author: ONION, Presiding Judge. ODOM, Judge

text:
    Maurice SIGARD, Appellant, v. The STATE of Texas, Appellee.
    No. 51467.
    Court of Criminal Appeals of Texas.
    June 9, 1976.
    Rehearing Denied June 30, 1976.

      Sam C. Bashara, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Gordon V. Armstrong and Susan Spruce, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of sale of heroin under the former Penal Code. In a bench trial the court assessed punishment at life, the punishment being enhanced under the provisions of Article 63, Vernon’s Ann.P.C., 1925.

Appellant urges six grounds of error concerning the absence of an alleged informer, Jimmy Levine aka Jimmy Martinez, Jimmy Martinez Levine, Jesse or Jesus Cont-rares. He contends the court erred in overruling his motion to dismiss the prosecution, his motion to abate the prosecution, his motion to suppress evidence, his third motion for continuance, and further contends he was denied compulsory process of witnesses and denied due process when the court refused to require the State to produce Jimmy Levine as a material witness for the defense. The failure of this same individual to appear as a witness was presented in White v. State, 517 S.W.2d 543 (Tex.Cr.App.1975).

A review of the hearing on all pre-trial motions held on May 22, 1975, concerning the absence of Levine is necessary to fully appraise appellant’s contentions. The alleged primary offense is shown to have occurred on July 10, 1972, and the indictment upon which the appellant was tried on May 22, 1975, was returned on March 8, 1973. It does not appear to have been the first indictment returned in connection with the alleged offense.

Albert Chevera testified he worked as an undercover agent for the San Antonio Police Department and that Levine accompanied him on nearly all of the 138 cases he made. He testified that Levine was with him on July 10, 1972, when they encountered the appellant Sigard while they were looking for another individual. Sigard asked Chevera if he wanted to “score.” Chevera gave Sigard $30.00 and all three got in a ear and Sigard directed him to another location where Sigard left Levine and Chevera in the car and returned a few minutes later and handed a yellow balloon to Chevera which was later shown to contain heroin.

Chevera testified that he knew Levine as Jimmy Martinez and “a bunch of names,” but didn’t know where he lived but always met him at pre-arranged locations. He stated he had not seen Levine since “right before I quit working undercover.” He did not know where Levine was.

Preston Slocum, Jr., of Houston testified he was a San Antonio police lieutenant on July 10, 1972. He knew that Levine was working with Chevera as an informant and was being paid between $35.00 and $50.00 for each case made. He could not recall the date he last talked to Levine over the telephone, but thought it was late August or early September, 1972, just before a narcotics roundup, which apparently, although not clearly established, resulted from the cases Levine had assisted in making. Levine told Slocum that he was going to leave town, and Slocum replied that he “thought that was a good idea” and told Levine he would send him some “eating money.” Slocum sent $75.00 to Levine by Officer Odis Doyle. Slocum testified he agreed it was a good idea for Levine to leave town for his safety and security. Slocum testified he never knew where Levine lived and did not know his present whereabouts.

Odis Doyle, San Antonio police sergeant, testified he was working on July 10, 1972, and that he had known Levine some months prior thereto, and that Levine was assisting in making narcotics cases for him for a certain period of time. He last saw him in the early part of September, 1972, when he delivered to him at the Globe Store on Santa Rosa Street the $75.00 he had gotten from Slocum, and this was before the warrants were issued on September 7,1972, for a narcotics roundup. He stated he knew where Levine lived before that time, but not at the present time and that he had no control over whether Levine left town or not.

Mary Helen Ñapóles of 3118 West Commerce Street testified that Levine lived at her house for awhile and she was his girlfriend, but they broke up in July, 1972, and she had not seen him since and did not know where he was.

Marie Levine of 518 San Joaquin testified she was his sister-in-law, but she had not seen him for five or six years.

Assistant District Attorney Bill White testified that he and his office had tried to learn Levine’s whereabouts and had checked the national computer system, the P.B.I. and penitentiary records, all without success.

Deputy Sheriff Antonio Gonzales attempted to serve a subpoena on Levine requested by the appellant some 16 days prior to trial and found the address listed was not a current address. Deputy Sheriff William Schultz testified that he learned that Levine had not been at the address listed on the subpoena for over three years. He stated the sheriff’s office had done everything they could to locate Levine but had been unsuccessful.

In addition to the above witnesses, appellant, in support of his pre-trial motions, called a private investigator that he had employed. The investigator testified he had spent 55 hours from January to the time of hearing on May 22, 1975, trying to locate Levine, without success.

The appellant Sigard, testifying for the limited purpose of the hearing, stated he first became acquainted with Levine at the San Antonio State Hospital where they were both being treated for narcotic addiction, but knew him as Contrares. He related that he had seen Levine and Chevera near a restaurant on July 10,1972, and that Levine had introduced Chevera as a cousin. Both told him they were “strung out” and were looking for narcotics and asked the appellant to accompany them because “Little Joe,” whom they were looking for might not recognize Levine but would recognize the appellant. They drove to a location and Chevera gave Levine $30.00, and the appellant and Levine went to an upstairs apartment where Levine talked to someone through a door and obtained two balloons of apparent heroin for $30.00. Appellant related they returned to the car and that the other two took him back to the restaurant; that he did not receive any of the heroin. He stated he believed that Levine would testify to substantially the same facts and show that he did not sell heroin to Chevera. He testified that after his arrest he heard others arrested talking about a “Levine” as having made the cases against them, but at the time he didn’t know Cont-rares was Levine. He then detailed his unsuccessful efforts to find Levine.

After the hearing, the court overruled all pre-trial motions and ordered the appellant to trial. The appellant pled “not guilty.” The State also offered the testimony of Chevera, Doyle and that of a chemist. The State also offered proof of the prior convictions alleged. The appellant did not testify.

We held in James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973), that the identity of an informer must be disclosed when he was present at the time of the occurrence of the alleged crime. See also Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). There can be no question in the instant case but that the identity of Levine was revealed or was otherwise well known to the appellant.

Further, in regard to appellant’s contention that he was denied the compulsory process of witnesses, we observed that the Sixth Amendment does not require that the State or government be successful in trying to subpoena witnesses. All that is required is that the process issue and due diligence be exercised in a good faith attempt to secure service of the process. United Sates v. Bolden, 461 F.2d 998 (8th Cir.1972); Maguire v. United States, 396 F.2d 327 (9th Cir.1968).

While a guarantee of compulsory process for obtaining a witness means that the accused is entitled, as a matter of right, to invoke the aid of the law to compel the personal attendance and actual presence of a witness at his trial when their presence is obtainable, nevertheless, it does not amount to guarantee of actual attendance of such witness, and the fact that despite all efforts being made the witness is still absent at the time of the trial, this absence does not show a denial of any constitutional right of the defendant. 97 C.J.S. Witnesses § 10, and eases cited thereunder.

The Fifth Circuit Court of Appeals announced the rule in United States v. Gentile, 495 F.2d 626, 634 (5th Cir.1974), that “(w)hile the government is not required to actually produce the informer at trial, once the identity is revealed, we think the better practice is to require disclosure of the last known residence of the informer or to provide reasonable assistance in locating him.” See also United States v. Ortega, 471 F.2d 1350, 1358 (2nd Cir.1972).

The Tenth Circuit Court of Appeals enunciated a similar guideline in United States v. Hayes, 477 F.2d 868 (10th Cir.1973), that “(t)he government is not the guarantor of the appearance of its informant at trial, but is required to accord reasonable cooperation in securing his appearance where a timely request is made and his testimony might substantiate a claim of the defense.”

These decisions are of benefit in the present situation. The apparent conclusion to be drawn from the State’s witnesses seems to be that Sgt. Doyle was the only one who ever knew where Levine lived and that was over two and one-half years prior to the actual trial. Neither Sgt. Doyle, Chevera nor Slocum was aware of appellant’s location at the time of trial. Deputy Sheriffs Schultz and Gonzales did exercise a good faith effort and due diligence to serve the subpoena requested by the appellant at three of the last known addresses of appellant. We further observe that Assistant District Attorney White attempted to locate Levine through the national computer system and the penitentiary systems. He also instructed one of his investigators to seek Levine through his old neighborhood. Appellant’s diligent search and subsequent failure to locate Levine lends credence to the State’s good faith efforts. The efforts of the State to locate Levine must be viewed as reasonable assistance and cooperation in attempting to locate him.

Further, we cannot reach the conclusion that Lt. Slocum had the $75.00 delivered to Levine two and one-half years prior to the actual trial of the case in order to conceal evidence and deprive the appellant of the right of compulsory process of witnesses. The appellant had not even been arrested, and no indictment had ever been returned at the time. The record reflects that Slocum’s reasons were dictated by his concern for Levine’s personal safety and security which would make it a “good idea” for Levine to leave town prior to the narcotics roundup. As stated in the concurring opinion on the State’s motion for rehearing in White:

“. It is certainly common knowledge that lives of informers in narcotic cases are in constant danger. The conversation appears to have taken place shortly after Leveine’s activities as an informer had been completed. Upon Le-veine’s suggestion that he ‘needed some money to eat’ Slocum sent him $75.00 by one of his officers. The amount involved was not sufficient to allow him to travel any great distance or to keep him in food for long.”

Slocum’s action cannot be seen as a calculated attempt to deprive this appellant of compulsory process because of Levine’s unavailability two and one-half years later. Indeed, Levine’s appearance as a witness at future trials would seem to be more assured and likely if he sought safety out of town at the time than if he remained in town at the mercy of alleged narcotics pushers who might be released on bond.

Further, for the same reasons, we cannot conclude that the appellant was deprived of due process or that the court erred in overruling the motion for the State to produce Levine, his motions to abate or dismiss the prosecution, the motion to suppress evidence or the third motion for continuance based on the absence of Levine, as were the earlier motions. We are here confronted with a case that long pended on the docket of the court while both sides made a diligent effort to locate Levine without success and there was no showing that if the case was continued there would be any chance of locating Levine, and further, neither the State nor the appellant knew for sure what Levine’s testimony would be. Under the circumstances, the trial court cannot be faulted for proceeding with the trial almost three years after the alleged offense and over two years after return of the last indictment.

Lastly, appellant complains of the trial court’s overruling his motion for new trial and the pro se supplement to the motion. It is observed such motion and supplement were based on the same grounds as discussed above, and the overruling of such motion and supplement presents no error.

The judgment is affirmed.

ODOM, Judge

(dissenting).

I dissent to the affirmance of this case, and if I could determine what rule of law is being applied by the majority, I would probably dissent to that hidden reasoning as well.

The first half of the majority opinion sets out the facts. Then, after observing that the disclosure of the identity of the informer constituted compliance with James v. State, 493 S.W.2d 201 (Tex.Cr.App.), the majority opinion briefly reviews statements from several cases out of several United States Courts of Appeals, which, of course, are not controlling authority in this jurisdiction. It is then proclaimed: “These decisions are of benefit in the present situation.” How they are “of benefit” is not explained. Guidelines might well benefit us and the rest of the bench and bar of Texas, but I see no guidelines established in the majority opinion.

Instead of guidelines, the majority opinion simply recites evidence that months after the disappearance of the witness the State made considerable effort to relocate him, and that the initial State action was inconsequential because seventy-five dollars “was not sufficient to travel any great distance nor keep him [the missing witness] in food for long.”

It is true that the State made diligent effort to find the witness, and that good faith effort is to be commended. But the ineffectiveness of that effort only serves to demonstrate all the more dramatically how successful the disappearance was in the first place. It is useless to close the barn door after the horses are gone.

The majority express concern over the safety of Levine, but should not the constitutional rights of the accused also receive our concern? As was stated in White v. State, 517 S.W.2d 543 at 548 (Tex.Cr.App.) (majority opinion on original submission), “Other means are available for the protection of a material witness than sending him out of town and rendering him totally unavailable to either party.” The majority state, “Levine’s appearance as a witness at future trials would seem to be more assured and likely if he sought safety out of town at the time than if he remained in town at the mercy of alleged narcotics pushers who might be released on bond.” It need only be observed that if it was the State’s purpose to guarantee Levine’s safety for appearance at appellant’s trial, the State’s plan utterly failed here, regardless of the likelihood asserted by the majority. Furthermore, the State has not asserted any such plan for Levine, nor explained its failure. Also, if Levine had remained in town, the State would not have been required to leave him at anyone’s “mercy”, but surely could have given him protection if needed. In sum, the two alternatives posed by the majority are not the only two that were available, and the one given the nod of approval by the majority was not even carried out by the State in this case.

The majority’s apparent reliance, in reaching its decision, on the amount of the money given the missing witness by the State surprises me. Instead of asking whether the State’s action was improper, the majority asks how much money was paid. Is the Court today holding that State action that successfully contributes to the disappearance of a material defense witness presents reversible error only if the State paid the entire bill? How much money paid to the witness would have changed the disposition of this case?

The case should not turn on how much money was paid but, instead, on whether the action was successful and, if so, whether the State participated at all. The appropriate analysis for disposition of the issue is that set out in White v. State, supra, in the majority opinion on original submission. When a defendant asserts denial of compulsory process on the basis of State action rendering the witness unavailable, the relevant inquiries are (1) materiality of the witness, (2) timely pursuit by the defense, (3) knowledge of the materiality of the witness at the time of the State’s action, and (4) improper action attributable to the State contributing to the witness’ unavailability. I am convinced in this case as I was in White v. State, supra, that reversible error has been shown.

For the foregoing reasons, I dissent.

ROBERTS, J., joins in this dissent.

      . Throughout the transcription of the court reporter’s notes we find the name spelled “Levine,” but elsewhere in the record it is spelled “Leveine” as it was in White v. State, 517 S.W.2d 543 (Tex.Cr.App.1975).

      . Appellant’s trial counsel testified that the original indictment related only to the primary offense and that a subsequent indictment returned on March 8, 1973, included allegations as to the prior convictions. The date of the original indictment does not appear in the record.

      . It does not appear that Doyle was asked at what address Levine lived before September 7, 1972.

      . See also Article I, Sec. 10, State Constitution.


source: Caselaw Access Project

author: BROWN, Commissioner.

license: Public Domain

text:
    Gary Lyn FAULKNER, Appellant, v. The STATE of Texas, Appellee.
    No. 51677.
    Court of Criminal Appeals of Texas.
    June 9, 1976.
    Rehearing Denied June 30, 1976.
    Sam J. Chase, Abilene, for appellant.
    Ed Paynter, Dist. Atty., and Don R. Wilson, Asst. Dist. Atty., Abilene, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a misdemeanor conviction for possession of marihuana. The appellant waived his right to a jury trial and the court found him guilty and assessed punishment at one hundred eighty (180) days in the Taylor County jail and a fine of two hundred fifty and no/100 ($250.00) dollars. The imposition of the jail punishment was suspended and appellant was placed on probation.

The sufficiency of the evidence is not challenged. By his sole ground of error appellant attacks the validity of the search warrant.

The affidavit and warrant read as follows:

“SEARCH AND ARREST WARRANT
“STATE OF TEXAS
“COUNTY OF ABILENE (sic)
“THE STATE OF TEXAS to the Sheriff or any Peace Officer of Abilene, Taylor County, Texas, or any Peace Officer of the State of Texas, GREETINGS:
“Whereas, the affiant whose name appear (sic) on the affidavit attached hereto is a Peace Officer under the laws of Texas, and do heretofore this day subscribe and swear to said affidavit before me (which said affidavit is here now made part hereof for all purposes), and whereas I find that the verified facts stated by the affiant in said affidavit show that the affiant has probable cause for the belief that he expresses therein and establish existence of proper grounds for issuance of this warrant; now, therefore, you are commanded to enter the suspected place described in said affidavit and to seize same and bring it before me and to arrest and bring before me each suspected party named in said affidavit;
“Herein fail not, but have you then and there this warrant within three days, exclusive of the day of its issuance and exclusive of the day of its execution, with your return thereon, showing how you executed the same.
“Witness my signature and issued on this the 6th day of December A.D., 1974, at 3:40 a. m.
/s/ Donald H. Lane 42nd District Court Taylor County, Texas”
“COMPLAINT — AFFIDAVIT FOR SEARCH WARRANT FOR A CONTROLLED SUBSTANCE
“THE STATE OF TEXAS
COUNTY OF TAYLOR
“John R. Perry, do solemnly swear that heretofore, on or about the 6th day of December A.D. 1974, in the Abilene, Taylor County, Texas, one Gary Faulkner and Hilton Puckett and person or persons unknown to the affiant either by name or description but being located on said premises: hereafter referred to as ‘Suspected Party’ for purposes of this affidavit and search warrant did then and there unlawfully possess and does at this time unlawfully possess a substance prohibited by the Controlled Substance Act of the State of Texas, to-wit: marijuana in a residence and curtilage being described as brown brick apartment complex, trimmed in white and having dark brown shingle type roof with front door of said apartment being on the West side of the building located at 2408 Buffalo Gap Road, apartment # 117 of the Three Fountains Apartments in Abilene, Taylor County, Texas, which said apartment # 117 (residence) is possessed, occupied, under the control and charge of above mentioned ‘Suspected Party’
“MY BELIEF OF THE AFORESAID STATEMENT IS BASED ON THE FOLLOWING FACTS:
“That the affiant has received information from a credible, reliable and trustworthy person who the affiant does not wish to name for security reasons.
“That the affiant has personally known this informant for a period of at least six (6) months. That during this period of time, this same informant has supplied the affiant with information on numerous occasions concerning violations of Texas Controlled Substance Act. That upon checking this same informants information the affiant has proven the information to be correct and reliable.
“That within the last month this same informant has supplied information that has enabled the affiant to arrest four (4) narcotic dealers plus the seizure of a large quantity of marijuana.
“That this same informant has personally been in the above described apartment within the last eighteen (18) hours and at this time observed the above named ‘Suspected Parties’ using marijuana in the form of hand-rolled marijuana cigarettes. “That the marijuana being used was taken from a clear plastic baggie that was lying on a large brown coffee table that was located in front of the couch in the living room.
“That after receiving this information the affaint (sic) checked with Grin Rake, Security Guard at the Three Fountains Apartments. Mr. Rake advised the affi-ant that Gary Faulkner moved into Apartment # 117 on October 1, 1974. That Gary Faulkner is known by the affi-ant to be a drug user and a drug dealer. “Wherefore, I ask that a warrant to search for and seize the said controlled substance at the above described premises be issued in accordance with the law in such cases provided.
/s/ John R. Perry
“Sworn to and subscribed before me by John R. Perry on this the 6th day of December A.D. 1974.
/s/ Donald H. Lane Magistrate”

It is apparent from an examination of the warrant and the affidavit that they are both forms used by the Abilene Police Department. The warrant contains a number of grammatical errors which are practically inevitable in the use of forms. We previously condemned the practice of using form affidavits in Brown v. State, 437 S.W.2d 828 (Tex.Cr.App.1968), cert. denied, 383 U.S. 1089, 89 S.Ct. 850, 21 L.Ed.2d 782. This condemnation applies equally to the use of a form warrant.

The appellant contends that the warrant fails to describe what is to be seized as required by Art. 18.04 Tex.Code Crim.Proc.Ann. (Supp.1975). The warrant contains the command “ . . .to enter the suspected place described in said affidavit and seize same and bring it before me and to arrest and bring before me each suspected party named in said affidavit.” Appellant interprets this phrase as a command to enter the premises and seize the premises. Grammatically, the phrase does indeed order the seizure of the premises rather than an object in the premises. However, in interpreting affidavits and search warrants, magistrates and courts must do so in a common sense and realistic fashion and avoid hypertechnical analysis. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Powell v. State, 505 S.W.2d 585 (Tex.Cr.App.1974).

The warrant incorporates the affidavit by reference and the two documents were stapled together, making the affidavit part of the warrant. Phenix v. State, 488 S.W.2d 759 (Tex.Cr.App.1973); Chambers v. State, 508 S.W.2d 348 (Tex.Cr.App.1974). The affidavit states that the appellant was in possession of marihuana and that he lived at 2408 Buffalo Gap Road, Apartment # 117 of the Three Fountains Apartments in Abilene. It recites that the informant had seen the marihuana in one plastic baggie on the coffee table in the apartment.

The warrant commands a search of the suspected premises, which common sense tells us is the apartment described in the affidavit. Common sense also tells us that when the warrant orders the officer “to seize same” it is ordering the seizure of the contraband which formed the basis of the affidavit; that is, the marihuana.

Appellant’s ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: DAVIS, Commissioner.

text:
    Ex parte Alejandro CEVALLOS.
    No. 52242.
    Court of Criminal Appeals of Texas.
    June 9, 1976.
    Rehearing Denied June 30, 1976.

      Percy Foreman and Dick DeGuerin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order of the 174th District Court of Harris County in a habeas corpus proceeding in which appellant, who had been denied bond, sought to have the court set bail. The court found that appellant was entitled to be admitted to bail and same was set at $100,000.00.

Appellant stands charged by indictment with the offense of capital murder.

The Constitution of the State of Texas, Art. 1, See. 11, and Art. 1.07, V.A.C.C.P. both provide that all prisoners are entitled to bail except those charged with a capital offense “when the proof is evident.”

In the instant ease, no proof other than the indictment was offered by the State and the prosecutor stated to the court, “There is some question at this time as to whether or not we might prove all the elements [capital murder], Your Honor.”

The burden is on the State to establish that the proof is evident. Ex parte Wilson, 527 S.W.2d 310 (Tex.Cr.App.); Ex parte Sierra, 514 S.W.2d 760 (Tex.Cr.App.); Ex parte Forbes, 474 S.W.2d 690 (Tex.Cr.App.). Clearly, the State did not establish that the proof was evident in the instant case and the trial court was correct in concluding that appellant was entitled to bail.

Dianne Cevallos, wife of appellant, testified that she and appellant did not own any real property, that they operated a small carpet business and that she had no money left after paying the bills for living expenses for her and their ten children. Mrs. Cevallos estimated that by going to “His [appellant’s] brothers and sisters and friends” she could raise from “five hundred to a thousand dollars” with which to make bail.

While the ability or inability to make bail is a factor, it, alone, does not control the amount. Ex parte Runo, 535 S.W.2d 188 (Tex.Cr.App.); Ex parte Poindexter, 511 S.W.2d 529 (Tex.Cr.App.).

Under the evidence it would be a “useless thing” to require appellant to make a new showing in the trial court that he was unable to make a $100,000.00 bond. Ex parte Skinner, 496 S.W.2d 633 (Tex.Cr.App.), overruled Roberts v. State, 467 S.W.2d 475 (Tex.Cr.App.) and like cases which required such a showing in the trial court when such additional requirement would have been a “useless thing.”

Another factor to be considered in fixing bail is the nature of the offense, and this necessarily involves consideration of the punishment permitted under the law. Ex parte Runo, supra; Ex parte Taylor, 531 S.W.2d 335 (Tex.Cr.App.). While the State did not make a showing of “proof evident” so as to justify the court in denying bail, such failure on the part of the State at the habeas corpus hearing does not absolutely foreclose the possibility that the maximum punishment will be assessed at the trial on its merits.

While the record reflects that appellant is under two other bonds for offenses in Harris County in the amounts of $2,500.00 and $1,000.00, and a case is pending against him in Bexar County, no prior convictions are shown.

Under the circumstances appearing in the record before us, we find bail in the amount of $100,000.00 to be excessive. See Ex parte Redline, 529 S.W.2d 68 (Tex.Cr.App.); Ex parte Wilson, supra; Ex parte Sierra, supra.

Petitioner is admitted to bail in the amount of $25,000.00 in this cause.

It is so ordered.

Opinion approved by the Court.


author: DALLY, Commissioner.

text:
    Henry ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 51268.
    Court of Criminal Appeals of Texas.
    June 16, 1976.
    Steven F. Gamble, Longview, for appellant.
    Odis R. Hill, Dist. Atty., and Nathan Holt, Asst. Dist. Atty., Longview, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of aggravated robbery; punishment was assessed by the jury at imprisonment for 18 years.

This cause was dismissed in a per curiam opinion dated January 14, 1976, for the reason that the sentence had been improperly imposed without a waiver by the appellant prior to the expiration of the time allowed by law in which to file a motion for new trial or in arrest of judgment, leaving this Court, therefore, without jurisdiction to hear the appeal. By a first and second supplemental transcript it is shown that sentence was reimposed on January 30, 1976, and thereafter the appellant gave notice of appeal in a timely fashion on February 6, 1976. The appeal is reinstated.

Appellant challenges the sufficiency of the evidence and contends that the court erred in admitting evidence recovered as the result of an alleged unlawful search and seizure.

The record reflects that on December 4, 1974, Gerald Steed, the complaining witness, was operating a Citgo service station in Longview. At 9:10 p. m. he was in the station’s small, well-lit office when three males appeared. One of the men said, “This is a robbery”; Steed glanced over at them to see what their “authority” was; it was a small caliber pistol held against the leg of one of the men. Steed was told to “look down and turn around.” He was able to get a good look at two of the men before he was told to look down; he only saw the profile of the third man as that man moved past him to the back door. Standing by the back door, the third man told him, “Don’t look up, you M. F., or I’ll shoot you.”

After the assailants emptied the cash register of approximately $52, they ordered Steed, eyes still on the ground, out the back door and demanded his wallet. Steed started to hand his wallet to the men, then broke and ran. One shot was fired at him, but it missed and he kept running, then doubled back to another service station, called the police and reported the robbery along with general descriptions of the three men involved.

Mrs. May Joseph Anthony testified that at 9:30 p. m. on the evening the robbery occurred she had just returned from visiting her husband in the hospital when three men knocked at the door of her house, which was located a few blocks from the Citgo station; her son, Arthur Wade, asked who it was, then asked them to come in. The three men were identified as Paul Writt, Frederick Writt and the appellant. One of the three called a cab and then all three went into an adjoining bedroom to listen to music until the cab arrived. When the cab did arrive, one of the men went out and told the driver the party who had called the cab had left. A few minutes later Mrs. Anthony went outside to tell the driver that the men who had called the cab were still in her house. Upon exiting the house Mrs. Anthony discovered that the cab was no longer there, but that instead two policemen were standing in her yard.

Officers Jim Hays and Ken Canady were patrolling when they received the report of the robbery over their patrol car radio; they cruised in the area north of the Citgo station until they saw a cab. They stopped the cab and as a result of a conversation with the driver proceeded to an address which was that of Mrs. Anthony’s home. Shortly after they arrived at the house Mrs. Anthony came outside.

One of the officers asked her if anyone in her house had called a cab. She replied, “Yes, sir, three of them in here.” The officers then asked if they could go inside and look around; Mrs. Anthony told them to go ahead, that she “didn’t have anything to hide.” The officers looked in the small bedroom off the living room and there discovered the appellant sitting on a couch and the Writt brothers sitting on the bed. The three men fit the general description which had been broadcast over their radio; they were handcuffed and taken into custody in the living room of the house. One of the men claimed he lived at the house and another claimed kinship to the Anthonys, but these statements were denied by Mrs. Anthony. The officers then asked Mrs. Anthony if they could look around in that bedroom and she said they could. Under the edge of the bed where the Writt brothers had been seated Officer Hays found two leather jackets, one brown and one blue, and a black stocking cap. Under the mattress where Paul Writt was seated Officer Hays found a .22 caliber pistol containing five live rounds of ammunition and one spent shell; the pistol smelled strongly of having been fired a short time before. Mrs. Anthony told the officers that the items did not belong to anyone in her household.

When the three men were taken back to the Citgo station, Steed immediately recognized the jackets and the Writt brothers. It is unclear from the record whether he was able to identify the appellant at that time; however, at the trial he could not make a positive identification of the appellant, venturing only that he fit the general height and weight description he had given of the third man in the robbery whose face he had been unable to see before he was told to look at the ground.

At the police station officers searched the appellant and the Writt brothers. The appellant was found to have in his possession two live rounds of .22 caliber ammunition and $17; Frederick Writt and Paul Writt had $18 and $17, respectively, in their possession.

Officers Hays and Canady returned to Mrs. Anthony’s house where she gave them a green sweater and a gold stocking cap that she said also did not belong to her.

The appellant contends that the items seized in the search of the bedroom in Mrs. Anthony’s were the fruits of an illegal search and seizure. We disagree and overrule this contention.

The State introduced eight exhibits during the trial; five of those exhibits were seized by the officers at Mrs. Anthony’s home. Those exhibits were the .22 caliber pistol (#1); five live rounds and one spent shell from the pistol (# 2); a brown jacket (#3); a blue jacket (# 4); and a black stocking cap (# 5). The appellant withdrew his objection to the brown jacket and the black stocking cap; the court struck the blue jacket from evidence. Therefore, the appellant can complain only of the admission of the gun and ammunition.

The house searched belonged to Mrs. Anthony; she had the authority to consent to a search of her house. Mrs. Anthony initially told the officers that they could come into her home, that she had nothing to hide. Officer Hays stated that Mrs. Anthony gave her permission to “look around in the room” (where the appellant was found). Officer Canady testified that Officer Hays asked Mrs. Anthony for permission to “search the residence” and that she said it would be “all right.” Mrs. Anthony’s testimony conflicts with that of the officers to the extent that when she was asked if she had consented to a search she replied, “He didn’t tell me anything about searching. He asked me could he come in.”

It is said in McCormick and Ray, Texas Evidence, Sec. 21 at p. 2, that:

“It is orthodox that all questions affecting the admissibility of evidence belong to the province of the trial judge. It follows that, when the admissibility of a given piece of evidence depends upon some preliminary question of fact, the existence or nonexistence of that fact is to be determined by the judge.”

In the case before us the trial judge resolved the preliminary question of fact concerning a voluntary consent to search against the appellant and there is sufficient evidence to support his decision; the gun and ammunition were properly admitted in evidence. This ground of error is overruled.

The appellant next contends that the court erred in overruling his motion for an instructed verdict. He maintains that the evidence of guilt is insufficient. The case is a circumstantial one in that the complaining witness was unable to positively identify the appellant as one of the three men who robbed him. The circumstantial evidence of appellant’s guilt is as follows: (1) twenty minutes after the robbery the appellant was in the company of the two men positively identified as two of the robbers; (2) a small caliber pistol was exhibited and fired during the robbery; a .22 caliber pistol containing five live and one spent round, which had been fired a short time before, was found under the mattress where Paul Writt was sitting in Mrs. Anthony’s home; appellant was found to have two live .22 rounds in his possession; (3) appellant and the Writt brothers called for a cab and then sent it away; (4) approximately $52 was taken in the robbery; appellant was found to have $17 in his possession, while the Writt brothers had $17 and $18 — the sum, of course, being $52. We find the circumstantial evidence was sufficient to support the jury’s verdict. This ground of error is overruled.

The judgment is affirmed.


author: GREEN, Commissioner. ODOM, Judge ROBERTS, Judge

text:
    Larry Elton ATWOOD, Appellant, v. The STATE of Texas, Appellee.
    No. 51563.
    Court of Criminal Appeals of Texas.
    June 16, 1976.

      Ted Allmond (on appeal only), Galveston, for appellant.
    Jim Sharon Bearden, County Atty. and Patrick A. Clark, Asst. County Atty., Orange, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of attempted capital murder. Punishment was assessed at twenty-five years.

Considering the evidence in the light most favorable to the verdict, the record reveals that while Police Officer David Hamlett was questioning appellant concerning a traffic violation on July 7, 1974, and when he asked appellant to show his driver’s license, appellant drew a knife from his back pocket and stabbed officer Hamlett in the stomach. Hamlett underwent an operation due to his wound, and was hospitalized for seven days. The sufficiency of the evidence is not challenged.

The 29-year old appellant initially contends that the court reversibly erred in overruling his objection to the following argument of the prosecuting attorney at the punishment stage:

“[Mr. Bearden (State)]: I told you Monday morning that the State of Texas was opposed to probation in this case. If I felt that this was the type of case that deserved to be probated, then with the Court’s permission that could have been done. Ladies and Gentlemen, the Legislature did establish the right of probation and established it in the proper cases, probated deserved to be of young people, people who are seventeen and twenty-two, in that age bracket.
“MR. BAKER: Now, Your Honor, I—
“MR. BEARDEN: That isn’t any boy.
“MR. BAKER: I object to that. That is a gross misstatement of the law and I ask you to instruct the jury to completely disregard it.
“THE COURT: Your objection is overruled.
“MR. BAKER: Note our exception.”

Prior to the commencement of the trial, appellant filed his motion for probation in the event of a conviction, and the issue of probation was submitted by the court in its charge to the jury with proper instructions as provided in Art. 42.12, Secs. 3 and 3a, V.A.C.C.P. prior to the argument at the penalty stage of which complaint is made. There was no limitation as to age in the charge on probation.

Appellant specifically contends that the above argument is a misstatement of the law in that it would limit the right of the jury to grant probation to defendants within the age bracket of between seventeen and twenty-two years of age, and would require the approval of the prosecutor with permission of the court. We do not construe the argument as necessarily bearing the interpretation as stated in appellant’s contention. A more realistic construction is that the prosecuting attorney was stating his own views of when probation should be given. He argued that if he felt the case proper for probation, then with the court’s permission probation “could have done.” No objection was addressed to his giving his opinion. He continued, in rather indefinite language, to argue that the Legislature established the right of probation “in the proper cases,” and in the remainder of the sentence somewhat ungrammatically expressed his view of a proper ease by saying probation is deserved “of young people, people who are seventeen and twenty-two, in that age bracket.”

Appellant’s objection was limited to the argument being a “gross misstatement of the law.” Had the prosecutor stated that probation was limited to defendants of any particular age bracket, he would have been guilty of a “gross misstatement of the law.” See Art. 42.12, Secs. 3 and 3a, V.A.C.C.P. Although the argument may have been subject to objection, we do not find that it was subject to the objection made.

Additionally, probation was not applicable to the twenty-five year punishment assessed by the jury. The maximum punishment for which probation may be granted is ten years. Art. 42.12, Secs. 3, 3a, V.A.C. C.P. The jury was instructed by the court in its charge that it could recommend probation if the punishment assessed was ten years or less, and if it found that appellant had never been convicted of a felony.

In Alexander v. State, Tex.Cr.App., 482 S.W.2d 862, three cases against the defendant were tried before a jury at the same time. The defendant plead guilty and filed for probation in each case. On appeal, he complained that the trial court committed reversible error in that it incorrectly advised the defendant that the jury could recommend probation in each case. He contended that under Art. 42.12, Sec. 3a, V.A. C.C.P., “the jury was foreclosed as a matter of law from returning more than one probated sentence in the three robbery cases.”

In disposing of this contention, this Court said:

“The issue of probation was submitted to the jury in each case, and a verdict of 35 years was returned in each case. Therefore, the question is moot as to whether or not the jury could or would have granted probation.”

In the instant case, the jury clearly showed that it had no intention of granting probation when it assessed punishment at twenty-five years. Under the facts of this case, error, if any, in the above quoted argument of the prosecuting attorney was harmless, and is not cause for reversal. The ground of error is overruled.

In the second ground, appellant contends the court erred in overruling his motion for a mistrial directed at the prosecutor’s cross-examination of appellant at the punishment stage concerning charges filed against him for public intoxication and disturbing the peace, which charges did not result in convictions.

The evidence referred to in the argument under this ground of error is as follows:

“Q. Do you recall being arrested for being intoxicated on January the 14th, 1974?
“A. Well, now you see, they’ve got a bad habit — can I tell you—
“Q. Just answer ‘Yes’ or ‘No.’ Do you recall that incident?
“A. 1-7-74 yeah, I believe.
“Q. Do you recall an incident on 10-8-72 of being arrested for D.W.I.?
“A. Right. Well, now, that hasn’t ever gone to Court or anything.
“Q. Do you recall, also, fleeing from a police officer on that same occasion that you were arrested for D.W.I.?
“A. The fleeing from the police officer was right in my block. There was no fleeing to that.
“Q. Did you not pay a fine on that?
“A. Yeah, well, I paid a fine which shouldn’t have been paid.
“Q. But you did pay a fine, didn’t you?
“A. Well, yeah — generally—I just paid it, you know?
“Q. And by paying a fine, that admits your guilt, doesn’t it?
“A. Well, I was informed that I shouldn’t have paid it.
“Q. Okay. Let me ask you this: Do you recall also the public intoxication and disturbing the peace on 2-12-65?
“MR. BAKER: Your Honor, we object to all this line of questioning about misdemeanor offenses, and at this time move for a mistrial on the grounds that the District Attorney is inquiring into specific misdemeanors, which he is not entitled to according to the law.
“THE COURT: Your objection is overruled, and your request for a mistrial is denied.
“MR. BAKER: Note our exception.
“BY MR. BEARDEN:
“Q. Do you recall that incident?
“A. What, in ’65?
“Q. Yes, sir.
“A. I don’t believe so.”

No objection to the questions concerning the arrest for intoxication on January 14, 1974, the arrest for D.W.I. on October 8, 1972, or for fleeing from a police officer on that same date, was made in a timely fashion sufficient to preserve error. It is fundamental that a timely objection must be urged at the first opportunity. See Stutes v. State, Tex.Cr.App., 530 S.W.2d 309; Hunter v. State, Tex.Cr.App., 530 S.W.2d 573; Cooper v. State, Tex.Cr.App., 500 S.W.2d 837.

The objection finally made by appellant was a general objection “to all this line of questioning about misdemeanor offenses” and was not specifically directed to the “public intoxication and disturbing the peace on 2-12-65.” Additionally, appellant denied recalling any such incident. Reversible error is not presented.

The judgment is affirmed.

Opinion approved by the Court.

ODOM, Judge

(concurring in part and dissenting in part).

I concur in the affirmance of this case with respect to the first ground of error because I do not believe the argument complained of was of sufficient gravity to have deprived appellant of a fair trial. I do, however, take exception to the majority’s reliance on Alexander v. State, Tex.Cr.App., 482 S.W.2d 862, in its asserted alternative basis for disposing of this ground of error.

In Alexander, the defendant contended on appeal that the trial court had improperly admonished him with respect to the permissibility of jury-recommended probation in three jointly-tried, guilty plea cases. This issue of statutory construction was held moot because the punishment assessed in that case would have precluded such a recommendation in any event. Jury argument was not at issue there.

In Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230, the conviction was reversed for improper prosecutorial jury argument on the subject of probation even though the punishment assessed precluded a recommendation for probation by the jury. In two separate dissents, both by Judge Douglas, it was asserted that Alexander v. State, supra, should have been applied. The inapplicability of that case, however, should have been obvious. To hold that improper jury argument regarding probation is harmless or the issue moot whenever it achieves its purpose of securing punishment to a degree that precludes a recommendation of probation or otherwise diminishes consideration of the issue is to hold in effect that the very success of the improper argument renders it harmless. This internal inconsistency should be apparent to all.

Although I agree that the argument complained of in the instant case does not present reversible error, I do so not because of the punishment assessed but despite it.

Having made these comments, I concur in the affirmance of this conviction.

ROBERTS, Judge

(dissenting).

I concur in the opinion of my brother Odom only to the extent that he takes exception to the majority’s reliance upon Alexander v. State, 482 S.W.2d 862 (Tex.Cr.App.1972). That case is in fact distinguishable for the reasons stated in Judge Odom’s opinion.

However, I would hold that the argument constituted unsworn testimony outside the record and that reversal is required under the authority of Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973), and Lott v. State, 490 S.W.2d 600 (Tex.Cr.App.1973), two cases where this Court reversed because of prosecutors’ arguments which unfairly and illegally urged the jurors not to grant probation.

In Alejandro the prosecutor argued as a fact that the probation officer attached to the trial court already had 350 probationers under his supervision. The defendant’s objection to this argument was overruled. The prosecutor then argued that the probation officer was supposedly limited to 75 probationers and that there was a special unit in the Texas Department of Corrections for the first offenders, where the defendant could get a junior college education. The jury assessed punishment at 25 years, and this Court held that the argument required reversal.

In Lott, the prosecutor argued that there were different units in the Department of Corrections, including one for young offenders. He then argued that the defendant would be sent to the Ferguson Unit with other young offenders. Objections to these arguments were overruled. The jury assessed a term of ten years without probation; this Court reversed, holding that the error could not be labelled harmless.

The argument before us presents a stronger case for reversal than either Lott or Alejandro. Here, the prosecutor not only injected unsworn testimony in an obvious attempt to persuade the jury not to grant probation, he also completely misstated the law. Probation is clearly not limited to defendants within a given age group. See Article 42.12, Vernon’s Ann.C.C.P., especially Sections 3, 3a, and 3d(a). Such a misstatement could only have served to prejudice the rights of the appellant.

Nor can I agree that the prosecutor was merely expressing his view of probation and who should receive probation. The only reasonable interpretation of the prosecutor’s statement is that the Legislature had decided that only those between seventeen and twenty-two were entitled to probation.

Moreover, in this case, as in Lott and Alejandro, the appellant’s objection was overruled; this compounded the error. Cherry v. State, 507 S.W.2d 549 (Tex.Cr.App.1974).

Finally, this case does not present the problem common to Lott and Alejandro, where it was suggested that the prosecutor’s argument was invited; here, no such suggestion is made — nor from this record could it be.

I can only conclude that we are faced with the situation described in Alejandro, where this Court held:

“To receive the stamp of approval of this court, jury arguments need to be within the areas of: (1) summation of the evidence, e. g., Ward v. State, Tex.Cr.App., 474 S.W.2d 471; Andrews v. State, 150 Tex.Cr.R. 95, 199 S.W.2d 510; (2) reasonable deduction from the evidence, e. g., Frazier v. State, Tex.Cr.App., 480 S.W.2d 375; Archer v. State, Tex.Cr.App., 474 S.W.2d 484; (3) answer to argument of opposing counsel, e. g., Turner v. State, Tex.Cr.App., 482 S.W.2d 277; Miller v. State, Tex.Cr.App., 479 S.W.2d 670; and (4) plea for law enforcement, e. g., Minafee v. State, Tex.Cr.App., 482 S.W.2d 273; Langham v. State, Tex.Cr.App., 473 S.W.2d 515. The arguments that go beyond these areas too often place before the jury unsworn, and most times believable, testimony of the attorney.” 493 S.W.2d, at 231-232 (emphasis added).

The prosecutor’s argument in this case was not within the areas approved by this Court. It unquestionably placed damaging believable testimony before the jury, testimony which was both unsworn and untrue.

The judgment should be reversed.

      . As to the conviction for fleeing from an officer, this was admissible as a part of appellant’s criminal record at the punishment stage. See Article 37.07, Section 3(a), V.A.C.C.P.


text:
    Carolyn SERVANCE, Appellant, v. The STATE of Texas, Appellee.
    No. 51780.
    Court of Criminal Appeals of Texas.
    June 16, 1976.

      Robert T. Baskett, Dallas, for appellant.
    Henry Wade, Dist. Atty., Donald H. Fla-nary, Jr., Norman Kinne and Dan Pitzer, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for aggravated robbery. After the jury returned a verdict of guilty, punishment was assessed by the court at five years.

The indictment alleged that the offense occurred on or about March 25, 1975, and the record reflects that trial was in May, 1975.

All of appellant’s grounds of error are directed toward the indictment, the pertinent portion of which recites that appellant did unlawfully,

“then and there while in the course of committing theft and with the intent to obtain and maintain control of the property of C. N. Turner, hereinafter called ‘Complainant’, the said property being one suit, without the effective consent of the said complainant and with intent to deprive the said complainant of said property, did then and there by using and exhibiting a deadly weapon, to-wit: a knife, intentionally and knowingly threaten and place the said Terry Swear-ingen in fear of imminent bodily injury.”

Appellant contends “no valid conviction may be sustained under the indictment, as the person who was assaulted is not the person against whom the theft was perpetrated.”

Appellant was charged with the offense of aggravated robbery under the new Penal Code, and we find our opinion in Earl v. State, Tex.Cr.App., 514 S.W.2d 273, construing the pertinent provisions of the code to be dispositive of appellant’s contention. In Earl, it was stated:

“. . . the actual commission of the offense of theft is not prerequisite to commission of a robbery, nor need the victim of the theft or attempted theft and the victim of the robbery be the same.” See Reese v. State, Tex.Cr.App., 531 S.W.2d 638.

Appellant contends “the indictment is defective for failure to specifically allege the conduct constituting ‘in the course of committing theft.’ ”

In rejecting this contention in Earl, this Court stated:

“Although the proof will involve proving up a theft or attempted theft, the elements of the particular theft (see Chapter 31, and specifically Secs. 31.02 and 31.03, V.T.C.A. Penal Code) or attempted theft (see Sec. 15.01, V.T.C.A. Penal Code) need not be alleged in the indictment.”

Appellant contends “the indictment is defective for the manner in which it alleges the persons against whom the offense was committed.”

Appellant urges, “absent such specificity, the indictment could just as easily be interpreted as alleging that both Swearingen and Turner were the victims of the theft.”

As heretofore noted, the victim of the theft or attempted theft and the victim of the robbery need not be the same.

Appellant contends that the indictment is defective for failure to properly describe the property.

The property alleged in the indictment as having been taken was “one suit.”

No motion to quash was filed by appellant. The defect complained of by appellant relates simply to the convenience of appellant in making his defense and, by going to trial without raising any such objection, it is presumed that appellant found the indictment sufficient to his own satisfaction and waived any objection. American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598; Trevino v. State, Tex.Cr.App., 519 S.W.2d 864.

Appellant contends that the indictment is defective to allege ownership of the property.

We need not reach the question of whether the indictment alleged ownership of the property since our opinions in Earl v. State, supra, and Reese v. State, supra, held that such omission does not render a robbery indictment defective.

The judgment is affirmed.

Opinion approved by the Court.

      . See V.T.C.A. Penal Code, Secs. 29.01, 29.02 and 29.03.


author: DOUGLAS, Judge.

text:
    Derrick Jerome CONRAD, Appellant, v. The STATE of Texas, Appellee.
    No. 52412.
    Court of Criminal Appeals of Texas.
    June 16, 1976.

      Frank L. Supercinski, Longview, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the burglary of a building. Punishment was assessed at five years and a $100.00 fine, probated. A motion for new trial was overruled. Notice of appeal was given September 23, 1975.

Since then the case has quite a history concerning the record and counsel on appeal. Appellant was represented by the Hon. Frank L. Supercinski at the trial.

An application for leave to file for a writ of mandamus has been filed with the Clerk of this Court seeking to compel the Hon. Donald Carroll, Judge of the 7th Judicial District Court of Smith County, to furnish a record upon a pauper’s oath by appellant and to permit Supercinski to withdraw as counsel from the case because he was retained only for the trial of the case. A transcript has been forwarded to the Clerk of this Court, but there is no transcription of the court reporter’s notes.

A hearing was held on November 7,1975, on a motion by counsel to withdraw and a hearing on the question of indigency was held November 12, 1975. The evidence adduced at these hearings is before the Court.

Derrick Jerome Conrad testified that his parents had paid his counsel the attorney’s fees in two cases. His parents had put up some $16,500 in cash for bail in five or six cases. Appellant himself had paid none of the fees, but he had put up $375 on the bonds. He related that was attending Tyler Junior College with assistance of the “G.I. Bill.” The money he paid toward the bail was received from the government. He received $270 a month from the government while he attended school. He had been living with his mother “off and on.” He was told that the court reporter’s transcript of the proceedings would be approximately $1,000. He related that he had not hired counsel to appeal. It had been explained to him that he had to appeal the cases because he was facing other trials.

Maxine Conrad testified that she was the mother of appellant. She related that except for the amount of money put up by appellant for bail she or Mr. Conrad, appellant’s father, put up their property as security and borrowed money to put up for cash bonds and that they were paying interest on the loan at a bank in Longview.

The pauper’s oath appearing in the record recites that appellant was nineteen years of age and had an eighth grade formal education and had no training to do anything but common labor. He had passed his “GED” test and was a freshman at Tyler Junior College. The affidavit also recited that he had no funds; his parents were divorced and they had exhausted all their resources.

The application for leave to file for a writ of mandamus contains a copy of a contract dated August 29, 1975, retaining Supercin-ski to represent appellant in the trial of three cases in the trial court. It is signed by appellant and Arthur Conrad and counsel.

From the record it appears that appellant does not have funds of his own to pay for a transcription of the court reporter’s notes or counsel to represent him on appeal.

Parents of appellant are not legally bound to pay for the expenses of an appeal. Even though they put up a cash bail for appellant’s appearance, it is not shown that appellant has any way to use those funds.

Sometimes parents run out of funds and cannot help a child who has been charged with committing crimes. In some cases parents may have funds but will not furnish them for counsel and for the record. If they have money, this does not mean that a defendant is not indigent.

Trial judges are often faced with questions of indigency after bail has been made and after an attorney has been paid a fee. Even though there has been retained counsel at the trial, this does not bind counsel to furnish a record at his own expense or to handle the appeal without a fee. The question of indigency for appeal purposes is to be determined at the time for the appeal and not at the time of the trial.

In Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, the Supreme Court of the United States held that an indigent is entitled to assistance of counsel on appeal. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed.2d 891, held that an indigent is entitled to a free transcript on appeal. See Article 40.09, V.A.C.C.P. In Simmons v. State, Tex.Cr.App., 511 S.W.2d 308 (1974), this Court held that because the defendant made a $5,000 appeal bond, that fact alone did not warrant the trial court in refusing to appoint counsel for appellant on appeal in the absence of a hearing. See Foley v. State, Tex.Cr.App., 514 S.W.2d 449 (1974).

There are not standards set out for guidance to trial judges in determining the actual indigency of a defendant for the purposes of appeal. See Article 40.09(5), V.A.C.C.P. Each case must be decided upon its facts.

From this record the appeal must be abated so that the transcription of the court reporter’s notes may be made available to appellant as a pauper and so that counsel may be appointed for the appeal.

It is not for this Court but for the trial court to appoint counsel on appeal to be paid under the provisions of Article 26.-05, V.A.C.C.P.

Accordingly, the appeal should be abated so that appellant will be provided a record and counsel on appeal. After the approval of the record, the provisions of Art. 40.09, V.A.C.C.P., will apply.

Accordingly, the appeal is abated.

      . In view of the disposition of this case, it is not necessary to pass upon the question of mandamus.


author: DOUGLAS, Judge. ROBERTS, Judge

text:
    Henry Lee CAREY, Appellant, v. The STATE of Texas, Appellee.
    No. 51413.
    Court of Criminal Appeals of Texas.
    June 16, 1976.

      Bill Pedersen, Jr., Nacogdoches (court appointed on appeal only) for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of rape. Punishment was assessed by the jury at sixteen years. The prior per curiam opinion of affirmance, see 534 S.W.2d 344, is withdrawn.

The record reflects that the prosecutrix, a college student, was in her car on her way home at about midnight when she realized she was being followed. In an attempt to escape she made a turn down a road and suddenly came to a dead end. She got out of the car, ran through a ditch and went to a street. She was attempting to catch a ride. Appellant and another man picked her up. She thought that they were the ones who had been chasing her. They made racial slurs toward her. Appellant hit and stunned her. She fought him, but he succeeded in getting her blue jeans off and had sexual intercourse with her. Later the other man had sexual intercourse with her. She went to a home and reported the incident. She positively identified appellant as her first attacker.

In the sole ground of error, complaint is made because an improper question was asked of a reputation witness at the punishment stage of the trial when the following occurred:

“Q. (Prosecutor) Mr. Alders, was there • an incident sometime in August of
1974, wherein a pistol was exhibited?
“A. Yes, sir.
“Q. Were you present to — ”

The form of this question is improper because it implies the commission of another offense. Alders was called by the State after three of appellant’s character witnesses gave a negative response to the following question:

“Q. Have you heard about an incident that happened one week before August 27, 1974 where he threatened another fireman with a pistol?”

It is apparent that the State was attempting to prove through the witness Alders that the incident did in fact occur. However, as the record reflects, appellant’s objection was sustained by the court, but his motion for mistrial was overruled. The question thus presented is whether or not the error is so harmful that it cannot be cured by an instruction. The following instruction was given to the jury by the trial court:

“ . . . Now, the jury is instructed by the Court that you must not consider for any purpose whatsoever the matter which has been presented to you concerning this incident. That is the defendant being involved in a matter concerning threats with a pistol upon the testimony of the witness who just left the stand and you must not in any way consider or refer to the same in any manner in considering or deciding the issue now before you in this case, the punishment. You must proceed in this case as though that matter had not been brought to your attention. I know that each of you will do your best to proceed accordingly. . .

The appellant relies upon cases which he interprets as holding that a question’s harmfulness cannot be cured by an instruction. In Clark v. State, 500 S.W.2d 469 (Tex.Cr.App.1973), this Court held that while it was improper for the prosecutor to ask a witness at the punishment stage, “Are you saying that you are completely aware of this Defendant’s police record?” it was not so harmful as to require reversal because it did not amount to a positive assertion of another offense. In Ortiz v. State, 490 S.W.2d 594 (Tex.Cr.App.1973), this Court held the following question to be improper but curable, “Do you know Robert has been in trouble with the law before?” Likewise, in Longoria v. State, Tex.Cr.App., 507 S.W.2d 758, this Coúrt held that the reference to an extraneous offense by a witness in response to a question was curable by an instruction to the jury, citing Bolden v. State, 504 S.W.2d 418 (Tex.Cr.App.1974), and White v. State, 444 S.W.2d 921 (Tex.Cr.App.1969). In White, this Court stated:

“An error in asking an improper question or in admitting improper testimony may be generally cured or rendered harmless by a withdrawal of such testimony and an instruction to disregard the same except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds.”

In the instant case, counsel’s objection was specifically stated only after inquiry by the court. Just after the prosecutor stated, “Were you present to — ,” appellant’s counsel addressed the court, “Is this matter going to continue to be gone into, your Hon- or,” to which the court replied, “Is there an objection?” After some discussion, the trial court sustained the objection and instructed the jury as set out above. No harm was done to this appellant. The instruction was sufficient to cure the error. The broad statement in Parasco v. State, 168 Tex.Cr.R. 89, 323 S.W.2d 257 (1959), which is as follows:

“Whenever a question is asked which amounts to an assertion of fact and implies the commission of another offense, its harmfulness cannot be cured by the answer or failure to answer, or by any instruction which the court may give, and reversible error is reflected thereby.”

is overruled.

The instruction was sufficient to cure the error.

The motion for rehearing is overruled, and the judgment is again affirmed.

ROBERTS, Judge

(concurring).

Parasco v. State, 168 Tex.Cr.R. 89, 323 S.W.2d 257 (1959), containing the language overruled by the majority, is in the middle of a line of cases including McNaulty v. State, 138 Tex.Cr.R. 317, 135 S.W.2d 987 (1940); Wharton v. State, 157 Tex.Cr.R. 326, 248 S.W.2d 739 (1952); Webber v. State, 472 S.W.2d 136 (Tex.Cr.App.1971), and Smith v. State, 513 S.W.2d 823, 828 (Tex.Cr.App.1974). But the question complained of in that case was not of the kind involved in McNauIty, Wharton or this case. The opinion enlarged upon the rule stated in McNauIty, supra, upon which it was supposedly based. I can concur in the overruling of its language only on the understanding that the McNauIty reasoning, as it has been applied, is still valid.

The McNauIty Court reviewed the authorities at length and wrote about improper questions:

“Some may be harmless and some may be made harmless by a negative answer, but whenever the question is so stated that it amounts to an assertion of fact under the conditions here under discussion and it implies the commission of another offense, it may be said that its harmfulness cannot be cured by the answer and seldom by any instruction which the court is able to give the jury.”

Thus, in exceptional cases, an instruction to disregard can cure the error in the asking of such improper questions. The case at bar presents the limited exception to the above-stated rule. The objectionable question was not of the “have you heard” variety, but it was directed to a character witness and, taken in context, it did assert the misconduct as a fact. Furthermore, the court’s instruction to disregard was most thorough. I conclude that this case falls within the very limited exception to the rule stated in McNauIty, supra.

This Court’s unanimous opinion in Webber v. State, 472 S.W.2d 136 (Tex.Cr.App.1971) underscores the continued vitality of the rule stated in McNaulty, supra. The Court held that the mere asking of a question which asserted an extraneous shoplifting offense as a matter of fact was reversible error, even though the jury was instructed to disregard.

While continuing to adhere to the rule of McNaulty and Webber, I agree that this case presents an exception thereto, and that the language of Parasco is too broad to admit of the exception. I therefore concur in the opinion of the majority.

ODOM, J., joins in this concurrence.


author: CORNELIUS, Justice.

text:
    TWIN CITY FIRE INSURANCE COMPANY, Appellant, v. Clarence FOSTER, Appellee.
    No. 8360.
    Court of Civil Appeals of Texas, Texarkana.
    May 11, 1976.
    Rehearing Denied June 22, 1976.

      Howard Waldrop, David Hightower, Atchley, Russell, Waldrop & Hlavinka, Tex-arkana, for appellant.
    Frank L. Supercinski, Longview, for ap-pellee.
   CORNELIUS, Justice.

On February 9,1971, the Industrial Accident Board awarded compensation to appel-lee for temporary total and for permanent partial disability. An appeal was not taken. Subsequently, appellee filed an application to increase the initial award, and on February 7, 1972, the board issued its order declining to do so. No effective appeal was taken from that order. In December of 1973 appellee filed a second review application, and in response to it the board on September 26, 1974, vacated its previous orders and awarded appellee compensation for total and permanent disability. Appellant filed suit in the district court to set aside the last mentioned award. Based upon jury findings that the original award of February 9, 1971, was the result of a mistake, and also that a change in appel-lee’s condition had occurred after the board’s order of February 7,1972, judgment was rendered setting aside the board orders of February 9, 1971, and February 7, 1972, and awarding appellee compensation for total and permanent disability.

Tex.Rev.Civ.Stat.Ann. art. 8306, Sec. 12d provides in part as follows:

“Upon its own motion or upon the application of any person interested showing a change of condition, mistake or fraud, the Board at any time within the compensation period, may review any award or order, ending, diminishing or increasing compensation previously awarded, ... or change or revoke its previous order denying compensation, Provided, when such previous order has denied compensation, application to review same shall be made to the Board within twelve months after its entry, and not afterward. . . . ”

Appellant contends the orders of February 9, 1971, and February 7,1972, could not be set aside because (1) the order of February 7, 1972, which declined to change the initial award amounted to an order denying compensation, and the second application for review was not made within twelve months of that order as required by See. 12d; (2) there was no evidence or insufficient evidence that the initial award was the result of a “mistake” as contemplated by Sec. 12d; (3) if there was such a mistake, the refusal of the board on February 7, 1972, to find such a mistake was res judica-ta; (4) there was no evidence or insufficient evidence of any change in appellee’s condition; and (5) if there was a change in condition, there was no evidence that it was causally related to appellee’s accidental injury.

Neither of the review applications which were filed by appellee is shown in the record, but the orders of the board are before us. The order of February 7, 1972, recited that:

“On review of award of the Board dated 2-9-71, the Board finds that claimant has not undergone a change of condition, nor was fraud, mistake or error committed in award of 2-9-71. Therefore, the Board declines to change award dated 2-9-71, and no further action will be taken by this Board.”

The order of September 26, 1974, recited that:

“On review of Award dated 2-9-71 and Award dated 2-7-72, the Board finds that mistake and error was made in said awards. Therefore, Award dated 2-9-71 and Award dated 2-7-72 are set aside, cancelled, and held of no binding force and effect, and Award entered herein is a final Award of the Board.”

The mistake which appellee contends authorized the setting aside of the initial award was the failure of the Industrial Accident Board to have submitted to it, or to have for its consideration at the time the initial award was entered, certain information and particularly the medical report of Dr. Angel, which showed that subsequent to his injuries but prior to the initial award, appellee had undergone an operation in which a meningocele had been discovered and a spinal fusion was accomplished between the L-4 and S-l vertebrae. For a change of condition, appellee relied upon the fact that, after the order of February 7, 1972, he had lost control of his urinary functions and had suffered impairment of his sexual functions.

If the order of February 7, 1972, constituted an “order denying compensation,” appellee’s second review application came too late, and neither the Industrial Accident Board nor the district court would have been authorized to set that order aside. If the order was not an order denying compensation, the second review application was timely filed since it was filed within the true compensation period. Commercial Standard Ins. Co. v. Shank, 140 S.W.2d 273 (Tex.Civ.App. Austin 1940, writ dism’d jdgmt cor.). After careful consideration we are convinced the order of February 7, 1972, was not an order denying compensation within the intent and meaning of Sec. 12d of Art. 8306. The Legislature added the twelve month limitation period when Sec. 12d was amended to permit the review of orders denying compensation. See Historical Note, Tex.Rev.Civ.Stat.Ann. art. 8306, Sec. 12d, and Cooper v. United States Fidelity & Guaranty Co., 29 S.W.2d 971 (Tex.Comm’n App.1930, jdgmt adopted); Ibid; 33 S.W.2d 189 (Tex.Comm’n App. 1930). The reason for the addition of that limitation period appears to be clear. When compensation has been awarded, review applications must be filed within the compensation period. In that situation there is a built-in time limitation. But if compensation has not been awarded, there is no compensation period, and there would be no limitation if the twelve month provision had not been added. The initial order here awarded compensation and therefore had its own limitation time — the compensation period. The order of February 7, 1972, did not deny compensation. It simply declined to change the compensation which had been previously awarded. The limitation period applicable to the initial award was not cancelled and supplanted by the twelve month provision merely because the board at that time refused to change the initial award.

We next consider if it was proper to set aside the initial order on the grounds of mistake as indicated in the board’s action of September 26, 1974, and as found by the jury. To justify such action, the alleged mistake must have been one of fact, not merely an error of law or of judgment. General American Casualty Company v. Rosas, 275 S.W.2d 570 (Tex.Civ.App. Eastland 1955, writ ref’d n. r. e.); Commercial Standard Ins. Co. v. Shank, supra. Although there has been some confusion in the decisions as to what constitutes a mistake of fact for this purpose, the better rule seems to be that Sec. 12d was intended to authorize a review by the board of an order entered as the result of a mistake of fact as to the actual injuries received by the claimant, whether made by the employee, the insurer, or the board itself, irrespective and independent of any issue of fraud. Commercial Standard Ins. Co. v. Shank, supra; De Leon v. Western Casualty Co., 114 S.W.2d 274 (Tex.Civ.App. Fort Worth 1938, no writ). Cases from other jurisdictions also lend support for this conclusion. See for example Gosek v. Garmer And Stiles Company, 158 N.W.2d 731 (S.Ct.Iowa 1968); Jacobson v. Uptown Transfer & Storage Company, 268 Minn. 336, 129 N.W.2d 41 (1964); Guptill v. Conlon Const., 239 Minn. 185, 58 N.W.2d 264 (1953); Bare v. State Compensation Director, 148 W.Va. 760, 137 S.E.2d 435 (1964). Appellee was injured on April 29, 1970. He was seen by Drs. Toledo, Patterson, Semines, and DeSaussure. He was treated for low back pain and was fitted with a back brace. Apparently, the board had evidence of these facts when it made the initial award and was aware that appellee had previously had two operations. However, appellee’s evidence showed that in October of 1970 it became obvious that his condition was degenerating and he needed additional medical attention. He saw Dr. Angel for the first time in October of 1970. A myelogram was performed which revealed a fistula or break in the spinal meninges, a condition also known as a meningocele, which resulted in a leakage of spinal fluid. Dr. Angel referred appellee to a Dr. Soler and both doctors concluded that a new operation was necessary. The operation was performed and the meningo-cele was removed. Medical testimony showed that the area of the meningocele had not been explored in the previous operations. The disc at L-4 was bulging and was removed. Spinal fusion was accomplished between the vertebrae L-4 and S-l. Appellee had a long post operative recovery and was not released from the hospital until September of 1971 after the initial award of the board had been entered. After the operation appellee was totally and permanently disabled. There was medical testimony that the disability from the meningo-cele, disc removal and fusion was different and separate from the pain and disability resulting from the earlier problems with appellee’s back, and that the myelogram, the presence of the meningocele, the disc removal, and the spinal fusion all constituted serious medical evidence necessary to properly determine appellee’s injury and disability. Despite the significance of such information, there was testimony that the Industrial Accident Board did not check with Dr. Angel or Dr. Soler and never received their reports or medical findings. Thus, appellee’s evidence, which the jury had a right to believe, showed that the Industrial Accident Board did not have before it these significant reports and developments when it made its evaluation of appellee’s injury and entered its initial award. Considering the humanitarian purposes of the Workmen’s Compensation Act and its manifest intent to award compensation according to the true injuries received by a claimant, we believe these facts justified a finding of a mistake of such character as permitted the review and modification of the initial award.

Appellant insists that if these facts constituted a mistake, the mistake was known when appellee’s first review application was made, and the board’s refusal to find or act upon such mistake by its order of February 7, 1972, constituted res judicata of the issue and prevented a later review. But the record here does not reveal what the board had before it or what it considered when it entertained appellee’s first review application and entered its order of February 7, 1972. If on the first review application the mistake which is now claimed was not known, the order of February 7,1972, could not have been res judicata of that issue. State of Texas v. Standard, 414 S.W.2d 148 (Tex.1967). Where an adjudication is claimed to be a bar but does not itself reveal the issues on which it was rendered, it is incumbent upon the one claiming identity of issues to prove the issue in controversy was actually adjudicated in the former proceeding. Otherwise, the former adjudication will not be received as a bar, and the matter at issue is open to a new contention. Cook v. Burnley, 45 Tex. 97 (1876); Martin v. Weyman, 26 Tex. 460 (1863); Schneider-Davis Co. v. Brown, 46 S.W. 108 (Tex.Civ.App.1898, writ ref’d); Chalmers v. Kimbrough, 227 S.W.2d 615 (Tex.Civ.App. Fort Worth 1950, no writ); Adcock v. Schweizer, 190 S.W.2d 705 (Tex.Civ.App. Dallas 1945), rev’d on other grounds, 145 Tex. 64, 194 S.W.2d 549 (1946); Davis v. Davis, 141 Tex. 613, 175 S.W.2d 226 (1943); Bray v. First Nat. Bank Of Mertzon, 10 S.W.2d 235 (Tex.Civ.App. Austin 1928, writ dism’d); Providence-Washington Ins. Co. v. Owens, 210 S.W. 558 (Tex.Civ.App. Fort Worth 1919, no writ); Zarate v. Unknown Heirs of Zarate, 204 S.W. 697 (Tex.Civ.App. San Antonio 1918, no writ); 34 Tex.Jur.2d, Judgments, Sec. 555, pp. 662-663. Appellant relied upon the bar of res judicata and had the burden to show an identity of issues. As it did not do so, the claim of res judicata failed.

Appellant also contends there was no evidence or insufficient evidence that appellee underwent a change of condition subsequent to the board’s order of February 7, 1972. We find there was sufficient evidence of such a change of condition, but we agree with appellant that the record contains no evidence that such change was causally related to appellee’s compensable injury. Nevertheless, the existence of the mistake noted previously was sufficient to support the trial court’s judgment, and it will therefore be affirmed.

We have considered appellee’s counterpoint and it is respectfully overruled.

The judgment of the trial court is affirmed.

      . Compare Commercial Casualty Ins. Co. v. Hilton, 126 Tex. 497, 87 S.W.2d 1081 (1935, jdgmt adopted).

      . See Independence Indemnity Co. v. White, 27 S.W.2d 529 (Tex.Comm’n App.1930, jdgmt adopted).