author: DUNCAN, Judge.

text:
    Richard WARE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 9, 1978.
    Certiorari Denied by Supreme Court May 22, 1978.
    Edward G. Thompson, Public Defender, Walker Gwinn, Appellate Counsel Public Defender’s Office, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. Tucker, Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Dan L. Newsom, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

DUNCAN, Judge.

The defendant, Richard Ware, convicted of grand larceny and sentenced to the penitentiary for not less than nor more than three years, brings this appeal contesting the legal sufficiency of the convicting evidence, and complaining that his alleged post-arrest silence was used against him. We find no merit to these complaints.

According to the evidence, on August 4, 1976, at approximately 10:45 p. m., Sammy B. Anderson parked his automobile in front of his house. At about 11:50 p. m., he looked out and discovered his vehicle missing. Shortly after 2:30 a. m. on the following morning, two police officers were investigating an armed person call. It was later determined that this call had come from the residence of the defendant’s wife. As the officers approached Mrs. Ware’s residence, they observed a vehicle, later determined to be the Anderson automobile. After talking to Mrs. Ware, the officers spotted this same vehicle again nearby, observed it swerving and almost hitting some other cars. The officers saw the vehicle pull into a nearby apartment house driveway. Whereupon, the officers blocked the vehicle and found it occupied by the defendant. The automobile had been hot-wired and the motor was still running. The officers, unaware at that time that the vehicle had been stolen, arrested the defendant for driving while intoxicated and advised him of his rights. Upon inquiry by the officers, the defendant stated that a friend had brought the vehicle to him to tune it up.

The defendant testified and sought to convince the jury that he was only a passenger in this vehicle, and that another person, whom he described as a friend but knew only by the nickname of “Tighthead” was the driver, and that this friend had departed from the vehicle after it had stopped. The defendant’s testimony was riddled with inconsistencies as to the time when he allegedly got with his friend in the stolen vehicle. He initially testified that it was between 7:00 p. m. and 8:00 p. m., later changed the time to around 9:00 p. m., again extending the time to 10:00 p. m., and finally stated that it could have been around 11:00 p. m. He offered his wife and children who testified that when the defendant was in the vehicle at their house, another individual was driving.

The jury discounted the defendant’s theory that some other person was responsible for the theft of the Anderson vehicle and accredited the State’s version of this affair.

We are of the opinion that the State’s proof clearly shows that the defendant was in possession of this stolen vehicle within three to four hours from the time that the theft occurred. Under the facts here, the jury was more than entitled to reject the explanation offered for the defendant’s possession of this stolen vehicle. Without even considering the other direct and circumstantial evidence implicating the defendant in this crime, the defendant’s possession of this recently stolen vehicle, in conjunction with no adequate explanation for such possession, is sufficient to support the verdict of the jury. Bush v. State, 541 S.W.2d 391 (Tenn.1976). The evidence does not preponderate against the verdict of the jury. Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385 (1960).

Next, the defendant alleges that the court should have granted a mistrial because the State elicited testimony in chief that the defendant exercised his constitutional right to remain silent in face of accusation, and further that the State was allowed to impeach the defendant on cross-examination about the same thing.

In the State’s proof in chief, Officer Sidney M. Johnson testified that:

“Well, after we stopped the defendant and we did find out that he was intoxicated, we arrested him for DWI, and advised him of his rights, at which time after I noticed that the car didn’t have a key in it, and the wires was down, I asked him whose car v/as it, and at which time, he stated to me that a friend had brought him the car for him to tune the car up, and we asked him what was his friend’s name, or the individual’s name, and he didn’t state it — didn’t say anything.”

This testimony was admitted without any objection on the defendant’s part. The defendant did not contend at the trial nor does he in this appeal that he had not received his proper Miranda warnings or that he had not effectively waived them. He makes no complaint about this area of the testimony. Rather, he bases his complaints on two other items of testimony that occurred at the trial.

First, on direct examination of Sergeant L. A. Porter, the State elicited the following testimony from this officer:

“Q. . . . And did you have any occasion to talk with the defendant with regard to this case?
A. Yes, sir; but he wouldn’t give me a statement. He said — (interrupted)”

Second, on cross-examination of the defendant, the State elicited the following testimony:

“Q. Where was your friend at the time the police ears arrived?
A. Well, when we arrived at the apartments he got out, and left the car sitting there facing the drive, you know, about thirty or forty foot off of Mimosa. I guess he run around them apartments. I don’t know what happened to him.
Q. All right, sir. Did you tell the police officers what happened?
A. Well, they wouldn’t seemed to be listening to me.
Q. You didn’t tell them that there was a man that just ran from the car and ran into the apartments that was in the car that was actually driving the car?
A. I don’t remember what I told them. I know — I know he drawed that pump gun on me and scared me. I don’t know what I said.
Q. So you don’t remember it, but you— (interrupted)
A. I don’t know. I was scared. He had that pump gun on me. I probably told them, I don’t remember. I was scared, real scared.
Q. Later on after you weren’t scared, did you ever tell the police?
A. I think I did.”

Initially, we note that the court sustained the defendant’s objections to both lines of questioning set forth and gave a curative instruction regarding the first instance.

We recognize that a defendant has a constitutional right to remain silent in the face of accusations against him, not only during his trial but also upon arrest and while in custody, and the prosecution may not, therefore, use at trial the fact that a defendant claimed his privilege in the face of accusation. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Braden v. State, 534 S.W.2d 657 (Tenn.1976). Also, a defendant’s post-arrest silence cannot be used to impeach his testimony at trial. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

We have no quarrel with the foregoing legal principles, but we find that they cannot be used to sustain the defendant’s position because a fair and complete reading of this record shows that the defendant did not elect to remain silent in the face of accusation. At the tithe of, and at the scene of, the defendant’s arrest, he gave the police an exculpatory statement, and at the trial, he expanded on this statement in his direct testimony.

Once the defendant gave his initial statement at the scene of his arrest, it was not improper for officer Johnson to testify that he “didn’t say anything” else, or for Sergeant Porter to testify that shortly thereafter at the police station, “he wouldn’t give me a statement.” See Hembree v. State, 546 S.W.2d 235 (Tenn.Cr.App.1976).

Regarding the second item of testimony of which complaint is made, we do not see any error by reason of the attorney general’s brief cross-examination of the defendant regarding whether he had told the police about the alleged implication of the other man. The defendant had elaborated rather extensively in his direct testimony on this subject in an effort to exculpate himself from this crime. Further, the defendant testified that he thought that he had told the police of the other man's alleged implication. Where a defendant testifies to an exculpatory version of events and claims to have told the police the same version of events upon arrest, then his post-arrest silence can be used to contradict him. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest. Doyle v. Ohio, supra, 96 S.Ct. at 2245, n. 11.

We find no merit to the defendant’s assignments of error and they are overruled.

Affirmed.

WALKER and O’BRIEN, JJ., concur.


source: Caselaw Access Project

author: FRANK F. DROWOTA, III, Special Judge.

license: Public Domain

text:
    James Brake PROCTOR, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 26, 1978.
    Certiorari Denied by Supreme Court May 22, 1978.

      William C. Wilson, Nashville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., William 0. Kelley, Asst. Atty. Gen., Nashville, Elmer Davies, Dist. Atty. Gen., Franklin, for appellee.
   OPINION

FRANK F. DROWOTA, III, Special Judge.

This is an appeal by defendant James Brake Proctor from a judgment of the Hickman County Criminal Court, in which he was convicted of armed robbery and of being an habitual criminal. Defendant was sentenced to 65 years in prison for the armed robbery, while a life term was imposed on the habitual criminal conviction as T.C.A. § 40-2806 requires. Defendant was tried and convicted along with a co-defendant, Jerry Wayne Stewart, whose appeal we address in a separate opinion.

The armed robbery of which defendant Proctor was convicted occurred on the evening of October 26,1974, at a store run by a 74-year old lady, Mrs. Faira Jane Foriest, and her son, James Martin Foriest, Jr. Two men, wearing ski masks and armed with pistols, robbed the store of an amount of money estimated at $15,000.00 by James Foriest and at $80,000.00 by his mother. Most of the money was stored in a green tackle box, which was also taken. The robbers forced their victims from the store to an adjacent house, in which the Foriests lived. James Foriest remained at the house during the entire robbery and never got a very good look at the two criminals. His mother, however, was taken by one of the men back down to the store, where she was able to see the other man without his mask. When the robbers had taken what they wanted, they tied up the Foriests and left them in the house. Within a few minutes, James Foriest managed to free himself and his mother, and they called the Sheriff to report the robbery.

James Foriest was able to give no details concerning the appearance of the two men, other than that they wore masks and “kinda heavy like coats” and that one was about five feet ten inches tall. Mrs. Foriest, however, did give the Sheriff a somewhat more detailed description of the man she had seen with his mask off. The description was of a white male, 30 years old or more, five feet ten inches tall, about 150 lbs., of slender build with a slim face, a pale complexion, and black hair parted on the left and combed to the right. Mrs. Foriest also said that the man wore a dark three-quarter length coat that was big and loose, and carried a blue steel pistol. She also furnished police with a less detailed description of the second robber.

In the several months following the robbery, Mrs. Foriest was shown approximately 600 “mug shot” photographs, but was unable to identify anyone whose picture she saw as the robber. Then, evidently as a result of information supplied by an agent of the Tennessee Bureau of Criminal Identification, defendant Proctor became a suspect in the case. The Sheriff, Frank Atkinson, arranged for Mrs. Foriest to go to the court house in Columbia, where defendant was being tried on another charge, to see if she could identify anyone. On May 23, 1975, after twenty minutes of scrutinizing about forty people present in the courtroom, Mrs. Foriest identified defendant Proctor as the robber she had seen without his mask.

Subsequent to his being identified by Mrs. Foriest, defendant was indicted for the armed robbery and for being an habitual criminal. He was tried with his co-defendant Jerry Stewart on August 28, 29 and 30, 1975.

At trial, the State first presented testimony of the Foriests and Sheriff Atkinson concerning the robbery and the description of the criminals given by Mrs. Foriest at the time. Mrs. Foriest also made an in-court identification of defendant Proctor as the robber whose face she had seen on the night of the crime.

Next came the important testimony of Terry Lee Stewart, the brother of defendant Proctor’s co-defendant Jerry Stewart. Terry Stewart testified that his brother Jerry and defendant Proctor had carried out the robbery of the Foriests on October 26, 1974. He said that he had heard the other two discuss the possibility of robbing the store prior to that date, and that his brother had told him of definite plans to do so on the day before the robbery. On October 26, according to the witness, he and his brother and defendant Proctor had set out from Nashville. When they arrived at the store, they drove past, and found a place to park in front of a vacant house. The witness then drove the other two men to a point about a half a mile from the store and let them out. Defendant Proctor was carrying a blue steel .38 pistol, and was dressed in brown pants, a brown shirt, and a brown waist jacket something like a windbreaker. Following the instructions he had been given, Terry Stewart drove back to the vacant house and waited for his two companions. When they returned, defendant Proctor was carrying a green tackle box. Terry Stewart then drove the three back to Nashville. During the trip, the tackle box was emptied and thrown out alongside the road. According to Terry Stewart, the amount of money taken was $30,000.00, of which he was given $2,000.00 while his brother and defendant Proctor took $14,000.00 each.

Terry Stewart also testified on cross-examination that he had been in trouble with the law since the robbery. He said that, while he had made no deal with police, he believed he would be treated more leniently as a result of his cooperation in testifying.

For the defense, the father of Terry Stewart testified that Terry had told him that he might “have to tell — anything that I have to tell to get out of this.” Defendant Proctor testified that he had given up his life of crime prior to the date of the robbery, and denied any involvement in it. He said that he and his new wife had bought a store in Huntsville, Alabama, and that he had been at the store at the time of the robbery. Several witnesses, including Proctor’s wife and sister-in-law, testified in support of this alibi.

After hearing the evidence, the jury found defendant Proctor guilty of armed robbery and fixed his sentence at 65 years in prison. A brief trial was then held on the habitual criminal charge, and several of defendant’s prior convictions were documented. The jury then found defendant guilty of being an habitual criminal and sentenced him to life in prison. Defendant’s appeal has now reached this Court.

In his first assignment of error, defendant Proctor contends that he was “subjected to an identification procedure so suggestive and conducive to mistaken identity that [he] was denied due process of law.” He argues that testimony concerning Mrs. Fori-est’s identification of him in the Columbia courtroom was improperly admitted, and that her identification of him at the trial of the instant case should also have been excluded because it was tainted by the earlier one.

We note initially that this case does not involve the Sixth Amendment or rules governing identification procedures as set out in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The right to counsel and the rules of those cases apply only to identification procedures conducted after indictment. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The disputed identification in the instant case occurred prior to defendant’s indictment.

A violation of due process, however, may occur in a suggestive identification procedure even in the earliest stages of a criminal investigation. In deciding whether or not there has been a violation, the court must view the “totality of the circumstances.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Due process has been violated if the court finds that the identification procedure was so suggestive as to give rise to “a very substantial likelihood of irreparable misidenti-fication.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). Such a finding would require exclusion of a subsequent in-court identification by the same witness. With the word “irreparable” deleted, the quoted test also serves “as a standard for the admissibility of testimony concerning the out-of-court identification itself.” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972).

In Neil, supra, the U. S. Supreme Court described in detail the approach to be taken in measuring out-of-court identification procedures against due process requirements. The Court set out five factors to be considered in determining whether an identification is reliable enough to withstand a due process attack despite suggestiveness in the procedure employed. These factors are the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the level of certainty of the witness at the confrontation, and the length of time between the crime and the confrontation. The degree of reliability in the identification itself, as indicated by these factors, is to be assessed in light of the suggestiveness of the identification procedure and the totality of the circumstances to determine whether a violation of due process has occurred. This approach has been applied in prior Tennessee cases. See Forbes v. State, 559 S.W.2d 318 (Tenn.1977); Bennett v. State, 530 S.W.2d 511 (Tenn.1975).

Stovall and Neil both upheld against due process attack on their particular facts identifications made in a procedure known as a “show-up,” wherein the suspect is shown to the witness alone rather than in a group or “lineup.” In the recent case of Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Court found no violation of due process when, in the particular circumstances of that case, an out-of-court identification was made from the witness’s viewing of a single photograph of the defendant. The Court reaffirmed the approach of Neil, with its focus on reliability, and made clear that that approach is to be applied whether the out-of-court identification took place before Sto-vall or after it.

In the instant case, the “out-of-court” identification complained of by defendant took place in a courtroom, where defendant was being tried on a charge separate from that involved here. The record does not tell us why this procedure was used instead of the standard “lineup.” Defendant argues that the setting for this identification was suggestive because the identifying witness, Mrs. Foriest, was told beforehand that the person she had been brought to identify was the one on trial in the courtroom. The only support in this record for the contention that the witness had such knowledge is in her testimony that “the Sheriff asked me in May to go with him to Columbia to identify — to see if I could identify anybody that was being tried up there.” Also, on cross-examination, the following exchange took place:

Q. But you were told that his man was going to be down there on trial, weren’t you?
A. Well yes, it was going to be somebody down there on trial.

Mrs. Foriest’s confusion on this point, however, is illustrated by another exchange on cross-examination:

Q. Just what did the Sheriff tell you before you were carried down there? •
A. He asked me would I go up there and see if I could identify anybody that had robbed me and I made arrangements and I told him yes, I’d go.
Q. All right, it seems I remember on your direct-examination that somebody was being tried?
A. Well he was being tried.
Q. Yes, Mam, well did he say he was going to be tried that day, the Sheriff?
A. Well I think he did.

At yet another point in her direct examination, however, Mrs. Foriest testified that she was not told that the person on trial was the suspect:

Q. And what did the Sheriff tell you about where he’d be?
A. He just said he will be in the Court Room and it took me as much as twenty minutes to discover him

In his testimony, the Sheriff emphatically stated that he did not tell Mrs. Poriest that the suspect was on trial:

Q. Did you say anything about this suspect being on trial in any way?
A. I most certainly didn’t, I said they’ll be having a trial but I said the suspect would be somewhere in the Court Room, but I didn’t tell her that he would be on trial.

The rest of the circumstances surrounding this out-of-court identification are clear and simple. Mrs. Poriest was brought into the courtroom by the Sheriff and another officer. They took seats a few rows from the back. The courtroom contained about forty people, with people coming and going during this time. Mrs. Poriest looked at numerous people, including members of the jury, in various parts of the courtroom. She took such a long time that the Sheriff thought that she was not going to be able to recognize defendant. Finally, after about twenty minutes, Mrs. Foriest called the Sheriff over and pointed out defendant, sitting at the defense table at the front of the courtroom, as one of the men who had robbed her.

Were it not for the confusing testimony of Mrs. Poriest as to whether or not she knew that defendant was the one on trial before she identified him, there would appear to be little suggestiveness in asking her to see if she could identify anyone in a room of forty people. Even with her confusing testimony in the record, the certainty of the Sheriff’s testimony, coupled with Mrs. Poriest’s having scrutinized people all over the courtroom and having taken twenty minutes to identify defendant, indicates that she did not know ahead of time that the suspect was on trial or where she should look for him. Nevertheless, because the circumstances under which this identification was made may have suggested to Mrs. Foriest’s mind that defendant was the suspect she was expected to identify, we proceed to examine her identification according to the Neil factors of reliability.

There is no doubt that Mrs. Foriest had sufficient opportunity to view the criminal at-the time of the crime, for she saw him with his mask off in a well-lighted store. Nor is there any reason to suspéct that she did not pay a high degree of attention at that time, for it was her only good opportunity to view the criminal closely enough to be able to assist the police in arresting him. She had been threatened but not struck, and the record does not show her to have been unduly distraught or distracted at the time.

The third factor is the accuracy of the witness’s prior description. The description given police at the time of the crime by Mrs. Poriest admittedly does not fit defendant perfectly. She said that the man she saw with his mask off had a pale complexion, while there is evidence in the record to indicate that defendant is ruddy-complected. Also her description of a big three-quarter length coat differs from Terry Stewart’s testimony that defendant wore a “waist coat” or “windbreaker.” Terry Stewart testified that defendant’s hair was combed back at the time of the robbery, while Mrs. Poriest’s description said that it was parted. Such a feature, however, is easily altered at any time. Furthermore, some of the alleged inaccuracies in Mrs. Foriest’s description are not in fact inconsistent with defendant’s appearance. Mrs. Foriest estimated defendant’s age at 30 or more, and according to his own testimony defendant is 48. Mrs. Foriest approximated defendant’s weight at 150 lbs., not far from the 135 lb. figure to which defendant testified. Finally, several elements of Mrs. For-iest’s description are not shown by anything in the record to be inaccurate. These elements are that the criminal was a white male about five feet ten inches tall with a slender build, a slim face and black hair. Overall Mrs. Foriest’s description, while not perfect, is accurate enough to be consistent with the proposition that the man she saw and described at the time of the crime was defendant, and that her out-of-court identification was based upon the earlier viewing and was therefore reliable.

The fourth factor, level of certainty of the witness at the confrontation, causes no problem in the instant case. Mrs. Foriest pointed out defendant in the Columbia courtroom with no apparent uncertainty. At trial, Mrs. Foriest testified that she could not forget defendant’s face:

Q. Did you give the Sheriff a description of the man that you saw with the mask off?
A. Well to some extent I did, I told him that I’d know his face if I ever seen it. I go to bed at night with that face in my mind and I wake up of a morning and I can see that face. Anybody pushed you around with a gun like they did and get as much as you worked hard for you will never forget a face like that.

The final factor to be considered is the length of time between the crime and the identification, in this case about seven months. A similar amount of time was not found to be excessive in Neil. In that case, the Court said that the seven-month period would have been considered a “seriously negative factor,” 409 ,U.S. at 201, 93 S.Ct. 375, except that the witness• had demonstrated her resistance to any suggestiveness inherent in the show-up procedure by viewing other suspects under similar conditions and failing to make an identification. While Mrs. Foriest had not, prior to identifying defendant, viewed a suspect under the same circumstances as those of the Columbia courtroom, she had viewed in excess of 600 photographs without identifying anyone. As far as the Sheriff and Mrs. Foriest know, none of the photographs examined depicted defendant. In view of this and of the certainty with which Mrs. Foriest stated that she remembered defendant’s face, we cannot say that the lapse of seven months between the crime and the identification makes the latter unreliable.

Viewing the totality of the circumstances, then, we find Mrs. Foriest’s identification of defendant to be sufficiently reliable under Neil to withstand a claim that the procedure employed violated defendant’s right to due process of law. In addition to the five factors discussed above, we think it significant that any suggestiveness here was less than that inherent in the one-to-one show-up involved in Neil and other due process cases. Defendant was one of approximately forty people in the room and, according to the weight of the evidence, Mrs. Foriest was not told where to look for him. That she was not told is supported by her careful search of the faces of those present for twenty minutes before locating and identifying defendant. As for reliability, none of the five factors of Neil militates in favor of the conclusion that Mrs. Fori-est’s identification was unreliable for due process purposes. The inaccuracies in her original description of defendant and the lapse of seven months before the identification, while certainly elements for the jury to consider in evaluating the correctness of the identification and the strength of the State’s case against defendant, are insufficient to sustain defendant’s constitutional attack on the identification procedure under existing law. Accordingly, we hold that Mrs. Foriest’s out-of-court identification of defendant in the Columbia courtroom was not made under conditions constituting a violation of due process of law, and that evidence of that identification, as well as of her in-court identification, was properly admitted. The first assignment of error is overruled.

In his second assignment of error, defendant contends that the trial court erred in refusing to grant him a new trial on the ground that he was convicted on the uncorroborated testimony of an accomplice, Terry Stewart. Stewart, who by his own testimony was in on the robbery’s planning and drove the “get away” car, was clearly an accomplice.

A conviction may not be had on the uncorroborated testimony of an accomplice. Monts v. State, 214 Tenn. 171, 379 S.W.2d 34 (1964); Marshall v. State, 497 S.W.2d 761 (Tenn.Cr.App.1973). While corroborative evidence must consist of some fact specifically linking the defendant to the crime and testified to independently of the accomplice’s testimony, it need not be adequate in and of itself to support conviction. Henley v. State, 489 S.W.2d 53 (Tenn.Cr.App.1972). In the instant case, Terry Stewart’s testimony that defendant committed the robbery is corroborated by Mrs. Foriest’s in-court identification of defendant and by the testimony concerning her out-of-court identification, both of which we have ruled admissible. Defendant, however, argues that the discrepancies between the testimony of Mrs. Foriest and of Stewart as to defendant’s appearance render Mrs. Foriest’s testimony inadequate to corroborate Stewart’s. While some inconsistencies do exist and could properly be considered by the jury as to the weight of the evidence, they are not sufficient to destroy the corroborative value of Mrs. Foriest’s testimony. The crucial corroborative element of that testimony is Mrs. Foriest’s positive identification of defendant Proctor as one of the robbers. This identification was properly admitted into evidence, and it is more than sufficient to corroborate the testimony of the accomplice Stewart. The second assignment of error is overruled.

The third and final assignment of error contains defendant’s contention that the evidence preponderates in favor of his innocence. It is fundamental that the weight and credibility of testimony are to be determined by the jury. Withers v. State, 523 S.W.2d 364 (Tenn.Cr.App.1975); Overton v. State, 521 S.W.2d 229 (Tenn.Cr.App.1974). Basically, the evidence in the instant case consisted of diametric opposites: eyewitness testimony by Stewart and Mrs. Foriest that defendant committed the crime, and alibi testimony by defendant and other defense witnesses. The jury obviously chose to believe the State’s witnesses, as is their prerogative in such cases. The State’s testimony, thus accredited by the jury, clearly establishes defendant’s guilt. Accordingly, defendant cannot show that the evidence preponderates against the verdict, and this final assignment of error is overruled.

The judgment of the trial court is affirmed.

Affirmed.

TATUM and BYERS, JJ., concur.


author: DENTON, Justice.

text:
    GOODYEAR TIRE AND RUBBER COMPANY, Petitioner, v. JEFFERSON CONSTRUCTION COMPANY, Respondent.
    No. B-6929.
    Supreme Court of Texas.
    April 26, 1978.
    Rehearing Denied June 14, 1978.

      Strong, Pipkin, Nelson, Parker & Powers, William B. Coffey, Jr., Beaumont, for petitioner.
    Weller, Wheelus & Green, Kyle Wheelus, Jr., Beaumont, for respondent.
   DENTON, Justice.

This is a third party action on a contract of indemnity brought by Goodyear Tire and Rubber Company against Jefferson Construction Company. At issue is whether fair notice was given of the existence of an indemnity clause in a contract between the parties, and whether the indemnity provision was clear and unequivocal in its terms. After a nonjury trial, the trial court rendered judgment granting the requested indemnity. The court of civil appeals reversed and rendered judgment denying indemnity. 552 S.W.2d 596. We hold that Goodyear was entitled to indemnity under the contract, and accordingly reverse the judgment of the court of civil appeals and affirm that of the trial court.

Jose Negrete was employed by Jefferson Construction Company (Jefferson) and was working on the premises of Goodyear Tire and Rubber Company (Goodyear) on December 8, 1972, when he sustained injuries during the course of his employment. Neg-rete received workmen’s compensation benefits and then filed suit for damages against Goodyear, alleging that his injuries resulted from Goodyear’s sole negligence. Goodyear filed this cross action against Jefferson for contractual indemnity, settled the claim with Negrete, and amended its pleadings to recover the amount of the settlement from Jefferson.

Jefferson had done maintenance work at the Goodyear plant since 1961 pursuant to monthly purchase orders sent by Goodyear to Jefferson. These orders were printed forms, designed primarily for the purchase of goods. It is undisputed that the purchase orders served as the contract between the parties, although they were often not received by Jefferson until after the specified work had already commenced. Two identical pages of the form were generally used every month. In large red print on the front of each page in question here, the form says “Important Notice To Seller” and states that the purchase order is made expressly subject to the terms and conditions on the reverse side. On the front of the first page of the form, Goodyear had typed items specifying the price basis for the work to be done in December, 1972. On the front of the second page were several typed paragraphs, the last of which required Jefferson to carry a certain amount of liability insurance “with respect to the ‘hold harmless’ provisions of the terms and conditions of this purchase order.” The back of each page is headed “Terms and Conditions” and contains 21 numbered paragraphs in fine print. Paragraph 13, is the “hold harmless” section, and provides in part:

(13) To the extent that this Purchase Order calls for work to be performed upon property owned or controlled by Purchaser [Goodyear], it is agreed that .
(d) Seller [Jefferson] will indemnify, save harmless and defend Purchaser from all liability for loss, damage or injury to person or property in any manner arising out of or incident to the performance of this Purchase Order .
(f) To the extent that this Purchase Order provides that Seller will indemnify, save harmless and defend Purchaser from liability, claims, demands or suits, it is the intention of Seller that such indemnity shall apply whether or not the liability, claims, demands or suits arise from the negligence of Purchaser.

(Emphasis added). The evidence showed that of the 115 monthly purchase orders Goodyear had sent to Jefferson prior to December, 1972, only the last eight contained paragraph 13(f). Paragraph 13(d) or a similar “save harmless” provision appeared in all of the purchase orders admitted into evidence, dating back to the form used in 1962.

After suit was brought by Negrete against Goodyear for its sole negligence, Goodyear contended that Jefferson had agreed to indemnify it against the consequences of Goodyear’s own negligence. Jefferson, on the other hand, asserted that the indemnity clause in the applicable purchase order was not binding on it for two reasons: (1) The obligation to indemnify Goodyear from the consequences of its own negligence was not expressed in clear and unequivocal terms. (2) No fair notice of the indemnity clause was given because it was obscurely located in fine print on the back of the form and was recently included in the form without warning from Goodyear. The trial court rendered judgment granting indemnity to Goodyear. The trial was to the court, but no findings of fact or conclusions of law were requested or filed.

The court of civil appeals passed on only the latter of Jefferson’s two contentions stated above. It held that Jefferson was not given fair notice of the existence of the indemnity provision because it was hidden in fine print on the back of the form and because the paragraph was inserted by Goodyear without negotiation, warning, notice, or knowledge. The court of civil appeals therefore reversed and rendered judgment that Goodyear take nothing.

Goodyear now asserts that the court below erred because there is evidence in the record to support the trial court’s implied findings of fair notice and actual knowledge of the existence of the indemnity provision. It is clear that where no findings of fact or conclusions of law are requested or filed, the trial court’s judgment implies all necessary fact findings in support of the judgment. Buchanan v. Byrd, 519 S.W.2d 841 (Tex.1975); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). In reviewing the record to determine if any evidence supports the judgment and concomitant implied findings, it is proper to consider only the evidence favorable to the issue and to disregard all evidence or inferences to the contrary. Renfro Drug Co. v. Lewis, supra. Of course, a fact finding may not be inferred if no evidence supports it. Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410 (1954).

The first question presented is whether Jefferson had actual notice or knowledge of the existence of the indemnity provision. Goodyear contends that there is some evidence to support the trial court’s implied finding of actual notice and that therefore the judgment of the trial court cannot be disturbed. Notice is generally a question of fact and can be decided as a matter of law only when there is no room for reasonable minds to differ. O’Ferral v. Coolidge, 149 Tex. 61, 228 S.W.2d 146 (1950).

The evidence showed that Jefferson rendered maintenance services to Goodyear on a continuing basis and work was often done before the actual purchase order was received by Jefferson. Both parties agreed, however, that each purchase order was a written confirmation of their agreement and constituted their contract. Both the president and vice-president of Jefferson testified that they were aware of the existence of contract provisions on the reverse side of each purchase order. The vice-president, Mr. Hawkins, testified that he had probably read some of the provisions on the back side of the form, but he could not say which parts he had read, if any. Mr. Henson, the president of Jefferson, also testified that he had read parts of the back of the purchase order. When asked at his deposition if he had ever read Paragraph 13(f), Henson initially said “no,” but then said “I probably did, but I don’t remember.” At trial, Henson stated “Well, I’m not sure. I’m pretty sure that I’ve read the entire writing on the back.” Jefferson contends that it was not shown when its officers read a part of the back of the purchase order, whether before or after the occurrence of Negrete’s injuries, or whether they had read a prior form not containing Paragraph 13(f). Jefferson’s contentions are essentially based on evidence which is contrary to that supporting the trial court judgment. It was the duty of the trial judge as the trier of fact to weigh the conflicting evidence as to the actual knowledge possessed by Jefferson’s officers. The testimony of both officers was that they were aware of contract provisions on the back of the purchase order. This evidence, together with the president’s statement that he had probably read Paragraph 13(f), constitutes some evidence of actual notice or knowledge on the part of Jefferson. It was therefore improper to set aside the judgment of the trial court based on the issue of actual notice.

The second question presented is whether fair notice was given of the existence of the indemnity provision. This Court has said:

[A]n indemnity agreement will not protect the indemnitee against the consequence of his own negligence unless the obligation is expressed in unequivocal terms. The obvious purpose of this rule is to prevent injustice. A contracting party should be upon fair notice that under his agreement and through no fault of his own, a large and ruinous award of damages may be assessed against him solely by reason of negligence attributable to the opposite contracting party.

Spence & Howe Construction Co. v. Gulf Oil Corp., 365 S.W.2d 631, 634 (1963); Fireman’s Fund Insurance Co. v. Commercial Standard Insurance Co., 490 S.W.2d 818 (Tex.1972). In connection with indemnity agreements, such as here, which protect the indemnitee against the consequences of his own negligence, the fair notice requirement has been interpreted to include conspicuousness of the provision. In K & S Oil Well Service, Inc. v. Cabot Corp., 491 S.W.2d 733 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.), the court held that an indemnity provision was not conspicuous and was therefore unenforceable because it was hidden on the reverse side of a sales order under a paragraph entitled “Warranty” and was surrounded by completely unrelated terms. The only reference to the indemnity provision was on the second page of the form, which said in small type “subject to the terms and conditions on the reverse side.”

Again, the trial court’s judgment is not to be set aside unless there is no evidence to support its implied fact findings. We are required to look at only the evidence favorable to the trial court judgment in determining whether it is supported by some evidence. The evidence showed Jefferson to be a large business concern with gross revenues of approximately four million dollars per annum. Goodyear’s purchase of maintenance services from Jefferson was an arm’s length commercial transaction. Both parties considered each purchase order to be the contract governing the respective rights and duties of the parties. It was shown that typed on the second page of the purchase order was a requirement that Jefferson carry public liability and property damage insurance with specified policy limits. This was a regular provision typed into each purchase order with which Jefferson always complied. It specifically referred to the “hold harmless” provision on the reverse side. Also, on the front of each page, there was printed in large red type:

IMPORTANT NOTICE TO SELLER THIS PURCHASE ORDER IS EXPRESSLY MADE SUBJECT TO, AND YOUR ACCEPTANCE IS STRICTLY LIMITED TO, THE TERMS AND CONDITIONS STATED HEREIN, INCLUDING THE TERMS AND CONDITIONS STATED ON THE REVERSE SIDE HEREOF.

The indemnity provisions were contained in Paragraph 13 on the reverse side under the heading “Terms and Conditions.” The provisions on the reverse of the form were referred to on the front and constituted a part of the contract of the parties. Goodyear also adduced evidence showing that other parties with whom it dealt had read and objected to Paragraph 13(f). The provision was not, as in K & S Oil, hidden by a misleading heading or surrounded by unrelated terms. We hold that under the circumstances of this commercial transaction, there was some evidence that the indemnity provision was conspicuous enough to give Jefferson fair notice of its existence. Because there was evidence of fair notice to support the trial court’s implied finding to that effect, the court of civil appeals erred in reversing and denying indemnity on this ground.

Under our holdings thus far, we would reversé the judgment of the court of civil appeals. Under such circumstances, however, we are required to examine the brief of the prevailing party in the court of civil appeals to determine whether there is another ground on which its judgment should be affirmed. City of Hutchins v. Prasifka, 450 S.W.2d 829 (Tex.1970); McKelvy v. Barber, 381 S.W.2d 59 (Tex.1964). The ground that Jefferson asserted which the court of civil appeals did not reach was whether the language of the indemnity clause gave Jefferson fair notice of its obligation to indemnify Goodyear against the consequences of its own negligence. Fair rfotice also includes the requirement that such an indemnity obligation be expressed in clear and unequivocal terms. In Fireman’s Fund Insurance Co. v. Commercial Standard Insurance Co., 490 S.W.2d 818, 822 (Tex.1972), we said:

[A] contract of indemnity will not afford protection to the indemnitee against the consequences of his own negligence unless the contract clearly expresses such an obligation in unequivocal terms . We have, in fact, progressed toward the so-called “express negligence” rule as near as is judicially possible without adopting it and thereby requiring in all cases that the parties state, in so many words, that they intend to save the in-demnitee harmless from liability for his own negligence.

See Sira & Payne, Inc. v. Wallace & Riddle, 484 S.W.2d 559 (Tex.1972); Joe Adams & Son v. McCann Construction Co., 475 S.W.2d 721 (Tex.1971); Spence & Howe Construction Co. v. Gulf Oil Corp., 365 S.W.2d 631 (Tex.1963). The indemnity provision contained in Paragraph 13(f) said that “it is the intention of the Seller that such indemnity shall apply whether or not the liability, claims, demands or suits arise from the negligence of Purchaser.” The obligation of Jefferson to indemnify Goodyear against its own negligence was clearly expressed and even specified that the indemnity covered the negligence of the purchaser. We hold that the obligation to indemnify Goodyear against the consequences of its own negligence was clearly expressed by this clause and that its language gave fair notice of the indemnity obligation.

The judgment of the court of civil appeals is reversed and that of the trial court affirmed.


author: POPE, Justice. GREENHILL,

text:
    Ex parte Antonio PADRON, Relator.
    No. B-6930.
    Supreme Court of Texas.
    May 10, 1978.
    Huerta, Pena, Beckman, Rodriguez & Al-faro, J. Manuel Banales, Corpus Christi, for relator.
    Amador Garcia, Corpus Christi, for respondent.
   POPE, Justice.

Antonio Padrón sought release from the Nueces County jail where he was committed and “confined until such time as he shall consent to and does in fact execute and does sign the foregoing instruments in open court.” This court enlarged relator pending our decision in this case. Our concern has been the identity of the order that Padrón is charged with violating.

An order for civil contempt must be grounded upon one’s disobedience of an order that spells out “the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him.” Ex parte Slavin, 412 S.W.2d 43, 44 (Tex.1967). It is the settled rule that to sentence one to confinement for contempt of a prior court order that the order must be unequivocal. We therefore need to find an order of the trial court which unequivocally commanded Antonio Padrón to execute certain instruments.

On January 20, 1976, Antonio and Maria Padrón were divorced. The decree granted Maria the right to acquire Antonio’s interest in the lot and improvements where the family had lived. She had a period of sixty days in which to pay Antonio $2,703.05, the amount of certain stated debts and an additional sum of $6,231.00 as his interest in the property. The decree further provided that, upon Maria’s failure to exercise her right, the property would be sold and the proceeds would be applied on the community debts. It then provided:

Each party hereto shall be reimbursed from such proceeds of sale in an amount equal to the difference between the balance due on the community debts at the time of this judgment and the balance due when such accounts are fully paid. The Respondent (Antonio) is entitled to and is . awarded credit in the amount of $2,050.00 plus one half of the money remaining after payment of all debts from the proceeds of sale as his interest in the real property .

Antonio is not charged with violating that decree, because it ordered him to do nothing.

Maria did not exercise her right to purchase Antonio's interest, so Antonio returned to the divorce court and asked that the court appoint a receiver to effect a sale. After a hearing, the court on April 1, 1976, appointed E. V. De Leon as the receiver. That order stated his powers:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that a receiver should be appointed, and that E. V. De Leon is a person fully qualified to act as receiver to handle the sale of the property and that an appraisal be ordered to determine the actual value of the property.
******

IT IS FURTHER ADJUDGED AND DECREED, that the receiver upon selling the property deposit in the registry of the Court the sum of said sale, and that upon receipt of the amounts that are to be paid discharge the indebtedness of the parties herein, the attorney’s fees to the respective attorneys and, divide the remaining sum in accordance with the original decree of divorce which is incorporated by reference as is fully set out in this order. That order vested all powers over the property in the receiver and it again required Antonio to do nothing.

On January 27, 1977, E. V. De Leon, the receiver, and Maria filed a motion in the original divorce action asking that Antonio appear and show cause why he should not be held in contempt for willful disobedience of the court’s April 1, 1976, order. The motion is significant. It recites that E. V. De Leon was appointed as receiver, that an appraisal had been made of the property showing it was worth $12,500.00, that Antonio Padrón had been called upon to visit the office of Maria’s attorney for an explanation of the transaction, and that Antonio had gone to the office of Maria’s attorney, but refused to sign any ’documents. The motion to show cause charged that Antonio refused to execute the documents to effect the sale. The specific January 27, 1977 charge against Antonio was:

VII. Movants would show that although Antonio Padrón has been able to execute this contract, he refuses to comply and has willfully disobeyed the orders of this Court by failing to execute the necessary instruments to dispose of the property as per the orders of this court.
VIII. Movants, Maria R. Padrón and E. V. De Leon, pray that the Court set a hearing and issue notice to Respondent to appear and show cause why Respondent should not be held in contempt of Court for willful disobedience of the Court’s order by failing to execute the necessary instruments to permit the sale of the property herein.

Attached to the motion to show cause was a contract of sale which had been signed by Maria Padrón as seller and by Mr. and Mrs. Cantu as buyers. Antonio had refused to sign the contract as one of the sellers. E. V. De Leon, the receiver, was unnamed in the contract of sale even though the court's order of April 1, 1976, named him as “a person fully qualified to act as receiver to handle the sale of the property.” His name, however, was mentioned in the contract as the real estate agent to whom six percent real estate commission was payable.

Antonio appeared for the contempt hearing on February 23, 1977, in answer to the charge. The court, instead of adjudicating the contempt matter, heard evidence and then modified its April 1, 1976 order appointing the receiver. That corrective order was actually dated March 15, 1977, and it made explicit the powers of the receiver:

IT IS THEREFORE ADJUDGED AND DECREED that a Receiver should be appointed, and that E. V. De Leon is a person fully qualified to act as a Receiver to handle the sale of the property and that an appraisal should be ordered to determine the actual value of the property. That pursuant to the powers of the Receiver, said E. V. De Leon has the power and authority to execute the appropriate real estate contract in behalf of Maria R. Padrón and Antonio Padrón and to present said real estate contract with the appropriate title company, receive the escrow funds for the purposes of binding the real estate contract and to execute the necessary and proper instruments to consummate the sale to include but not limited to, the real estate contract, warranty deed, and title insurance papers.
IT IS FURTHER ADJUDGED, AND DECREED that Receiver, upon sale of the property, deposit in the Registry of the Court, the sum of said sale, and that upon receipt of the amounts that are to be paid, discharge the indebtedness of the parties herein; the attorneys’ fees to the respective attorneys; and divide the remaining sum in accordance with the original Decree of Divorce which is incorporated by reference as fully set out in this Order.

To this point, the trial court had made three distinct written orders concerning the disposition of the Padrón house, but Antonio was still not ordered to do anything. The order next above strengthened the earlier defective order and made definite and clear that E. V. De Leon “has the authority to execute the appropriate real estate contract in behalf of Maria R. Padrón and Antonio Padrón . . . [Emphasis added.] The court’s order stated that it was the receiver who had the power to “execute the necessary and proper instruments . . the real estate contract, warranty deed, and title insurance papers.”

On June 17, 1977, the receiver and Maria R. Padrón started again with their contempt action. They filed a new motion for Antonio Padrón to show cause. The motion recited the court’s corrected order of March 15, 1977, which vested full powers in E. V. De Leon, the receiver, “to execute the necessary and proper instruments to consummate the sale ... to include the real estate contract, warranty deed, and title insurance papers.” The motion then asserted that Padrón refused to join in signing the documents. The prayer in the motion was that Antonio Padrón must show cause why he should not execute and approve the receiver’s deed and failing to do that, why he “should not be held in contempt of court for willful disobedience of the Court’s order by failing to execute and approve the Receiver’s Deed and [the] closing statement at Stewart Title Company . . ..”

Antonio appeared with his attorney on July 1, 1977, in answer to the show cause order and at the outset of the contempt hearing urged that there was no order that required Antonio Padrón to do anything or sign anything. The court had already twice designated E. V. De Leon as the receiver and had corrected an earlier order to make his appointment and powers clear.

The receiver’s deed was introduced in evidence at the hearing. It recites the order of April 1, 1976, and the later corrective order of March 15, 1977. The receiver’s deed quotes that part of the latter order which clearly designated E. V. De Leon as the receiver with the power and authority to execute all of the necessary contracts, deed and title insurance papers.

At the contempt hearing, Mr. De Leon, the receiver, testified, as did Mr. Neal Fulg-ham, manager of Stewart Title Company, and Mr. Padrón. The evidence was that the title company had required Mr. Padron’s signature on the deed and also on the final settlement statement. The court had never required Padron’s signature. The court in the course of the hearing did not change its earlier written order that had authorized the receiver to execute the documents. The court in the course of the trial orally stated, “the Court will order him to, at this time, sign the Deed and the closing statement,” and “Now, before the Court will enter that as a formal order, Mr. De Leon take the stand and explain what he as the receiver has gone through and what he has done . .” The court recessed the hearing from the morning until 4:00 p. m. so Mr. Padrón and his attorney could examine the deed and closing statement that had been taken from the title company files for introduction in evidence during the hearing. The closing statement had not yet been completed. When the parties returned in the afternoon, the manager for the title company again testified. He said, in answer to a question by Mr. Padron’s attorney, that his company would issue a title policy without Mr. Padron’s signature on orders of the court, but the court did not make such an order since the company was not a party to the suit. The court, after addressing Mr. Padrón about jail facilities, then ordered: “You can sign them now or — if you don’t sign them now, you go to jail.” Upon his refusal to sign he was placed in jail.

The charge against Mr. Padrón, the one about which he was given notice to appear and on which he appeared in court and defended himself, was that he had violated the written order of March 15, 1977. His defense was that neither the March 15, 1977, order nor any other prior order had required his signature. Mr. Padrón established a complete defense to the charge which brought him before the court.

Antonio Padrón came into court to defend a charge of constructive civil contempt. There was a total failure to prove that he was ordered to do anything by the March 15, 1977, order. It was in the course of the contempt hearing that the court placed Padrón on trial for a different violation by summarily making a different oral order. Padrón was then found guilty of violating the new oral order.

Civil contempt in Texas is the process by which a court exerts its judicial authority to compel obedience to some order of the court. Ex parte Werblud, 536 S.W.2d 542 (Tex.1976). One who is committed to jail for civil contempt should be able to find somewhere in the record the written order, which meets the requirements of Ex parte Slavin, 412 S.W.2d 43 (Tex.1967). It is the written order which is entered on the minutes, which a court is directed to sign, Tex.R.Civ.P. 306a, and which evidences one’s rights and duties. Oral orders are poor substitutes for the requirement of one final judgment. We have, in the instant case, an oral order which supplanted a written order. Furthermore, it is the latter which Padrón was required to obey and punished for not obeying.

Ex parte Harvill, 415 S.W.2d 174 (Tex.1967), was a case in which the accused was called to show cause why he should not be held guilty of constructive civil contempt. In the course of that hearing, the court undertook to convert the hearing into a direct contempt hearing by making an oral order. We held in that case that a direct contempt is the “disrespectful conduct concerning the dignity and authority of the court committed in the presence of the court . . . 415 S.W.2d at 177. In rejecting the court’s conversion of the hearing from a constructive civil contempt to that of a direct contempt we wrote:

Relator did no more than assert the right for which he was on trial and due process would be rendered for naught if such assertion could be converted into an act of direct contempt in the manner here shown. Id

It was held earlier in Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406 (1928), that a judgment convicting one of contempt is void when the order was based upon matter foreign to the accusation of contempt. From this record, Antonio Padrón was not contemptuous as charged, and under Har-vill, the court could not convert the constructive contempt into a direct contempt by a new and different order, made in the course of the hearing.

The relator is ordered discharged.

Dissenting Opinion by GREENHILL, C. J., in which BARROW, J., joins.

GREENHILL,

Chief Justice, dissenting.

This is, in my opinion, a ease of direct contempt, contempt in the presence of the court. There is no problem, in my opinion, as to notice. Padrón was in court that morning with his attorney. He was told that the court would order him to sign the deed. When his attorney asked for time to examine the papers, the court recessed the hearing until 4:00 p. m. for that purpose. No objection was made as to this being an insufficient amount of time for the examination of the papers or for Padrón to be advised of his rights by his attorney.

As a result of the conference, Padrón was advised by his attorney to sign the deed; and the attorney so advised the court. The court, as he said in open court he would, ordered Padrón to sign the deed, and Pa-drón refused. No objection was raised as to the form or substance of the deed.

I can think of no reason why putting the judge’s order in writing would have helped Padrón, or due process, one bit. The matter was completely understandable and uncomplicated, and it had been fully explained to Padrón by the court in the morning session, and he had the assistance of counsel if there was any question in the matter.

This court’s holding that the trial court was without power to do what he did is unfortunate in that it thus reduces the power of trial judges.

History has taught us that it is necessary for trial judges to have sufficient power to carry out their orders in the administration of justice within the limits of due process. This power is recognized by the Legislature in Article 1911a. As indicated below, Pa-drón was not deprived of due process. It is the trial judges who are, in my opinion, being deprived of powers by the court’s opinion.

The question is not whether the trial judge acted wisely, or tactfully. The question is whether his order is so wanting in power as to be void. In my opinion, this Court has substituted its sense of fairness for that exercised by the trial judge. In doing so, it has deprived all trial judges of the power to do things under similar circumstances.

So that there may be no misunderstanding, it was Padrón who initiated the sale of the house in question. He asked for the receiver to sell the house, and his motion was granted. He also asked for possession of the house, rather than leaving his wife in possession. When his request was granted and he got possession, he refused even to let an appraiser of the receiver come on the premises to make an appraisal.

As I understand it, the house was appraised for $12,500; and the receiver found a buyer who would pay $12,500 provided there was a title policy. A policy of title insurance was part of the consideration. The court’s order of April 26 authorized the receiver to “handle” the sale “with the appropriate title company” and to consummate the contract “and title insurance papers.” Since Padrón was in possession, the title company would not issue a policy unless Padrón signed the deed.

If there is any good reason why Padrón refused to sign the deed, it has not been made known to the trial court or to us. There are no questions, so far as I know, about the title to the property. Padrón does not even contend that he and his wife did not own the property. No act outside of the presence of the court needed to be established. No witnesses needed to be called, and Padrón had, in my opinion, full knowledge and notice as to what the court would and did direct him to do, — and what his counsel advised him to do after full opportunity to study the matter.

The court, in open court, directed Padrón to sign. In the presence of the court, Pa-drón refused. He was advised that he would be held in contempt. He still refused. To me this is a plain direct contempt of court after due notice, and after Padrón had ample opportunity with the assistance of his lawyer to decide what he would do. His confinement was authorized under Article 1911a.

I would remand Mr. Padrón to the custody of the sheriff.

BARROW, J., joins in this dissenting opinion.

      . MR. BANALES: We are not sure there is a Court Order requiring Mr. Padrón to sign anything. The only order was that a receiver had been appointed to handle the closing of the estate. In the motion for contempt filed by the Petitioner there is no order in there saying that Mr. Padrón is required or shall sign any paper to effectuate the sale of the property and to our knowledge, there is no order requiring him to do that. [S.F.5 6],
      Well, Your Honor, it’s our contention that in order for the property to exchange hands, that it’s no longer necessary for Mr. Padrón to sign anything. Since the Court had divided the property and there is no order of any court— prior order, that Mr. Padrón perform anything — perform any act to effectuate the sale of the property. [S.F.7],


author: DALLY, Judge.

text:
    Ex parte Terry Lynn ASHCRAFT a/k/a Terry Ashcraft
    No. 57857.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 26, 1978.
    Rehearing En Banc Denied June 7, 1978.
    Carol S. Vance, Dist. Atty., and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

DALLY, Judge.

This is a post-conviction writ of habeas corpus proceeding. See Art. 11.07, V.A.C. C.P. The petitioner was convicted for possessing “phentermine, an isomer of methamphetamine,” and is serving the sentence for that conviction.

The petitioner, relying on Riddle v. State, 560 S.W.2d 642 (Tex.Cr.App.1977), and Lumberas v. State, 560 S.W.2d 644 (Tex.Cr.App.1977), asserts that his conviction for the possession of phentermine is void and that he is entitled to be released from confinement.

The defendants in Riddle v. State, supra, and Lumberas v. State, supra, were prosecuted for the possession of phenter-mine under the Dangerous Drug Act. At the time they were alleged to have committed the offense phentermine had been removed from the list of drugs in the Dangerous Drug Act by the Commissioner of Health and added to Schedule IV of the Controlled Substances Act, but phentermine eo nomine was not added to a controlled substance penalty group. See Riddle v. State, supra. Although phentermine eo no-mine has not been placed in a penalty group of the Controlled Substances Act, a prosecution for the possession of that substance may be maintained if it is alleged and the proof shows that phentermine is an isomer of methamphetamine, since the possession of “methamphetamine including its salts, isomers, and salts of isomers,” is a second degree felony, Sec. 4.02(b)(6), Sec. 4.04(b)(1), Controlled Substances Act, Art. 4476-15, V.A.C.S., for which the penalty is confinement in the Texas Department of Corrections for any term of not more than 20 years or less than 2 years. V.T.C.A. Penal Code, Sec. 12.33.

In the instant case the petitioner was charged by the indictment for possessing a “. . . controlled substance, namely: phentermine, an isomer of methamphetamine . . .” and the judgment recites that the petitioner was convicted of this offense. Whether phentermine is an isomer of methamphetamine is a question of the sufficiency of the evidence, see Jackson v. State, 518 S.W.2d 371 (Tex.Cr.App.1975); Wright v. State, 500 S.W.2d 170 (Tex.Cr.App.1973); Taylor v. State, 172 Tex.Cr. 461, 358 S.W.2d 124 (1962), which may not be collaterally attacked. See Wolfe v. State, 560 S.W.2d 686 (Tex.Cr.App.1978); Owens v. State, 540 S.W.2d 324 (Tex.Cr.App.1976); Gaines v. State, 501 S.W.2d 315 (Tex.Cr.App.1973); Ex parte Taylor, 480 S.W.2d 692 (Tex.Cr.App.1971); Ex parte Lyles, 168 Tex.Cr. 145,323 S.W.2d 950-(1959).

The relief sought is denied.


author: PHILLIPS, Judge.

text:
    Delmond RANDLE, Appellant, v. The STATE of Texas, Appellee.
    No. 54341.
    Court of Criminal Appeals of Texas, Panel No. 1.
    May 10, 1978.

      Russell C. Busby, Amarillo, for appellant.
    Tom Curtis, Dist. Atty. and Bruce Sadler, Asst. Dist. Atty., Amarillo, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of murder. V.T.C.A., Penal Code, Sec. 19.02. Punishment was assessed by the jury at 15 years imprisonment.

The evidence adduced at trial revealed that on May 14,1975, the appellant shot and killed Weldon Artis, also known as Donell Collins, in the Blue Moon Recreation Hall in Amarillo. Officer Shelby Vitatoe testified that appellant voluntarily came to the police department on May 14 and, after having been apprised of his rights, gave the following statement:

“My name is Delmond Ray Randle. About 5:20 pm today I was at the Tip Top Cafe and my brother Robert Randle and I were watching Donell Collins and Gary Burks shoot pool. Collins was apparently losing the game and he said to my brother ‘hey nigger you gonna bet or not.’ My brother said he was and Collins said ‘Hey nigger I will make you and your brother both get out of here.’ Collins then went over to this dude named Charles who is a white dude also called Superfly and said, ‘Hey man give me my gun.’ Charles didn’t give him a gun that I could see and then Collins said to me, ‘Hey man I f.. .ed your old lady and put scars between her legs and I drove your GTO.’ I then told Collins that I would bring my old lady and then he could tell both of us that. I then left and went home and got my 45 cal. automatic and then I got my wife and we both went to the Blue Moon Cafe. This was about 5"20pm. I walked inside and Collins was inside and I told him ‘Hey man you come and tell my old lady what you told me earlier.’ Collins then said okay. I got loud with him and said ‘Come on man I gotta go I got hings (sic) to do.’ Then Collins said, ‘Hey nigger you better go on before I kill you.’ He said that two times and started towards me and I reached in the waistband at my back and took my gun out and cocked it and then Collins took off running. I fired one time at him and it hit him. After he went down I shot him three or four more times.”

Dr. Jose A. Diaz-Esquivel, a pathologist, testified that the deceased, Weldon Artis, died from gunshot wounds. There were seven entrance wounds, four to the left side of the back and three in the left arm.

Robert James Randle, the appellant’s brother, testified that on May 14 he was at the Tip Top Cafe watching the deceased play pool with Gary Burks. When the appellant walked in, the deceased said, “Here comes another one of them Randles,” and then told appellant he was having an affair with the appellant’s wife. The appellant and the deceased began “having words” when the deceased pulled a gun he had obtained from Charles Walser. The appellant left the premises. Robert Randle also left and went to a service station for gas. He returned to the Blue Moon Recreation Hall, where the deceased was playing pool. The appellant and his wife arrived at approximately the same time. After they went into the recreation hall, the appellant asked the deceased to prove what he had stated earlier. The deceased then stated, “Oh, man, go on and don’t make me have to hurt you,” and started walking towards the appellant. The appellant then pulled a gun and cocked it. The deceased turned and began to run when the appellant fired two shots at the deceased. The deceased fell and the appellant fired several more shots at him. The appellant then stated, “I hope you die.” Robert Randle did not see the deceased with a gun at the recreation hall.

The appellant testified in his own behalf and stated that on May 14, after he left the Tip Top Cafe, he went home and retrieved a .45 automatic in order to protect himself. The appellant then called the police and stated, “I told them there was a dude down here insulting my old lady, and he threatened me with a gun. I told them if you all wasn’t going to do anything about it, that I would. I say, if you all wouldn’t do anything about it, that you all would have me, and somebody else would have him.” The appellant picked up his wife and drove to the recreation hall. After demanding the deceased repeat his earlier statement, the deceased said, “Nigger, you better leave, before I kill you,” repeating that statement twice. The deceased then started towards the appellant. The appellant backed away four or five feet and pulled his gun as he was backing away. After cocking the gun, he aimed the gun at the deceased. As appellant aimed, the deceased turned and the appellant fired six shots in rapid succession. The appellant saw the imprint of a gun in the deceased’s right front pocket as he approached the appellant. The appellant stated that he believed the deceased could cause him serious bodily injury and that he did not intend to kill the deceased but merely wanted the deceased to apologize for his statements. On cross-examination it was established that the appellant did not see the deceased reach for his pocket after the appellant had pulled a gun, nor did he see the deceased make any aggressive motions.

On rebuttal, Charles Walser testified for the State that he was present at the Tip Top Cafe when the deceased made the derogatory statements to the appellant. Wal-ser had a gun in his possession but never gave it to the deceased while the appellant was present. After the appellant left the cafe, Walser gave the gun to the deceased who pawned the gun at a local liquor store. They then went to the Blue Moon to play pool. When the appellant entered, he demanded the deceased repeat his earlier statements and kept saying, “Come on, cause I got to go.” After repeating that three times, the appellant drew his gun, slid the bolt back, and shot the deceased twice. After the deceased fell, the appellant shot him two more times. The appellant then walked over and sat on the edge of the pool table and “took his time shooting him three more times.” The appellant then looked at the deceased lying on the floor and stated, “I hope you die, you son-of-a-bitch.” Wal-ser testified that the deceased did not have a gun at the time he was killed.

There was testimony that the deceased had been twice convicted for misdemeanor assault and once convicted for carrying a prohibited weapon. Two witnesses testified that the deceased’s reputation for being a peaceful and law-abiding citizen was bad.

In his second ground of error, appellant contends that the trial court erred in failing to charge the jury on the law of self-defense. In Gavia v. State, 488 S.W.2d 420, we stated:

“In determining whether any defensive charge should be given, the credibility of evidence or whether it is controverted or conflicts with other evidence in the case may not be considered. When a defensive theory is raised by evidence from any source and a charge is properly requested, it must be submitted to the jury. It is then the jurors’ duty, under the proper instructions, to determine whether the evidence is credible and supports the defense.”

This portion of the Gavia case was cited with approval in Garcia v. State, 492 S.W.2d 592. The issue presented to this Court is not the truth of the appellant’s testimony but rather, if such testimony is believed by the jury, whether a case of self-defense is fairly presented.

In the instant case; the appellant’s brother testified that prior to the shooting the deceased had pulled a gun on the appellant at the Tip Top Cafe. The appellant confronted the deceased in the recreation hall in order to demand an explanation of certain statements made concerning appellant’s wife. At that time, the deceased threatened appellant, stating, “Nigger, you better leave, before I kill you.” The deceased repeated this statement and started towards the appellant. The deceased was a man weighing over 200 pounds and standing approximately 6'5" while the appellant was suffering from a back injury and was wearing a back brace. There was also testimony concerning several prior incidents between the appellant and the deceased. The appellant stated that he was afraid of serious bodily injury as the deceased approached, and he backed away from the deceased four or five feet. As the deceased advanced, the appellant saw a gun in the deceased’s right front pocket. The appellant pulled his gun and when the deceased turned, the appellant fired rapidly.

We conclude that this testimony raised the issue of self-defense and that the trial court erred in overruling appellant’s objection to the charge. Whether the events actually happened the way appellant testified was a question for the jury, but the jury was denied the opportunity to decide those facts because a charge on self-defense was not given. The jury should have been instructed to decide these facts under the law of self-defense. Henry v. State, 164 Tex.Cr.R. 199, 300 S.W.2d 79; Jones v. State, Tex.Cr.App., 544 S.W.2d 139; Rodriquez v. State, Tex.Cr.App., 544 S.W.2d 382; Brooks v. State, Tex.Cr.App., 548 S.W.2d 680; cf. Berry v. State, Tex.Cr.App., 504 S.W.2d 501.

In addition to his ground of error two, appellant contends that the trial court erred in refusing to allow the appellant to impeach the State’s rebuttal witness, Charles Walser, by showing Walser was under indictment in the Potter County Jail for a different offense. In a hearing outside the presence of the jury, it was established that Walser was under a felony indictment for possession of methamphetamine. His bond had been set at $10,000.00. The bond was reduced to $5,000.00, an amount Walser could make, on the day he testified. While the prosecutor stated that there was no deal with the witness for his testimony, the appellant wanted to bring the fact of his incarceration before the jury in order to establish bias and motive for his testimony.

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the United States Supreme Court held that a defendant was denied the right of effective cross-examination when the trial court refused to permit the defendant to cross-examine a State’s witness concerning his status as a juvenile probationer. The defendant in Davis sought to establish the bias or motive of the State’s witness, Richard Green, by showing that the witness may have testified under fear and apprehension of probation revocation. In Davis, the United States Supreme Court stated:

“. . . We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.
******
“We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on Green’s testimony which provided ‘a crucial link in the proof . of petitioner’s act.’ Douglas v. Alabama, 380 U.S., at 419, 85 S.Ct., at 1077. The accuracy and truthfulness of Green’s testimony were key elements in the State’s case against petitioner. The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of Green’s vulnerable status as a probationer, . ..” (Emphasis added)

This Court has most recently faced this issue in the case of Castro v. State, 562 S.W.2d 252, where, in a unanimous decision, we held:

“As this Court has stated many times, great latitude should be allowed a defendant in showing any fact which would tend to establish ill feelings, bias, motive and animus upon the part of any witness testifying against him.” [Citations omitted.]
“In Blair v. State, supra, we stated that any possible malice, bias or prejudice towards the defendant on the part of the witness is admissible to attack his credibility and to lay the groundwork for possible impeachment. The motives which operate on the mind of a witness when he testifies are never regarded as immaterial or collateral matters. [Footnote omitted.] The defendant may prove facts ‘which tend to show bias, interest, prejudice or any other mental state or status which fairly construed might tend to affect his credibility.’ See 1 Branch’s Ann. P.C.2d Ed. Sec. 185.
“In Evans v. State, supra, this Court reversed a conviction where the trial court refused to allow the defendant to show that a witness testifying for the State against the defendant was currently under indictment. We held that the claim of bias, interest and motive which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of the witness’ vulnerable status as an indictee, as well as of the witness’ possible concern that he might be a suspect in the offense.
* * * * * *
“. . . The inference that the jury could have drawn was that Rhoades had a personal interest in helping the prosecution prove its case against appellant and, therefore, may have been an unreliable witness. While the jury may have chosen to reject such an inference, especially since Rhoades denied that he was testifying for the State because of his vulnerable status, this evidence was nevertheless admissible and appellant should have been permitted to prove these facts.”

In the instant ease, the defense was entitled to demonstrate to the jury the bias or motive of the State’s rebuttal witness Walser. The fact that Walser was under indictment was admissible to afford a basis for an inference of undue pressure due to his status as an indictee. As in Castro, while the jury may have rejected such an inference, the appellant was nonetheless entitled to bring these facts before the jury.

Further, it cannot be said that the failure by the trial court to allow such cross-examination was harmless in the present case. Walser was the only witness who testified that the appellant killed the deceased deliberately, in a casual fashion “like he was just taking all the time in the world to kill this man.” Walser also testified that the deceased had pawned his gun and did not have a gun- in his pocket at the time he was killed. Consequently, the appellant was thus denied his right to effectively cross-examine witness Walser “to expose to the jury the facts from which jurors, as the sole triers of fact-and credibility, could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, supra, 415 U.S. at 318, 94 S.Ct. at 1111.

For the reasons stated, the judgment is reversed and the cause remanded.


author: TOM G. DAVIS, Judge.

text:
    George WARREN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 54689.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 24, 1978.

      Vernard G. Solomon, Marshall, for appellant.
    Sam F. Baxter, Dist. Atty., Marshall, Jim D. Vollers, State’s Atty., Austin, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for the offense of murder. The jury assessed punishment at ten years.

In light of appellant’s contention relative to the court’s denial of his requested charge, a brief resume of the evidence is deemed necessary.

The record reflects that on the morning of August 19, 1974, the deceased, Alma Owens, entered the appellant’s apartment, where she was shot by appellant. According to an eyewitness, the victim then rushed out of the apartment, followed by the appellant, who fired several more times. The police were summoned and the appellant arrested at the scene. He voluntarily turned over a small caliber pistol to the investigating officers. Robert Reed testified that he was the manager of the apartment complex where the appellant lived and that several months prior to the shooting the appellant had complained to him that the deceased wanted to kill him. The appellant testified in his own behalf and admitted shooting Alma Owens. He testified that the victim on numerous occasions had threatened his life and stated that she would have him killed or kill him herself. The appellant testified that the victim had told him previously that she would kill him on the day of the shooting. He also stated that on the day of the shooting he had seen the deceased with a gun. He related that she came into his apartment uninvited, that he believed the deceased had a weapon, that he had no place to retreat, and that he was acting to protect his own life when he shot and killed the deceased.

The appellant also introduced testimony of a psychologist and a psychiatrist, whose testimony raised the issue of insanity. See V.T.C.A. Penal Code, Sec. 8.01.

The appellant complains that the trial court refused to include in its charge his specially requested instruction on the use of deadly force in defense of a person pursuant to V.T.C.A. Penal Code, Sec. 9.S2. The record reflects that the trial court did charge on self-defense under V.T.C.A. Penal Code, Sec. 9.31, but did not include an instruction on the use of deadly force.

The appellant argues that the charge given by the court on self-defense under V.T. C.A. Penal Code, Sec. 9.31, failed to protect his rights because the issue of self-defense, if raised at all, related to the use of deadly force.

The State argues that the appellant may not urge inconsistent defenses. It appears to be the State’s position that since the appellant was also urging the defense of insanity, on which the jury was charged, that he was not entitled to any charge on self-defense. During oral argument, the State suggested that a defense of insanity under V.T.C.A. Penal Code, Sec. 8.01, should be treated in the same manner as the defense of entrapment under V.T.C.A. Penal Code, Sec. 8.06, where a defendant denies commission of the crime, and that inconsistent defenses should not be allowed.

The reason that the defense of entrapment is not available to one who denies he committed the offense is that the defense of entrapment necessarily assumes that the act charged was committed. Canales v. State, Tex.Cr.App., 496 S.W.2d 614; Cooper v. State, 162 Tex.Cr.R. 624, 288 S.W.2d 762; Godin v. State, Tex.Cr.App., 441 S.W.2d 196. In Garcia v. State, Tex.Cr.App., 492 S.W.2d 592, reversal resulted for failure to charge on the issue of self-defense when such defense was raised by the evidence even though the trial court had charged on the defense of accident. The rationale underlying the denial of an entrapment charge (where a defendant denies he committed the crime) clearly does not deprive accused of a charge on self-defense where same is raised by the evidence simply because the defendant has entered a plea of insanity.

A defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence regardless of whether it is strong, feeble, unimpeached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. Hunt v. State, Tex.Cr.App., 492 S.W.2d 540; Shaw v. State, Tex.Cr.App., 510 S.W.2d 926 (Opinion on Appellant’s Motion for Rehearing); Carter v. State, Tex.Cr.App., 515 S.W.2d 668. The defendant’s testimony alone may be sufficient to raise a defensive theory requiring a charge. Cain v. State, Tex.Cr.App., 549 S.W.2d 707; Sargent v. State, Tex.Cr.App., 518 S.W.2d 807; Ray v. State, Tex.Cr.App., 515 S.W.2d 664; Gavia v. State, Tex.Cr. App., 488 S.W.2d 420.

The trial court is required when properly requested to charge on every defensive issue raised by the evidence. Stiles v. State, Tex.Civ.App., 520 S.W.2d 894; Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716. See 31 Tex.Jur.2d, Instructions, Sec. 110, p. 600.

In the instant case the testimony of the appellant raised the issue of self-defense. The evidence is uncontradicted that the appellant shot the deceased with a pistol. Appellant testified that the deceased had threatened to kill him on the day of the shooting, that he had seen her with a gun on the day of the shooting, that he believed she had a weapon when she entered his apartment, that he had no place to retreat, and that he shot her . to protect his life. Appellant’s rendition of the facts raised an issue that entitled him to an instruction on his justification in using deadly force against the victim. The appellant having requested a charge under See. 9.32, supra, and the issue having been raised by the evidence, the trial court reversibly erred in failing to give such instruction to the jury.

For the reasons stated above, the judgment is reversed and the cause remanded.

      . Appellant’s requested instruction reads:
      “Upon the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful force.
      “A person is justified in using deadly force against another if he would be justified in using force against the other in the first place, as above set out, and when he reasonably believes that such force is immediately necessary to protect himself against the other person’s use or intended use of unlawful deadly force, and if a reasonable person in defendant’s situation would not have retreated.
      “By the term ‘deadly force’ is meant force that is intended or known by the person using it to cause, or in the manner of its use or intended use is capable of causing death or serious bodily injury.
      “By the term ‘reasonable belief’ as herein used is meant a belief that would be held by an ordinary and prudent person in the same circumstances as defendant.”
      Appellant’s requested instruction on the justification of the use of deadly force appears to be identical to the one given in Sternlight v. State, Tex.Cr.App., 540 S.W.2d 704, and approved therein under complaint as to the retreat portion thereof. The requested charge appears to’ follow the one set forth in McClung’s Jury Charges for Texas Criminal Practice (1976), page 96.


author: ONION, Presiding Judge.

text:
    John Turner JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 55598.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 24, 1978.

      Howard G. Wilson, Mesquite, for appellant.
    Henry Wade, Dist. Atty., Fred C. McDaniel, Rider Scott and Brady Sparks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for aggravated robbery where the punishment was assessed by the jury at sixty-five (65) years’ confinement in the Texas Department of Corrections.

At about 6:00 p. m. on October 2, 1975, the manager of the Robert Hall Department Store on Greenville Avenue in Dallas was robbed, at gunpoint, by five people. The manager was badly beaten and $325.00 was taken. Shortly thereafter the police were called and a description of the suspects and their car was broadcast over the police radio. About 6:30 p. m. a car matching the description of the get-away car was seen just after it had been parked by some apartments. A few minutes later the car was seen leaving the apartment parking lot with three people in it. These three people matched the descriptions received from the Robert Hall Store and they were stopped and arrested.

It was ascertained from questioning at least one of the suspects at the police station that appellant and another person had participated in the robbery, that he was located in a certain apartment near where the suspects were arrested, that he was armed, and* that he might attempt to flee. An attempt to find a magistrate at City Hall to obtain a warrant proved fruitless because it was then about 9:15 p. m.

Two officers went to the address given them and knocked on appellant’s door. He opened it a few inches, but attempted to shut it when one officer announced they were police officers. The officers recognized appellant from the description given them by the suspects in custody and the witnesses to the robbery. They pushed the door open and arrested appellant. A loaded pistol was observed on the breakfast bar a few feet from appellant.

One of the officers immediately went into the hallway to the two bedrooms in the apartment to look for the other unappre-hended robber or any other person who might be a danger to him or his partner. He looked into the bedrooms through the opened doorways and in appellant’s bedroom saw another pistol on top of the nightstand. When he went to get this pistol he observed in an open drawer of the nightstand a lot of change, some of which was in bank rolls, and some personal papers of appellant. A search of appellant revealed he had on him a ten dollar bill and thirty dollar bills.

Appellant unsuccessfully attempted to suppress the pistols and money found on him and in his apartment. He contends that the trial court erred in denying his motion to suppress because no probable cause existed for his arrest and the search of his apartment, no warrant was obtained for his arrest or the search, and that the search of his apartment, even if the arrest was lawful, exceeded the limits of a search incident to an arrest.

It is well established that probable cause to arrest exists where the facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trustworthy information would warrant a reasonable and prudent man in believing that a particular person has committed or is committing a crime. Hooper v. State, 516 S.W.2d 941 (Tex.Cr.App.1974); Jones v. State, 493 S.W.2d 933 (Tex.Cr.App.1973); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972).

Here the arresting officer had the physical description of appellant given by the persons at the scene of the robbery. This description was corroborated by one of the participants in the robbery who was cooperating freely with the police and who also supplied the name of appellant and the address where he was located. When appellant opened his door to the police officer’s knock, he was recognized by the arresting officer from the descriptions given by the suspect in custody and the witnesses to the robbery. Under the circumstances, we find the officer had probable cause to arrest appellant.

Further, we find exigent circumstances to justify the failure of the officers to obtain a warrant. It was about 9:00 p. m., only some three hours after the robbery and about two hours after three of the five robbers had been arrested in close proximity to appellant’s apartment, when the police were able to ascertain the name and location of appellant from one of the participants in the robbery. The arresting officer had fifteen years of experience and testified that he knew it was unlikely that he could find a magistrate at that time of night to obtain a warrant, but he spent some fifteen minutes in an effort to do so. After he found no magistrates were readily available, he properly acted on the information provided him that appellant was armed and dangerous and that he might attempt to flee.

We also find nothing improper in the seizure of the money from appellant’s person and the pistols and coins from appellant’s apartment.

The search of appellant, which revealed the forty dollars, was incident to his lawful arrest and therefore reasonable. Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977); Parker v. State, 544 S.W.2d 149 (Tex.Cr.App.1976); Reed v. State, 522 S.W.2d 916 (Tex.Cr.App.1975). The pistol on the breakfast bar was contraband in plain view which may be lawfully seized by an officer who is lawfully on the premises as these officers were. Clark v. State, 548 S.W.2d 888 (Tex.Cr.App.1977); Evans v. State, 530 S.W.2d 932 (Tex.Cr.App.1975); Simpson v. State, 486 S.W.2d 807 (Tex.Cr.App.1972).

The pistol on the nightstand and the change in the open nightstand drawer in appellant’s bedroom present a somewhat different situation. Appellant, citing Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), argues that these items were seized in a search which exceeded the limits of a lawful arrest. However, as this court noted in Simpson v. State, supra;

“. . We do not construe the holding in Chime1 as absolutely prohibiting searches beyond the area of the arres-tee’s reach; but rather, we feel that Chi-mel only prohibits routine searches of the area beyond the arrestee’s reach (footnote omitted). It does not prohibit a search beyond that area if the circumstances of the arrest are such that an arresting officer would be justified in believing that an expanded search would be necessary for his protection. . . . ”

See also Duncan v. State, 549 S.W.2d 730 (Tex.Cr.App.1977), and Clark v. State, supra.

Here the officers knew that appellant was only the fourth of five robbers who had been arrested and they were fully justified for their own protection to go into the hall and look into the open doorways of the bedrooms to see if the fifth robber, or someone else, was there who might cause them harm. The pistol and the change in the drawer being in plain view were properly seized. Clark v. State, supra; Evans v. State, supra; Simpson v. State, supra.

These grounds of error are therefore overruled.

We have also carefully considered each of the other grounds of error set forth in appellant’s pro se brief and find them to be without merit.

There being no reversible error, the judgment is affirmed.