durwood Edwards, Asst. Dist. Atty., Del Rio, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., ODOM and DALLY, JJ., and KEITH, Commissioner.
   OPINION

KEITH, Commissioner.

Appellant was indicted for the offense of aggravated robbery; he pleaded not guilty but the jury found him to be guilty and assessed his punishment at confinement for five years.

It was agreed that at the time of the commission of the offense, appellant was a juvenile, he being sixteen years of age and the charges were filed first in the Juvenile Court. After a hearing, the Juvenile Court entered an order waiving jurisdiction and transferring the cause to the District Court of Val Verde County. It has been shown by an appropriate bill of exception that after the transfer to the district court no examining trial of appellant was had. Instead, the matter was taken directly to the grand jury with true bill being returned shortly thereafter.

There is no formal waiver of the examining trial to be found in our record; nor, does there appear to have been any request on behalf of the appellant for such a hearing.

The question presented is one which has sorely divided this Court since the seminal case of Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977). However, as the Court is presently constituted, there is no doubt as to the continuing vitality of the Menefee rule. See White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979); Jones v. State, 576 S.W.2d 853 (Tex.Cr.App.1979); Ex parte LeBlanc, 577 S.W.2d 731 (Tex.Cr.App.1979). The Court has consistently held, in the foregoing cases, that in the absence of a valid waiver of the right to have an examining trial, an indictment returned without such examining trial is void.

We held in Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978), that a juvenile could waive the right to such an examining trial by following the provisions of Tex.Family Code Ann. § 51.09(a). See also Jones v. State, supra, 576 S.W.2d at 854, and Ex parte Chatman, 577 S.W.2d 734 (Tex.Cr.App.1979).

The fact that appellant did not request an examining trial is immaterial. Jones v. State, supra, 576 S.W.2d at 854. Instead, under our holding in White v. State, supra, 576 S.W.2d at 845, the record must “affirmatively reflect that an examining trial has in fact been held in the District Court to which the juvenile is transferred.”

Our record affirmatively shows that no examining trial was held and there is no proof of a valid waiver thereof by the juvenile. The indictment of appellant was void and the District Court of Val Verde County had no jurisdiction to proceed on the indictment. Ex parte Menefee, supra; White v. State, supra.

We find it unnecessary to discuss any of the other grounds of error in the brief of appellant.

The judgment is reversed and the indictment is ordered dismissed.

DALLY, J., dissents.

Opinion approved by the panel.


text:
    John Lewis HEBERT, Appellant, v. The STATE of Texas, Appellee.
    No. 59134.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.

      Thomas M. Roberson, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and W. F. Roberts, Jr., Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., ODOM and DALLY, JJ., and KEITH, Commissioner.
   OPINION

KEITH, Commissioner.

Appellant was charged in a three-count indictment with sexual abuse of a child under the age of 17 years as defined in V.T.C.A., Penal Code, Sec. 21.10(a); rape of a child under the age of 17 years of age as defined in V.T.C.A., Penal Code, Sec. 21.-09(a); and rape by force and threats as mentioned in V.T.C.A., Penal Code, Sec. 21.02(b)(1) and (2).

While there was the word “SECOND” to be found between counts one and two, no such similar or corresponding word appeared between the second and third counts although there was deep indentation for the new paragraph forming the third count.

The State elected to go to the jury on the second count — rape of a child — and the jury found appellant to be guilty and assessed his punishment at confinement for ten years.

Appellant did not testify nor did he offer any affirmative defense to the charge. The evidence shows that the fifteen-year-old girl, a high school student in Pasadena, had a cold on the day in question and did not attend school.

Instead, she visited one of her teen-aged girl friends in a nearby apartment. There, she found appellant visiting the girl friend and the parties stayed in the apartment talking for about an hour. Later, appellant went to a nearby convenience store to make some purchases and was accompanied by the complainant. After making his purchases, including some beer, the two drove around in appellant’s car for some time, during which time complainant drank one beer. Appellant stopped again, bought some liquor, and went to a motel where he secured a room.

After the parties had entered the room, appellant gave the girl one drink of liquor and she drank part of it. He then undressed her and penetrated her female sex organ with his male organ. The complainant apparently did not put up any strenuous resistance nor did appellant use force, violence, threats, or abuse to accomplish his purpose.

Several hours later, appellant dropped the complainant off at a friend’s apartment. She was taken to the police headquarters in Pasadena during the early morning hours and was subsequently examined by a physician. Some of the witnesses who saw her shortly after she was released testified that she appeared to have been crying and showed evidence of nervousness, and other physical distress. However, no bruises or lacerations were noted.

Appellant has been represented at the trial and upon appeal by the same court-appointed counsel. Neither of the grounds of error challenge the sufficiency of the evidence and no further mention will be made of the underlying facts of the case.

Appellant’s first ground reads:

“The court’s charge to the jury is fundamentally in error in that it did not correspond to the indictment.”

We learn from the argument that the gravamen of the complaint is that while the court’s charge properly submitted the second count — -rape of a child — it did not include a charge on what we have termed the third count — rape by force and threats.

The argument is expressed in this manner:

“Appellant points out that paragraph two of the Second Count of the indictment reflects that the Defendant intentionally and knowingly by force and threats to [prosecutrix] cause her to have sexual intercourse. The charge, as submitted by the Honorable Court did not emphasize, nor did it even cover the charge of threats or force.”

And, if we consider both paragraphs of what appellant calls the “second count”, the argument has more than a modicum of truth to it.

The State’s reply misses the mark when it says:

“Where there are several ways by which an offense may be committed set forth in the same statute, and those ways are subject to the same punishment, they may be charged conjunctively in one count as was done in Count 2 in the instant case . . . .” (emphasis supplied)

Reliance is had upon language found in Garcia v. State, 537 S.W.2d 930, 932-933 (Tex.Cr.App.1976), involving escape from custody as defined in V.T.C.A., Penal Code, Sec. 38.07. We are not persuaded by such argument and do not find the cited case persuasive. Our case involved three separate offenses denounced by three separate sections of the penal code — not just three different methods of committing the same offense.

This Court wrote in Square v. State, 145 Tex.Cr.R. 219, 167 S.W.2d 192, 193-194 (1943):

“The meaning of a ‘count’ [in an indictment] is that it charges a distinct offense, and where there are more than one count in an indictment, each count must definitely charge the commission of an offense so that the court may submit the case upon either one of the counts which is supported by evidence in order that the punishment prescribed therefore may, upon conviction, be imposed upon the accused.”

See also Smith v. State, 571 S.W.2d 917, 919 (Tex.Cr.App.1978), wherein Judge Roberts, speaking for a unanimous court, said: “Each count of an indictment must definitely charge the commission of a distinct offense.”

The second “paragraph” of the second count (as denominated by appellant’s counsel) is not properly to be regarded as a part of the second count. Such a construction would be entirely illogical since the first paragraph of said second “count” properly and completely charged the offense of rape of a child under age 17. The second paragraph (if in truth it is not a third count) had no relation to rape of a child — it attempted to charge rape by force and threats.

The first “paragraph” of the second “count” charged the offense of rape of a child and the court’s charge, which comes to us without objection, properly submitted the question to the jury. 8 Texas Practice, Willson’s Criminal Forms Ann., § 95.10, at 316 (8th ed. 1977, W. Morrison & T. Blackwell).

The evidence of guilt was overwhelming and we do not find error to have been shown by ground one.

Nor does appellant’s second ground of error reveal error on the part of the trial court. Said ground reads:

“The Court erred in admitting ‘hearsay testimony’ from a witness who was not ‘qualified to testify.’ ”

Again, looking to the argument, we find that the complaint is directed to the testimony of Dr. Susan Kim, a licensed physician who was called upon to explain medical terms and the medicines prescribed as shown upon hospital records of the complaining witness. The records were properly introduced in evidence withput any objection from appellant. Tex.Rev.Civ.Stat.Ann. art. 3737e (Supp.1978-79). See Coulter v. State, 494 S.W.2d 876 (Tex.Cr.App.1973); Williams v. State, 508 S.W.2d 83, 85 (Tex.Cr.App.1974).

Dr. Kim did not give hearsay testimony; she simply interpreted technical writings into evidence understandable by the lay jury. Her testimony was, in effect, similar to that of a physician trained in the interpretation of x-rays giving his impression of what is shown upon film exposed by another physician or technician. See and compare Community Chapel Funeral Home v. Allen, 499 S.W.2d 215, 216 (Tex.Civ.App.— Beaumont 1973, writ ref’d n. r. e.); Avila v. United States Fidelity & Guaranty Co., 551 S.W.2d 453, 454—456 (Tex.Civ.App.—San Antonio 1977, writ ref’d n. r. e.).

There is still another reason why the second ground of error is insufficient: The hearsay objection now urged was not mentioned in the trial court. Instead, there the appellant objected because it was not shown that Dr. Kim was a licensed physician whose license was on file in Harris County. No objection as to the hearsay nature of the testimony was urged. When her qualifications were shown, no further objections were urged. Nothing is presented for review. As said in Graham v. State, 546 S.W.2d 605, 608 (Tex.Cr.App.1977): “A ground of error in an appellate brief must comport to the objection voiced at trial.” Ground two is overruled.

Appellant has filed a sophisticated pro se brief wherein he contends that V.T. C.A., Penal Code, 21.09(a) is unconstitutional. He relies upon Meloon v. Helgemoe, 564 F.2d 602 (1st Cir.1977), cert. denied, 436 U.S. 950, 98 S.Ct. 2858, 56 L.Ed.2d 793 (1978). We find no merit to the contention. Presiding Judge Onion gave careful attention to and declined to follow Meloon in Ex parte Groves, 571 S.W.2d 888 (Tex.Cr.App.1978), an en banc opinion. For the reasons articulated in Ex parte Groves, the complaint brought forward in the pro se brief is overruled.

The judgment of the trial court is affirmed.

Opinion approved by the panel.

      . We are not called upon to express any opinion as to the validity of the third count of the indictment.


author: ROBERTS, Judge.

text:
    Robert LANG, Appellant, v. The STATE of Texas, Appellee.
    No. 60584.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 19, 1979.

      R. Doyce Mallett, Amarillo, for appellant.
    Tom Curtis, Dist. Atty., John Byron Reese and Steve Schiwetz, Asst. Dist. At-tys., Amarillo, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ROBERTS, Judge.

According to the judgment, the appellant was convicted, on his plea of guilty and judicial confession to the court, of injury to a child. The court assessed a punishment of confinement for five years, and the sentence was for a term of two to five years (which comports with the offense of injury to a child, which carries a minimum punishment of two years’ confinement). The appellant claims that the indictment was fundamentally defective in alleging:

“that LINDA MOSS and ROBERT LANG, hereinafter called defendants, on or about the 20th day of October, A.D., 1976, and anterior to the presentment of this indictment, in the County of Potter and State of Texas, did then and there knowingly and intentionally cause the death of the said Jack Moss by failing to provide sufficient medical care for the said Jack Moss, when the said defendant Linda Moss was then and there the parent of Jack Moss, Against the Peace and Dignity of the State.”

The indictment failed to allege that Jack Moss was a child who was 14 years of age or younger. This is an essential element of the offense of injury to a child. Compare V.T.C.A., Penal Code, Section 22.-04. Viewed as an indictment for the offense of injury to a child, it failed to allege the offense; thus it was fundamentally defective. The State does not try to argue that the indictment validly alleged injury to a child; its argument is that the indictment alleged murder.

Even if viewed as an indictment for murder, the indictment must have alleged the means of causing death. The indictment alleged that death was caused by the omission to provide medical care. “A person who omits to perform an act does not commit an offense unless a statute provides that the omission is an offense or otherwise provides that he has a duty to perform an act.” V.T.C.A., Penal Code, Section 6.01(c). The failure to allege such a duty is a fundamental defect which renders a conviction void. Ronk v. State, 544 S.W.2d 123 (Tex. Cr.App.1976). The only allegation of duty is that Linda Moss was the parent of Jack Moss. While it is true that a parent has a statutory duty to provide his child with medical care (V.T.C.A., Family Code, Section 12.04(3)), the allegation in this indictment was fundamentally insufficient in two respects. First, as to this appellant, the indictment made no allegation that he was a parent. Second, there was no allegation that Jack Moss was a child. The duty of a parent to provide medical care extends only to his child as that term is defined in Section 11.01(1) of the Family Code: “[A] person under 18 years of age who is not and has not been married or who has not had his disabilities of minority removed for general purposes.” To say that A is the parent of B is not to say that B is still a child. These failures to allege that the appellant had a duty to provide medical care render this indictment fundamentally defective and the conviction void, whether the offense be construed as injury to a child or murder.

The judgment is reversed and the cause is dismissed.

DOUGLAS, J., concurs in the result.


author: TOM G. DAVIS, Judge.

text:
    George LITTLEFIELD, Appellant, v. The STATE of Texas, Appellee.
    Nos. 61103, 61104.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 19, 1979.
    Rehearing En Banc Denied Nov. 21, 1979.
    Gregory L. Koss, Dallas, Henry F. Cerny, New York City, for appellant.
    Henry M. Wade, Dist. Atty., Ronald D. Hinds and Kelly W. Loving, Asst. Dist. At-tys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from orders revoking, probation.

On March 30, 1976, appellant pled guilty to two offenses of theft of services over $200. Punishment was assessed in each case at five years, probated.

On June 9, 1977, the State filed an amended motion to revoke in both cases, alleging that appellant had violated a condition of his probation in that he committed an offense against the laws of this State. Specifically, both motions alleged:

“(On or about the 12th day of October, 1976, in Dallas County, Texas, George W. Littlefield did then and there with intent to avoid payment for the use of one automobile, a service that the Defendant knew was provided by William Irwin, Jr. only for compensation, knowingly and intentionally secure performance of such service, of the value of at least Two Hundred Dollars ($200.00) by deception in that the Defendant absconded without paying for such service.)”

Following a hearing on the motions the trial court entered orders revoking the appellant’s probation in both causes.

Appellant contends that the trial court abused its discretion in revoking the proba-tions as the evidence was insufficient to prove that he had violated the conditions of his probation as alleged.

William Fridge, an employee of Friendly Chevrolet, testified that on January 30, 1976, he received a check in the amount of $50 from appellant to serve as the deposit on an automobile appellant desired to lease. On February 3, 1976, Fridge delivered the automobile to appellant and received appellant’s check in the amount of $417.20 for the balance of the money due at the beginning of the lease period.

Both of the checks were dishonored by appellant’s bank as the funds in his account were insufficient for payment of the cheeks. Fridge sent appellant notice of the dishonor by registered mail. The checks were never paid.

William Irwin testified that he took over Fridge’s job in June of 1976. Irwin stated that under the terms of the lease agreement between appellant and Friendly Chevrolet, appellant was to make a monthly lease payment of $209 per month on the first day of each month for services rendered. No such payments were ever made. Finally, the car was reported stolen and returned by E. R. Higgins at appellant’s request to Friendly Chevrolet on July 23, 1976.

The record shows that appellant was placed on probation on March 30,1976. Appellant had entered into the lease contract for the car on February 3,1976, two months before he was placed on probation. It is clear that any offense committed by appellant in connection with initiating the lease of the car committed before his term of probation began cannot serve as the basis for revocation of his probation. See, Mason v. State, Tex.Cr.App., 438 S.W.2d 556; Taylor v. State, 172 Tex.Cr.R. 45, 353 S.W.2d 422.

Appellant’s initial acts in procuring the automobile from Friendly Chevrolet are separate and distinct from his continued possession of the automobile without paying the monthly lease payments. The evidence is clear that appellant retained possession of the automobile without paying the monthly lease payments for four months after he had been granted probation. Appellant’s failure to make the lease payments constituted theft of services under V.T.C.A. Penal Code, Sec. 31.04(a)(1). We find that the trial court’s action in revoking appellant’s probation for theft of services was not an abuse of discretion.

Appellant further contends that the trial court abused its discretion in revoking his probation in that the automobile was leased to Littlefield Enterprises Incorporated rather than to appellant. The evidence shows that the lease was made out to Lit-tlefield Enterprises and signed “Littlefield Enterprises by: George Littlefield.”

V.T.C.A. Penal Code, Sec. 7.23(a) provides in pertinent part:

“(a) An individual is criminally responsible for conduct that he performs in the name of or in behalf of a corporation or association to the same extent as if the conduct were performed in his own name or behalf.”

We find that appellant was properly charged with the conduct performed in the name of Littlefield Enterprises Incorporated.

Lastly, appellant urges that the evidence was insufficient to show a criminal intent to avoid the monthly lease payments. Under the terms of the lease agreement, appellant contracted to make the payments to Friendly Chevrolet in return for the use of the automobile.

V.T.C.A. Penal Code, Sec. 31.04(b) provides:

“(b) For purposes of this section, intent to avoid payment is presumed if the actor absconded without paying for the service in circumstances where payment is ordinarily made immediately upon rendering of service, as in hotels, restaurants, and comparable establishments.”

In Prowell v. State, Tex.Cr.App., 541 S.W.2d 432, we held that the above presumption applies to the rental of an automobile when there is no arrangement for credit. In the instant case, Friendly Chevrolet did not extend credit to appellant and his payments were not made following the rendering of the service. We find that there was sufficient evidence to find an intent to avoid payment.

No abuse of discretion is shown in the revocation of appellant’s probations.

The judgments are affirmed.

      . In Prowell the practice commentary following Sec. 31.04, supra, was quoted in the following pertinent part:
      “Section 31.04(a)(1) contemplates the normal theft of services situation where the actor ‘walks’ the bill at a restaurant, uses a slug in a pay telephone, or leaves a rental trailer where it will be found, but fails to pay for its rental .


author: ONION, Presiding Judge.

text:
    Ex parte Keith Wayne DAVIS.
    No. 61168.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.

      B. E. Moore, Longview, court appointed, for appellant.
    Odis R. Hill, Dist. Atty., Longview, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order entered in a habeas corpus proceeding in the 124th District Court remanding appellant to the State of Louisiana for violation of parole.

In his sole ground of error appellant contends the court erred in overruling his objection to the introduction of the Executive Warrant of the Governor of Texas because the jurat on the application for requisition by the Attorney General of Louisiana was improperly executed.

On February 7th and 9th, 1979 the trial court conducted a hearing on appellant’s habeas corpus application. The State offered into evidence the Texas Governor’s Warrant, regular on its face. It is not clear from this record, however, whether the supporting papers were offered at the same time. We do find that appellant objected to the introduction of the Governor’s Warrant because of the omission of the date in the jurat to the application for requisition. The application for requisition found in the record before us shows that it was signed by the Attorney General of Louisiana. The jurat to said instrument reads:

“State of Louisiana
“Parish of East Baton Rouge “Sworn to and subscribed before me this_day of_, 1979.
“/s/ Betty G. Ratcliff
Notary.”

Article 51.13, V.A.C.C.P., is known as the Uniform Criminal Extradition Act. In § 23(3) thereof it provides that an application for a requisition made in this state seeking the extradition of an individual shall be verified by affidavit. We find nothing in said statute which would render a Governor’s Warrant invalid because the application for requisition in the demanding state was not supported by an affidavit or because there are omissions in the jurat to said instrument.

While Louisiana has not adopted the Uniform Criminal Extradition Act, we observe that Article 276 of the Louisiana Code of Criminal Procedure provides as follows:

“The application for a requisition shall be verified by affidavit, executed in duplicate, and accompanied by two certified copies of all documents that are required for extradition by the law of the state from which the wanted person is to be returned. One copy of the application, with the action of the governor indicated by endorsement thereon, and one of the certified copies of the required documents, shall be filed in the office of the secretary of state. The other copies of all papers shall be forwarded with the governor’s requisition. Failure to meet the requirements of this article, or of Articles 274 and 275, will not invalidate a requisition issued by the governor.” (Emphasis supplied.)

While Texas and Louisiana law require an application for requisition to be verified by affidavit, we observe that the absence of a date does not invalidate a jurat. 2 Tex.Jur.2d, Affidavits, § 19, p. 413; Order of Aztecs v. Noble, 174 S.W. 623 (Austin Court of Civil Appeals 1915).

In the instant case the application for requisition was signed by Louisiana’s Attorney General and sworn to before a notary. Only the date in the jurat is missing. The remainder of the document is regular on its face. Cf. Ex parte Case, 485 S.W.2d 561 (Tex.Cr.App.1972).

We cannot conclude that the court erred in overruling appellant’s objection to the Governor’s Warrant nor can we conclude there was any basis to defeat extradition on the ground urged. See and cf. Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978).

The judgment is affirmed.


author: ODOM, Judge.

text:
    Stanley Eugene BARFIELD, Appellant, v. The STATE of Texas, Appellee.
    No. 61323.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.

      Curt Beckcom, Austin, on appeal only, for appellant.
    Patricia A. Elliott, Dist. Atty. and Jorge A. Solis, Asst. Dist. Atty., Abilene, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ODOM and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for driving while intoxicated wherein punishment was assessed at a $50.00 fine and thirty days in jail. Appellant’s sole ground of error is that the trial court erred in denying his motion to set aside the complaint and information against him in accordance with the provisions of Article 32A.02 V.A.C.C.P., known as the Speedy Trial Act.

On March 27, 1978, a complaint and information were filed accusing appellant of driving while intoxicated. On November 15, 1978, appellant filed a motion to set aside the complaint and information because of failure to comply with Art. 32A.02, supra. The court held a hearing on the motion and overruled it, noting that the reason the case had not been called sooner was the overcrowded condition of its docket. The district attorney stated that he was ready for trial at that time and had been ready for trial since March 27. He stated this was the first time he had been able to announce ready because this was the first time the case had been called for trial. Upon having his motion to dismiss overruled, appellant pled nolo contendere to the charge and had his punishment assessed.

Article 32A.02, supra, stated in pertinent part:

“Section 1. A court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within:
“(2) 90 days of the commencement of a criminal action if the defendant is accused of a misdemeanor punishable by a sentence of imprisonment for more than 180 days; . . . ”

This Court in Wade v. State, 572 S.W.2d 533 held that the time periods provided for in the Speedy Trial Act will run from the Act’s effective date, July 1, 1978, for cases pending on that date. The instant case was pending on July 1, 1978 and was called for trial well beyond the applicable 90 day period. If this delay was caused because “the state [was] not ready for trial” then, under the terms of the Act, the case should have been dismissed. Appellant maintains that the word “state” includes the trial court and that the complaint and information should have been dismissed when the court was not ready to try the case within 90 days.

The right of an individual to prompt adjudication of any criminal charges against him has long been an ideal and goal of our legal system and is enshrined in the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution. For most of the nation’s history this right to a speedy trial has been enforced through judicial interpretation of those constitutional principles. See, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In recent years, however, there has been a trend toward enactment of specific time limitations within which action must be taken on criminal matters. The federal experiment in this field has been the most visible. As early as 1971 the federal courts of the Second Circuit were operating under a court-promulgated plan to expedite criminal trials. United States v. Salzmann, 417 F.Supp. 1139 (D.C.1976). In 1972, an amendment to the Federal Rules of Criminal Procedure required each district court to prepare a plan for the prompt disposition of criminal cases. Rule 50(b), F.R.Cr.P. In 1974 Congress enacted a federal Speedy Trial Act, 18 U.S.C.A., Secs. 3161, et seq., which was to be phased in over a number of years by means of still more separate and distinct “Interim” and “Transitional” Plans and to take full effect on July 1, 1979. These speedy trial schemes, while all directed toward the expedition of criminal trials, represented different approaches to the problem.

Courts in the Fifth Circuit adopted a plan which required that:

“[tjrial of a defendant held in custody solely because he is awaiting trial shall commence within 90 days following the beginning of continuous custody.” (Emphasis added.)

United States v. Methven, 547 F.2d 896, 897 (5th Cir. 1977). This rule did not lead to wholesale dismissal of cases due to a provision which stated the trial court may grant continuances for “any period of delay occasioned by exceptional circumstances.” United States v. Rodriguez, 497 F.2d 172, 173 (5th Cir. 1974). A delay caused by an exceptionally congested court docket was held to be just such a circumstance. The Court of Appeals for the Fifth Circuit stated:

“The Plan does not require dismissal for delays which are necessary, i. e., beyond the control of the court or prosecution. It is intended to expedite the processing of criminal cases — not to lay a snare for an overburdened court system. The numerous ‘safety valves’ which have been written into the Plan make it plain that it is not intended to impose arbitrary or impractical penalties on the system of criminal justice it seeks to expedite. On the other hand, delays caused by prosecu-torial or judicial inefficiency, or neglect, i. e., correctable faults, are within the aim of the Plan.” United States v. Rodriguez, 497 F.2d at 176.

This holding was reaffirmed in Methven, supra. Thus, even this strictly worded speedy trial requirement could be thwarted by an overly crowded court docket.

The Second Circuit plan addressed itself not to the whole trial process by declaring that the trial itself shall commence within a certain period, but instead was aimed at the “government” and required it to “be ready for trial” within a six month period. United States v. Salzmann, 417 F.Supp. at 1152.

“The very purpose of the speedy trial plan is to ‘minimiz[e] undue delay and further the prompt disposition of criminal cases ... by concentrating on prosecutorial delay.’ United States v. Furey, supra [2 Cir.], 514 F.2d [1098] at 1101.” United States v. LaCruz, 441 F.Supp. 1261, 1267 (S.D.N.Y.1977).

This plan did not attempt to include the courts at all.

The federal Speedy Trial Act puts mandatory limits on all stages of the criminal trial process including filing of the indictment or information and arraignment. The federal act also uses the trial “shall commence” standard seen in the Fifth Circuit plan. It addresses the question of crowded court dockets by specifically commanding that no continuance shall be granted because of general congestion of the court’s calendar. 18 U.S.C.A., Sec. 3161(h)(8)(C).

There were, then, at least these three speedy trial schemes from the federal sector available for examination when the Texas Speedy Trial Act was formulated and enacted. The Texas Speedy Trial Act states that the court shall set aside an indictment, information, or complaint “if the state is not ready for trial” within certain time limits. It thus appears that the Texas act is of the type of speedy trial scheme that addresses itself to prosecutorial delay rather than the judicial process as a whole. This is particularly true given that we would expect the drafters of the act to have been familiar with the scheme used in the Fifth Circuit which was directed at the whole judicial process and with the federal act which was even more sweeping. The draftsmen could easily have used language which would have included the courts in its terms, but instead chose to declare that dismissal would ensue if “the state” was not ready for trial.

There is further evidence in the act itself that indicates the Legislature was addressing itself to prosecutorial delay rather than delay resulting from the judicial process itself. As Judge Clinton pointed out in his concurring opinion in Ordunez v. Bean, Tex.Cr.App., 579 S.W.2d 911, 916-17:

“The provisions of the act itself, reasonably construed, further support this conclusion. Thus in describing times that may be excluded in determining when the State must be ready, Section 4 speaks of inability of the State to determine location of the accused by due diligence, (4)(B); of the State knowing the location of the defendant but being unable to obtain his presence by due diligence, (5); of the State requesting a continuance because of unavailable evidence when the State has exercised due diligence to obtain it or because the State needs additional time to prepare its case, (6); of the charge being dismissed upon motion of the State, (7); and of a period of delay caused by defendant’s detention in another jurisdiction and the State is aware of that detention and exercising due diligence to obtain his presence for trial. All of these instances plainly contemplate only the prosecuting attorney and just as clearly exclude the idea that the trial court is embraced within the term ‘the state’ being ready for trial.”

This evidence is reinforced by Art. 32A.01, V.A.C.C.P. This article was enacted in the same bill as Art. 32A.02 as part of the Speedy Trial Act. Acts, 1977, 65th Leg., p. 1970, ch. 787. Art. 32A.01 addresses itself in an advisory fashion to the courts of the state, stating that, insofar as practicable, the trial of a criminal action shall be given preference over civil trials and trials of detained defendants shall be given preference over trials of others. Art. 32A.02 in its turn sets out limitations on prosecutorial delay, defining actions to be taken on one hand by “the state” and on the other hand by “the court.”

In light of these several considerations, we construe and hold that the threshold standard for dismissal under Art. 32A.02, Sec. 1, supra, i. e., “the state is not ready for trial,” refers to the preparedness of the prosecution for trial, and does not encompass the trial court and its docket. Having limited the scope of this threshold issue, we now must determine its manner of proof and what the record in this case shows in that regard.

Under the plan extant in the Second Circuit, the scheme most like our own, the government was required to notify the court of its readiness for trial within the given time limit.

“Although ‘[t]he better practice, in those districts with heavy calendars, is to file a written notice [of readiness] with the clerk of the court for the judge’s attention, and to serve a copy on the defendant,’ United States v. Pierro, 478 F.2d 386, 389 (2nd Cir. 1973), the Government must only ‘communicate its readiness for trial to the court in some fashion within the six month period.’ Id." United States v. LaCruz, 441 F.Supp. 1261, 1264 (S.D.N.Y.1977).

To impose such a requirement upon the Texas Speedy Trial Act would be to require a useless thing. It would require the state to make a meaningless and perfunctory gesture as evidenced by the facts of Ordunez, supra. In that case, it was pointed out that the El Paso district attorney’s office filed a notice of readiness in every one of the 1200 criminal cases pending at that time in the El Paso courts.

In addition, Art. 32A.02, Sec. 3 states:

“The failure of a defendant to move for discharge under the provisions of this article prior to trial or the entry of a plea of guilty constitutes a waiver of the rights accorded by this article.”

This provision would seem to require that the first move be made by the accused rather than the state. If he does not do so, he waives his rights under the Act and the state would not be required to show readiness in compliance with the Act’s requirements. Once the defendant files his motion to dismiss for failure to adhere to the provisions of the Act, the state must declare its readiness for trial then and at the times required by the Act. This declaration is a prima facie showing of conformity to the Act, but can be rebutted by evidence submitted by the defendant demonstrating that the state was not ready for trial during the Act’s time limits. This evidence can be from any source including cross-examination of those responsible for preparing the state’s case, and may consist of, among other things, a demonstration that the state did not have a key witness or piece of evidence available by the last day of the applicable time limit so that the state was not ready for trial within that time limit.

In the present case appellant was charged with driving while intoxicated, a misdemeanor punishable by imprisonment for more than 180 days. Under the provisions of Art. 32A.02, Sec. 1(2), if the state was not ready for trial within 90 days, the information should have been dismissed. At the hearing on the motion to dismiss, the prosecuting attorney stated that he was ready to try the case then and had been ready to try the case ever since the complaint and information had been filed. No evidence was elicited to rebut this statement of readiness and it remained unchallenged. This being the case, we hold that the requirements of the Speedy Trial Act were fulfilled, and the state was shown to have been ready for trial within 90 days of the filing of the complaint and information.

The judgment is affirmed.

DALLY, J., concurs.

      . There is nothing in the Act that requires the prosecutor to actually attempt to set a case for trial. If prosecutorial delay is to be adequately addressed, the legislature may wish to amend the Act to require the state to exercise due diligence in seeking a court date within the time limits of the Act as well as being ready for trial within those limits.


text:
    John Handy JONES, Appellant, v. The STATE of Texas, Appellee.
    Nos. 61511-61514.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 19, 1979.

      Melvyn Carson Bruder, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., J. T. Lang-ford and James K. Johnson, Asst. Dist. At-tys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ROBERTS, TOM G. DAVIS and W. C. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeals are taken from convictions for bribery (two convictions), delivery of marihuana, and possession of cocaine. Appellant pled guilty to the court on all four charges. Punishment was assessed by the court at three years for each offense.

Appellant contends that the convictions for bribery and delivery of marihuana were barred as he had previously been convicted of an offense from the same transaction. Appellant’s challenge to the validity of the conviction for possession of cocaine is based on his contention that the allegations in the indictment cannot support the conviction.

The indictment in Cause No. F — 76-5531— PJ (our Cause No. 61,514) alleged, inter alia, that the appellant agreed to pay a bribe to Richard Sullivan, the Addison Police Chief, by paying $1,000 on or about June 1, 1976. The indictment in Cause No. F — 76-5530—PJ (our Cause No. 61,513) was identical to the one in Cause No. F-76-5531-PJ, except that it alleged a payment of $3,000 on or about June 4,1976.

The indictment in Cause No. F-76-5528PJ (our Cause No. 61,511) alleged that the appellant intentionally delivered more than the one-fourth ounce of marihuana to Richard Sullivan on or about June 15, 1976.

Appellant contends that these three convictions were barred by his previous conviction for a related offense. He maintains that these subsequent prosecutions were barred by double jeopardy provisions of the Fifth Amendment of the United States Constitution and Art. I, Sec. 14 of the Texas Constitution.

A bill of exception was made part of the record of each of these causes in order to establish the facts regarding appellant’s pri- or conviction. This bill was timely filed and approved by the trial court, and is properly before us.

The bill of exception reflects that the appellant was indicted in Cause No. F — 76-5527-PJ for bribery. This indictment was identical to the two bribery indictments mentioned above except that it alleged a payment of $12,000 on or about June 19, 1976. On August 23,1976, trial was had on the indictment in Cause No. F — 76-5527—PJ. Appellant pled not guilty to a jury, was found guilty, and received punishment of ten years, probated. No appeal was taken from this conviction.

At that trial (Cause No. F — 76-5527—PJ), evidence of the June 1, 1976 payment and the June 4, 1976 payment was introduced over appellant’s objection. No evidence was entered showing that appellant had made a payment of $12,000 on June 19, 1976. The court charged the jury that appellant could be convicted if they believed beyond a reasonable doubt that appellant gave Richard Sullivan any sum of money for the purposes of bribery at any time within the period of limitations.

The State argues that appellant should have raised this issue in a pretrial hearing, and his failure to do so bars our review. Further, the State maintains that the subsequent convictions were for separate and distinct offenses, and thus double jeopardy does not apply.

The record reflects that a motion entitled a Special Plea of Double Jeopardy was filed in the trial court before appellant pled guilty. Regardless of the proceedings below, a plea of former jeopardy may be raised for the first time in this Court. Ex parte Evans, 530 S.W.2d 589; Muncy v. State, 505 S.W.2d 925. The question of double jeopardy is properly before us.

In Walker v. State, 473 S.W.2d 499, this Court stated that:

“If evidence of more than one offense is admitted and a conviction for either could be had under the indictment, and neither the State nor the court elects, a plea of former conviction is good upon a prosecution based upon one of said offenses, it being uncertain for which one the conviction was had. Branch’s Ann.P.C., 2d ed., Sec. 651, and cases cited therein.” 473 S.W.2d at 500.

McCaleb v. State, Tex.Cr.App., 537 S.W.2d 728; Ellis v. State, 167 Tex.Cr.R. 87, 318 S.W.2d 655. Appellant’s subsequent convictions for bribery are clearly within this rule. We find that appellant’s bribery convictions must fall.

Appellant’s conviction for delivery of marihuana does not suffer from the same infirmity. The record does not reflect that evidence of the delivery of marihuana was entered at the first trial, nor that the conviction for bribery relied in any way on the proof of the delivery. Further, it is clear that the delivery of marihuana was not the “same offense” as the bribery charge involved in F-76-5527 — PJ.

Appellant’s conviction for delivery of marihuana likewise does not violate the doctrine of carving. There is no common element upon which the convictions for delivery of marihuana and bribery would rely. See, Ex parte Fitch, Tex.Cr.App., 580 S.W.2d 372; Hawkins v. State, Tex.Cr.App., 535 S.W.2d 359; Ex parte Jewel, Tex.Cr.App., 535 S.W.2d 362.

Appellant contends that his conviction in F-76-5529-PJ (our Cause No. 61,512) for possession of cocaine was void as there was no valid indictment charging that offense. The record reflects that the indictment alleged the delivery of cocaine.

The gist of appellant’s argument is that although possession of a controlled substance can be a lesser included offense of delivery, it is also possible that possession is not a lesser included offense. This is because it is possible to be guilty of delivery for the “constructive transfer” of the controlled substance, which would not require that the person actually possess the substance. Thus, appellant argues that since the indictment did not specify whether the delivery was actual or constructive, we cannot find that possession was a lesser included offense without more facts being presented.

The State argues that since the appellant judicially confessed to the possession of cocaine that this would support a finding that possession was a lesser included offense of the delivery allegations in the indictment.

To determine whether the conviction for possession was authorized under this indictment, we must decide whether possession is a lesser included offense of delivery under the facts of this case. The relevant test is whether the lesser offense could be proved by the same facts necessary to establish the offense charged. Hazel v. State, Tex.Cr.App., 534 S.W.2d 698; Day v. State, Tex.Cr.App., 532 S.W.2d 302; Art. 37.09, V.A.C.C.P.

Possession of a controlled substance could be proved by the same facts necessary to establish a delivery of a controlled substance. Appellant’s judicial confession establishes his actual possession, and with proof of the additional fact of “transfer,” he could have been convicted of delivery. We find that appellant’s conviction for possession of cocaine under the indictment for delivery of cocaine is valid.

Appellant’s convictions in Cause Nos. F— 76-5530-PJ and F-76-5531-PJ (our Cause Nos. 61,513 and 61,514) are reversed and it is ordered that no further prosecution to be had for those offenses. Appellant’s convictions in Cause Nos. F — 76-5528-PJ and F— 76-5529-PJ (our Cause Nos. 61,511 and 61,-512) are affirmed.


text:
    Ex parte Bobby CROSSLEY
    No. 61803.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 19, 1979.

      Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

The applicant claims that he is being denied credit to which he is entitled for time spent in jail. The facts are not disputed. In 1975 the applicant was granted felony probation. In December of 1976 the State filed a motion to revoke the probation; the applicant was arrested and released on his personal bond. On March 28, 1977, the applicant was arrested on a burglary indictment, which alleged an offense different from the one on which the motion to revoke was based. Unable to make bond on the burglary charge, the applicant remained in jail until September 12,1977, when his probation was revoked for the violation that had been alleged in 1976. The sentence begins on September 12, 1977. The burglary indictment was dismissed several weeks later, “as [it was] taken into consideration at the Revocation of Probation hearing.”

The applicant claims that he is entitled to credit for time spent in jail from March 28 to September 12, 1977; that is, from his arrest on the burglary indictment until his probation in another cause was revoked for a different violation. The question is whether this time was spent “in the cause” in which the applicant was sentenced, for Article 42.03, V.A.C.C.P., provides:

“Sec. 2. In all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause, from the time of his arrest and confinement until his sentence by the trial court.” [Emphasis supplied.]

On the face of it, the applicant was not confined in the same cause for which he was sentenced. His argument is based on Ex parte Spates, 521 S.W.2d 265 (Tex.Cr.App.1975), which he says “requires that a defendant must receive credit for time spent in jail on a charge that impedes his release.” The argument misstates the law. The principle established by Spates and its predecessor, Ex parte Alvarez, 519 S.W.2d 440 (Tex.Cr.App.1975), is that jail credit must be awarded in each cause that was an independent and sufficient cause of detention. The appellant had been admitted to personal bond on the motion to revoke months before he was indicted for an unrelated burglary. There is no showing that the bond was revoked. Presumably, if the burglary indictment had been dismissed or the appellant acquitted, the personal bond would have been still in effect and the applicant would have been released on it. There is nothing to show that the motion to revoke “would . . . have prevented petitioner’s lawful release from custody by the . . . custodian upon an acquittal in the [burglary] case.” Ex parte Alvarez, 519 S.W.2d 440, 443 (Tex.Cr.App.1975).

The applicant argues that his “jail record” must have shown that the motion to revoke was pending (along with charges for burglary, forgery, possession of marijuana, and driving without a license), and this must have influenced the amount of bail set on the burglary indictment. Assuming that these arguments were based on facts shown in the record (which they are not), they still would not constitute an independent and sufficient cause of detention.

The relief requested is denied.


author: DALLY, Judge.

text:
    Ex parte Russell E. CHAMBERLAIN.
    No. 61701.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 19, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DALLY, Judge.

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

On February 18,1969, petitioner was sentenced to imprisonment for sixty years following his conviction for robbery by assault. Art. 42.03, V.A.C.C.P., as it read at the time petitioner was sentenced, provided that credit for pretrial jail time was to be allowed at the discretion of the trial judge. The record reflects that petitioner was not given such credit. Petitioner contends that he is entitled to credit for his pretrial jail time under the rule announced in Caraway v. State, 550 S.W.2d 699 (Tex.Cr.App.1977). In its answer, the State argues that Caraway does not apply since petitioner was not assessed the maximum punishment of imprisonment for life. Art. 14.08, V.A.P.C. (1925). The District Court found that there were no material controverted facts and, without a hearing, recommended that the relief requested be denied.

In Caraway v. State, supra, we stated the contention of the defendant as follows:

“In his first ground of error appellant complains he was denied equal protection and due process of the law in violation of the Fourteenth Amendment because he ‘could not post bond prior to trial’ and received the maximum sentence but was not given credit for his pretrial jail time. It is appellant’s position that denial of pretrial jail time credit unfairly extended his parole eligibility date and thus should be controlled by the rationale of Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Hart v. Henderson, 449 F.2d 183 (5th Cir. 1971)” (Emphasis in original.)

In Williams v. Illinois, supra, the United States Supreme Court held that a state may not constitutionally imprison beyond the maximum duration fixed by statute a defendant who is financially unable to pay a fine. The Court said:

“We conclude that when the aggregate imprisonment exceeds the maximum period fixed by the statute and results from an involuntary nonpayment of a fine or court costs we are confronted with an impermissible discrimination that rests on ability to pay . . . ” 399 U.S. at 240, 241, 90 S.Ct. at 2022.

In Hart v. Henderson, supra, the United States Court of Appeals for the Fifth Circuit extended the reasoning of Williams v. Illinois, supra, to pretrial incarceration. The Court of Appeals held that the inability of an indigent criminal defendant to make bond should not result in extending the duration of his imprisonment beyond the statutory maximum.

In Caraway v. State, supra, we carried the rule one step further, holding that the inability of an indigent defendant to post bond should not result in the delay of his parole eligibility date beyond the maximum of twenty years set by Art. 42.12, Sec. 15, V.A.C.C.P. In Caraway, the defendant had been sentenced to imprisonment for life and would become eligible for parole after serving twenty years. Since the trial judge had not given Caraway credit for his pretrial jail time, he would have had to serve twenty years without credit for the time spent in jail prior to trial before becoming eligible for parole. In other words, his aggregate imprisonment prior to becoming eligible for parole would have exceeded the twenty-year maximum. We held that this was constitutionally impermissible because Caraway had been unable to post bond due to indigency, and that he was entitled to credit for his pretrial jail time.

Although petitioner was sentenced to imprisonment for sixty years rather than for life, this is a distinction without a difference insofar as parole eligibility is concerned. Petitioner will not become eligible for parole until he has served one-third of his sentence, or twenty years. Just as in Caraway, unless petitioner is given credit for his pretrial jail time he will be forced to serve twenty years without credit for the time spent in jail prior to trial before he becomes eligible for parole, i. e., his aggregate imprisonment will exceed the statutory maximum. Just as in Caraway, this delay of petitioner’s eligibility for parole beyond the statutory maximum is constitutionally impermissible if petitioner was unable to post bond prior to his trial because he was indigent.

We hold that petitioner is entitled to credit for his pretrial jail time to the extent that such incarceration was due to his financial inability to post bond. The cause is remanded to the district court for a determination of the pretrial jail time credit to which petitioner is entitled.

It is so ordered.


author: PHILLIPS, Judge. DALLY, Judge,

text:
    Ex parte Karol Ray McATEE.
    No. 61838.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 19, 1979.

      Paul G. Johnson, Huntsville, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

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

Petitioner challenges the validity of his sentence upon a plea of guilty to the offense of robbery in Tarrant County Criminal District Court No. 3 in Cause No. 14655A. Petitioner was sentenced to 40 years, the second degree felony offense of robbery having been enhanced to a first degree felony by the allegation and proof of a prior marihuana conviction in Tarrant County Criminal District Court No. 1 in Cause No. 8408.

Petitioner asserts and the record shows without dispute that prior to said robbery conviction the marihuana conviction in Cause No. 8408 had been used successfully to enhance his punishment to life as a habitual criminal under V.T.C.A. Penal Code, Sec. 12.42(d).

Petitioner seeks invalidation of this 40-year sentence based upon the long-standing rule in this State that a felony conviction may not be used to again enhance punishment after it has been successfully used for enhancement to life imprisonment under Sec. 12.42(d), supra. The unbroken line of authority in Texas supports petitioner’s contention. Ex parte Montgomery, Tex.Cr.App., 571 S.W.2d 182; Ex parte Friday, Tex.Cr.App., 545 S.W.2d 182; Carvajal v. State, Tex.Cr.App., 529 S.W.2d 517; Mayo v. State, 166 Tex.Cr.R. 470, 314 S.W .2d 834; Mooring v. State, 158 Tex.Cr.R. 434, 256 S.W.2d 97; Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93; Brown v. State, 150 Tex.Cr.R. 386, 196 S.W.2d 819; and Kinney v. State, 45 Tex.Cr.R. 500, 79 S.W. 570.

The State insists that said longstanding rule has been based upon the erroneous premise in Kinney v. State, supra, that to permit use of the same offense twice to enhance punishment would be vio-lative of the principle of former jeopardy, and that the holdings in the above-cited decisions should be expressly overruled as advocated by the concurring opinion in Shivers v. State, Tex.Cr.App., 574 S.W.2d 147. This same argument was carefully considered, ably analyzed, and overruled in Carvajal v. State, supra, as follows:

The State contends that the failure of the Legislature to prohibit the repeated use of the same prior convictions to enhance punishment manifests an intent that Kinney and its progeny be abandoned. It strikes us that the omission of any significant additional or different language in Sec. 12.42(d) cuts quite the other way. The Legislature was aware of the venerable Kinney rule, now seventy years old. The Legislature’s silence on the question of multiple use for enhancement purposes of prior convictions must evidence a lack of dissatisfaction with established judicial construction of the statutes. A comparison of V.T.C.A. Penal Code, Sec. 1.05(a), and the old Art. 7 does not dissuade us from the soundness of this conclusion.

For the sound reasons stated in Carvajal we need not further analyze possible implications of the recently declared principle of jeopardy in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187, that the double jeopardy provision protects against multiple punishment as well as multiple prosecutions. This is true because before consideration of jeopardy implications of a statute a court must have first determined that there was Legislative intent to permit or impose a possible double punishment. Simpson v. U. S, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70.

Furthermore, it should be noted that the robbery for which petitioner was convicted and assessed enhanced punishment herein was allegedly committed on August 29, 1978, before this Court or any Judge thereon ever indicated even a tendency toward the overruling of this long-standing construction of the enhancement statutes. To apply such new and unexpected judicial construction to Sec. 12.42(d), supra, against petitioner would deny to petitioner due process of law. Such is made manifest by the decisions of the Supreme Court of the United States in Marks v. U. S., 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260, and Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894, which hold as follows:

The Ex Post Facto Clause is a limitation upon the powers of the legislature, see Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648 (1798), and does not of its own force apply to the Judicial Branch of government. Frank v. Mangum, 237 U.S. 309, 344, 35 S.Ct. 582, 593, 59 L.Ed. 969 (1915). But the principle on which the Clause is based — the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties — is fundamental to our concept of constitutional liberty. See United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954); Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888 (1939). As such, that right is protected against judicial action by the Due Process Clause of the Fifth Amendment. .
Marks v. United States, 430 U.S. 188, at 191-192, 97 S.Ct. 990, at 992-993, 51 L.Ed.2d 260.
., an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, Sec. 10, of the Constitution forbids. ... If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. .
Bouie v. City of Columbia, 378 U.S. 347, at 353, 84 S.Ct. 1697, at 1702, 12 L.Ed.2d 894.

For the reasons stated we hold that petitioner’s 40-year sentence in Cause No. 14655A (our Appeal No. 61,838) is excessive; however, since the court assessed the punishment, said conviction is remanded to the trial court for assessment of punishment within the range of a second degree felony.

DALLY, Judge,

dissenting.

I dissent for the reasons stated in my concurring opinion in Shivers v. State, 574 S.W.2d 147 (Tex.Cr.App.1978).

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

      . The rule regarding the use of prior convictions has been changed by the 66th Legislature, which added Section 12.46 to the Penal Code. That section reads:
      The use of a conviction for enhancement purposes shall not preclude the subsequent use of such conviction for enhancement purposes.
      Acts 1979, 66th Leg., ch. 459, p. 1027, eff. June 7, 1979.


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

text:
    Ex parte Jesus Regalado CONTRERAS.
    No. 61976.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 19, 1979.

      Glen H. Shelton, Jr., El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Paul J. Kubinski, Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

TOM G. DAVIS, Judge.

Appeals are taken from two convictions for burglary of a habitation. V.T.C.A. Penal Code, See. 30.02. Punishment was assessed at seven years in each case.

Appellant contends that he has been denied his right to appeal by the failure of the record to include a transcription of the court reporter’s notes. It is undisputed that appellant is an indigent. He maintains that he is entitled to a new trial.

Appellant was convicted on October 5, 1977. Mark Thomas, the court reporter at that time, recorded the testimony entered at appellant’s trial. It appears from the record before us that Thomas has since moved to Birmingham, Alabama and efforts to secure a transcription of the court reporter’s notes from him have been to no avail.

This Court has granted two extensions of time to file the transcription of the court reporter’s notes, the last extension expiring on April 15, 1978. A third request for an extension was denied on May 1, 1978.

Notice of completion of the record “without statement of facts” was given counsel on May 9, 1978. Appellant filed written objections to the record based on the absence of a transcription of the court reporter’s notes.

The trial court held a hearing regarding the status of the attempts to obtain a transcription of the court reporter’s notes. In the intervening year since that hearing no transcription of the court reporter’s notes has been filed in this cause. The transcript (with no transcription of the court reporter’s notes accompanying it) was filed in this Court on October 11, 1978 after the trial court had approved the record.

The trial court has a duty under the Texas and United States Constitutions to provide an indigent defendant with an adequate record on appeal. See Guillory v. State, Tex.Cr.App., 557 S.W.2d 118 and numerous decisions of the United States Supreme Court and this Court cited therein.

The State is correct in its brief where it urges that the court reporter can be ordered by the court to file a transcription of his notes in a timely fashion and upon failure to do so the court can issue an order requiring the court reporter to show cause as to why he should not be held in contempt. Art. 1911a, V.A.C.S. However, it would appear that this procedure would be to no avail if the court reporter is still without the jurisdiction of the court.

We call attention to Subd. 14 of Art. 40.09, V.A.C.C.P. which provides that the parties with the approval of the court may utilize an agreed statement of facts. In Ex parte Mays, Tex.Cr.App., 510 S.W.2d 606 it was pointed out that if a defendant is found to be indigent, he cannot be compelled to utilize this alternative method.

We abate this appeal and set aside the trial court’s order approving the record. If the trial court has regained jurisdiction over the court reporter, Mark Thomas, it can order him to prepare a transcription of the court reporter’s notes forthwith and upon his failure to comply with such order proceed with contempt proceedings as outlined above.

In the event that the transcription of the court reporter’s notes or an agreed statement of facts is filed with the clerk of the trial court within 30 days of the date of this opinion, notice of completion of the record shall be given to the parties pursuant to Art. 40.09(7), V.A.C.C.P. Further proceeding shall then be had under the appropriate subdivisions of Art. 40.09, V.A.C.C.P.

In the event that the transcription of the court reporter’s notes or an agreed statement of facts has not been filed with the clerk of the trial court after 30 days from the date of this opinion, appellant shall be accorded a new trial. No motion for rehearing will be entertained.

The appeal is abated.

ODOM, Judge,

concurring.

I concur in the disposition of this case on statutory grounds, but I do not join the holding that the constitutional rights of indigent defendants are implicated today.

While it is true, as the majority says, that the trial court has a constitutional duty to provide an indigent defendant with as adequate a record on appeal as that which is available to the monied defendant, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, the unavailability of an adequate record in this case stems not from appellant’s financial condition, but from the absence of the court reporter’s notes to prepare such a record.

When the absence of an adequate record is due to circumstances other than the defendant’s indigency, as is the case here, the consequences of such a condition should be the same whether the defendant is indigent or not. In Rhoda v. State, Tex.Civ.App., 514 S.W.2d 937, the Court wrote:

• “The right of an indigent appellant to a free statement of facts is independent of the, requirement that a statement of facts, free or otherwise, be requested at the appropriate stage of the appellate process. If that requirement not be met, the right to have it included in the record on appeal is waived.”

The focus of the decision in this case should likewise be on the cause for the absence of a statement of facts in the record on appeal. In Hartgraves v. State, Tex.Cr.App., 374 S.W.2d 888, a reversal was required on a record that showed:

“. . . without any fault of his own or that of his counsel, the appellant has been deprived of a statement of facts relating to the hearing of his motion for a new trial, if not a statement of facts on the trial.”

In Hilliard v. State, Tex.Cr.App., 401 S.W.2d 814, on the other hand, it was held that a delay of almost eight months after notice of appeal before a pauper’s oath for a free statement of facts from the court reporter’s notes was requested, constituted a lack of necessary diligence on the defendant’s part, and the denial of that form of a statement of facts was not error.

In this case a statement of facts prepared by the court reporter pursuant to Art. 40.-09(3-5), supra, was unavailable to appellant, not due to any lack of diligence on his part, as in Rhoda and Hilliard, supra, but because the court reporter had left the State and was beyond the trial court’s power to compel production. See Guillory v. State, Tex.Cr.App., 557 S.W.2d 118. In the absence of a statutory alternative for preparing an adequate record for appeal that may be imposed (contrast with Art. 40.09(14), supra) in such circumstances, the only remedy for a defendant who is denied an adequate record for presenting his appeal is reversal. Ex parte Mays, Tex.Cr.App., 510 S.W.2d 606, and authorities cited there. This result is required irrespective of the defendant’s financial status (although indigent status may facilitate proof of no want of diligence). The taking of notes by the court reporter and the reporting of them for the appeal record on request are mandatory whether or not the defendant is indigent (Art. 40.09(4, 5), supra), and the alternative agreed statement is at his option, likewise whether or not he is indigent (Art. 40.-09(14), supra). Thus, the disposition of this case is controlled by considerations, independent of appellant’s financial status, that result from the statutory scheme for appeal of criminal cases and preparation of the record under Art. 40.09, supra.

On this basis I concur in the judgment.

PHILLIPS, W. C. DAVIS and CLINTON, JJ., join this concurrence.

      . On denial of a statement of facts prepared by the court reporter in Hilliard, supra, an alternative form of statement of facts was submitted. Pursuant to Art. 759a, Sec. I.E., V.A.C.C.P. (1925, as amended; see 5 V.A.C.C.P. (1979) at 208) the trial court prepared a statement of facts after it was ascertained that the court reporter’s notes had been lost and that appellant’s counsel and the state could not prepare an agreed statement of facts. Under the current version of Art. 40.09, V.A.C.C.P. (successor to Art. 759a, supra), the trial court has no corresponding power to prepare a statement of facts when the parties are unable to agree upon one under subdivision 14 of that article.