text:
    John B. GENTRY, Sr., et ux., Petitioners, v. CREDIT PLAN CORPORATION OF HOUSTON et al., Respondents.
    No. B-4999.
    Supreme Court of Texas.
    Sept. 24, 1975.
    Rehearing Denied Nov. 5, 1975.

      Momberger & Momberger, Edwin H. Momberger, and Marie W. Momberger, Houston, for petitioners.
    Bernard & Bernard, D. R. Bernard, Houston, for respondents.
   WALKER, Justice.

This is an unreasonable collection efforts case. The events giving rise to the suit occurred on or about February 7, 1969. Shortly thereafter John B. Gentry and wife, Eileen Gentry, plaintiffs, filed suit against Joe Assad and Credit Plan Corporation of Houston. Colonial Finance Corporation was joined as a defendant on May 17, 1972, more than two years after the alleged cause of action accrued, and Kelcor Corporation was joined as a defendant about eight months later. Colonial was merged into Kelcor during the pendency of the suit, and it is undisputed that Kelcor assumed all of Colonial’s liabilities. The questions to be decided are: (1) whether Credit Plan was the alter ego of Colonial; and (2) if so, whether the suit against Credit Plan stopped the running of the statute of limitations in favor of Colonial.

The trial court rendered judgment on the verdict and on the basis of its conclusion that Credit Plan was, as a matter of law, the alter ego of Colonial and Kelcor. Plaintiffs were given judgment against Credit Plan, Colonial, Kelcor and Assad, jointly and severally, for actual damages of $69,747.35 and exemplary damages in the amount of $69,447.35. The Court of Civil Appeals concluded that the suit against Colonial and Kelcor is barred by limitation. It reversed the judgment of the trial court as to those defendants and rendered judgment that plaintiffs take nothing against Colonial and Kelcor. The judgment of the trial court against Assad and Credit Plan was affirmed. 516 S.W.2d 471. John B. Gentry died after oral argument here. A suggestion of death has been filed, and the case will proceed to judgment as provided in Rule 369a, T.R.C.P. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

By their Point No. 73 in the Court of Civil Appeals, Colonial and Keleor contended that there is no evidence to warrant the conclusion that Credit Plan was the alter ego of Colonial. The Court of Civil Appeals did not reach that question, but under our view of the case it is necessary for us to do so. We consider it first.

A subsidiary corporation will not be regarded as the alter ego of its parent merely because of stock ownership, a duplication of some or all of the directors or officers, or an exercise of the control that stock ownership gives to stockholders. On the other hand where management and operations are assimilated to the extent that the subsidiary is simply a name or conduit through which the parent conducts its business, the corporate fiction may be disregarded to prevent fraud or injustice. Unlike a suit for breach of contract, the plaintiff in a tort case does not have the burden of justifying a recovery against the parent when he willingly contracted with the subsidiary. The problem in such a case is essentially one of allocating the loss. It is not necessary to establish fraud, and the financial strength or weakness of the subsidiary is an important consideration. See Bell Oil & Gas Co. v. Allied Chemical Corp., Tex.Sup., 431 S.W.2d 336; First Nat. Bank v. Gamble, 134 Tex. 112, 132 S.W.2d 100; 18 Am.Jur.2d, Corporations § 17; Douglas and Shanks, Insulation from Liability Through Subsidiary Corporations, 39 Yale L.J. 193; Ballentine, Separate Entity of Parent and Subsidiary Corporations, 14 Calif.L.Rev. 12.

Colonial caused its President, Secretary, and Treasurer to incorporate Credit Plan in 1963. The capital stock consists of 25,000 shares of the par value of $1.00 per share. Colonial became the owner of 22,500 shares, and the remaining 2,500 shares were registered in the name of the person who was manager at the time of Credit Plan’s office in Houston. The manager executed a note for $2,500.00 to Colonial, and Colonial reserved the right, which was printed on the stock certificate, to repurchase the stock when the owner resigned or retired as manager. Upon termination of the manager’s employment, the stock certificate and note were cancelled and the stock was registered in the name of the new manager, who executed his note for $2,500.00 to Colonial. This occurred several times, and none of the notes was ever paid. The manager never attended a stockholders’ meeting, and it is not clear from the record that a meeting of the stockholders was ever held.

Colonial owned a number of other subsidiaries, including Credit Plan, Family Plan Corporation, Mutual Plan Corporation, Kelly Acceptance Corporation, and at least two others that remain unnamed here to avoid confusion. The same persons were officers and directors of Colonial and Credit Plan. Kelly Acceptance is a management corporation that was organized in 1963. All of its stock was owned by Colonial, and Kelly Acceptance performed management functions for all of the Colonial subsidiaries. Kelly Acceptance maintained the books, records and accounts of Colonial and Credit Plan.

Colonial and its subsidiaries maintained the same corporate office and had the same registered agent. The directors of Colonial and Credit Plan met at the same time and place. Colonial and Credit Plan were engaged in the same business, their charters containing the same or similar purpose clauses. Their business consisted of making loans on the security of automobiles, furniture and other personal property, and their only income was from insurance premiums and interest on loans. A single loan office was operated in the name of Credit Plan, and another office was operated in the name of each of the other subsidiaries except Kelly Acceptance. In most instances the offices were in different cities. Managers of the several offices were interviewed, evaluated and selected by C. K. Wingo, who was President of Colonial and of each subsidiary. From time to time managers were transferred from one loan office to another, and in at least one instance two of the loan offices were combined. President Wingo received no salary or reimbursement of expenses from Credit Plan.

Money with which to do business was borrowed at different times from banks and was also obtained by the sale of Colonial’s debentures. More recently the money was obtained from Walter E. Heller & Co. of Chicago. The loan papers of the several subsidiaries were discounted with Heller. Colonial and all subsidiaries guaranteed payment of all notes transferred to Heller. Money obtained from the sale of loans by Colonial and its subsidiaries to Heller was sent to Kelly Acceptance, which then apparently made advances to Credit Plan and other subsidiaries as required. Kelly Acceptance maintained a ledger showing “Amounts due from Credit Plan Cor. of Houston.” This ledger contained three columns, which evidently reflected amounts advanced, amounts repaid, and a running balance. On the ledger sheet in the record, the balance varies from slightly over $700,-000.00 to more than $950,000.00.

Consolidated tax returns were filed for Colonial and its subsidiaries, and the record contains consolidated balance sheets covering the operations of the parent company and its subsidiaries. According to these consolidated balance sheets, Colonial and its subsidiaries together had net assets of more than $500,000.00 during the years 1968 to 1972. However, Credit Plan has been operating at a deficit continuously since 1964. The value of its stock at the close of fiscal year 1971 was “a deficit in retained earnings of $118,794.00.” Its deficit on June 30, 1969, shortly after the cause of action in the present case accrued, was more than $80,-000.00. Apparently no attempt has been made to enforce the statutory requirement that each Texas loan licensee maintain net assets of at least $25,000.00, and Credit Plan’s license has been renewed annually. See Art. 5069-3.05, V.A.C.S. Neither Credit Plan nor Colonial carried liability insurance.

This suit was filed in 1969. During that same year the stockholders of Colonial exchanged their stock for an equal number of shares of Kelcor Corporation, and the officers and directors of Colonial became officers and directors of Kelcor. Colonial eventually merged into Kelcor in 1973, and all of Colonial’s liabilities were assumed by Kel-cor.

It appears from the minutes of the meetings of Colonial’s directors that the subsidiaries were regarded not as separate business entities but as simply offices of the parent company. An executive committee was appointed to meet every 90 days and “discuss business of Colonial Finance Corp. and its subsidiaries.” President Wingo was granted a bonus of ten percent of the income of each corporation, the bonus being allocated between the companies on the basis of their respective net incomes. The directors of the parent company also increased President Wingo’s salary, declared cash and stock dividends, approved official expenses and financial reports, appointed auditors, learned of changes of personnel in the several offices, heard reports from the President concerning arrangements for lines of credit, and were advised that the executive committee had unanimously approved a profit sharing plan for the employees of Colonial and its subsidiaries. After the merger, the directors of Kelcor learned that certain managers had been changed, and that the office of a subsidiary had been consolidated with that of Credit Plan in Houston. On one occasion they approved a new employee insurance contract as well as certain health and accident coverage for the officers of Kelcor and its subsidiaries. In some instances there were joint meetings of the directors of Kelcor and its subsidiaries.

By way of contrast, the minutes of the meetings of Credit Plan’s directors deal almost entirely with formalities. At the outset an application for a license under the Texas Loan Act was authorized, a statutory agent was appointed, and the president was authorized to handle bank loans. For many years thereafter, the only action taken was to discuss the “progress” of Credit Plan and consider a financial report submitted by accountants.

It might be helpful to have additional facts concerning the operations and records of Colonial, Credit Plan and Kelly Acceptance. From our study of the record, however, we are inclined to believe that the absence of certain details is probably due to the reluctance of defendants and their officers to supply information rather than to any lack of diligence on the part of counsel for plaintiffs. Be that as it may, all of the evidence points to one conclusion: that Credit Plan was operated and used by Colo-nial not as a separate entity but simply as a name under which Colonial did its business. There is no evidence to the contrary. In view of these circumstances and Credit Plan’s financial situation when the suit arose and at the present time, we agree with the trial court that Credit Plan was, as a matter of law, the alter ego of Colonial.

In holding that the suit against Colonial and Kelcor is nevertheless barred by the two-year statute of limitations, the Court of Civil Appeals reasoned that Credit Plan, Colonial and Kelcor are to be regarded as entirely different persons. It applied the general rule that the filing of suit against one person does not stop the running of limitations in favor of another person who is later joined by filing an amended petition. The statute continues to run in favor of the latter until the filing of the amendment. See First State Bank & Tr. Co. v. Ramirez, 133 Tex. 178, 126 S.W.2d 16; 51 Am.Jur.2d, Limitation of Actions §§ 272 et seq.; Annotation, 8 A.L.R.2d 6, 112. The intermediate court regarded it as immaterial that Colonial was using Credit Plan as its alter ego. It observed that a plaintiff does not, by suing an agent or employee, toll the running of limitations in favor of the principal or employer.

The author of the annotation in 38 A.L.R.3d 1102 points out that the courts have developed a number of formal rules or theories for holding a parent corporation liable for the acts of its subsidiary. These rules or theories are rarely, if ever, represented as exclusive in application. They include agency, estoppel, alter ego, instrumentality and identity. The author further notes that there is little difference in the thrust of the alter ego, instrumentality and identity theories. Agency and estoppel differ from the other three, however, in that: (1) they involve principles of law well developed outside the field of disregard of corporate entity, and (2) the application of either the agency or the estoppel theory does not necessarily involve any disregard of the corporate entity. See 38 A.L.R.3d 1102, 1110 et seq.

The purpose of the court in cases of this nature is to prevent use of the corporate entity as a cloak for fraud or illegality or to work an injustice,'and that purpose should not be thwarted by adherence to any particular theory of liability. Colonial was in fact engaged in business in the name of Credit Plan, and we hold that they are to be regarded as identical for the purpose of determining whether the present suit is barred by limitation. The filing of suit against Credit Plan stopped the running of the statute in favor of Colonial. See Mirabito v. San Francisco Dairy Co., 8 Cal.App.2d 54, 47 P.2d 530. The suit against Colonial was not barred when it merged into Kelcor, and Kelcor was joined as a defendant shortly after plaintiffs’ cause of action against it arose. It follows that the suit against Colonial and Kelcor is not barred by limitation.

Credit Plan and Assad filed an application for writ of error raising a number of questions that were decided against them by the Court of Civil Appeals. Their application was granted because of the granting of the Gentry application. After carefully considering all points of error presented there, it is our opinion that none warrants a reversal of the trial court’s judgment.

The judgment of the Court of Civil Appeals is reversed, and that of the trial court is affirmed.

      . Two findings of the jury bearing on the alter ego issue were favorable to plaintiffs. These findings are not mentioned in the opinion, because their meaning is not entirely clear to us and also because we agree with the trial court that on the present record Credit Plan was the alter ego of Colonial as a matter of law.

      . We are not suggesting that under our practice a defendant may be added by the trial court after a judgment has become final on appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AMERICAN PAPER STOCK COMPANY, Petitioner, v. L. M. HOWARD, Respondent.
    No. B-5361.
    Supreme Court of Texas.
    Oct. 15, 1975.
    Rehearing Denied Nov. 5, 1975.
    Brown, Crowley, Simon & Peebles, M. Hendricks Brown, Fort Worth, for petitioner.
    Herrick & Ward, Richard E. Ward, Fort Worth, for respondent.
   PER CURIAM.

This is a personal injury action arising from a vehicle collision. Trial was before a jury, which found all special issues favorably to plaintiff L. M. Howard. The trial court granted defendant American Paper Stock Company’s motion for judgment non obstante veredicto and entered judgment that plaintiff take nothing. The court of civil appeals reversed and rendered judgment for plaintiff. 523 S.W.2d 744.

The jury verdict, finding damages totaling $109,072.06, was returned on July 24, 1974. The defendant’s motion for judgment n. o. v. was granted, and the trial court’s judgment for the defendant was rendered on September 12, 1974. The judgment of the court of civil appeals was for $109,072.06 with interest thereon of six percent per annum from July 24,1974, the date of the verdict. The court of civil appeals erred in awarding interest from the date of the verdict in that such action is contrary to Rule 434, Texas Rules of Civil Procedure. The judgment which the trial court should have rendered in this case is for $109,072.06 with interest at six percent per annum from September 12, 1974, the date of the trial court’s judgment.

Rule 434, Texas Rules of Civil Procedure, provides:

“When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered . . . .”

Rule 434 does not conflict with Article 5069-1.05, Texas Revised Civil Statutes Annotated. That article provides:

“All judgments of the courts of this State shall bear interest at the rate of six percent per annum from and after the date of the judgment . . . .”

The “judgment” here referred to is the judgment of the trial court; since in this case the trial court’s judgment was erroneous, the judgment of the court of civil appeals must take its place and plaintiff is entitled to interest from the date of the erroneous judgment. See D. C. Hall Transport, Inc. v. Hard, 355 S.W.2d 257 (Tex.Civ.App.—Fort Worth), writ ref’d n. r. e. per curiam, 163 Tex. 504, 358 S.W.2d 117 (1962).

We have considered all other points of error urged by petitioner and find no merit therein. Pursuant to Rule 483, Texas Rules of Civil Procedure, the application for writ of error is granted and, without hearing argument, the judgment of the court of civil appeals is reformed as follows: interest on the judgment of six percent per annum shall run from September 12, 1974; and as reformed, is affirmed.


text:
    Maxeen MITCHELL et vir, Petitioners, v. BAKER HOTEL OF DALLAS, INC., Respondent.
    No. B-5385.
    Supreme Court of Texas.
    Oct. 15, 1975.

      McGuire, Levy & Collins, John E. Collins, Irving, for petitioners.
    Burford, Ryburn & Ford, Wayne Pearson and J. Dan Bohannan, Dallas, for respondent.
   PER CURIAM.

Maxeen Mitchell brought this suit against the Baker Hotel of Dallas to recover damages for injuries suffered when she slipped and fell in the hotel ballroom. The trial court rendered summary judgment in favor of the defendant, Baker Hotel, and the court of civil appeals affirmed. 523 S.W.2d 316.

The plaintiff’s cause of action is based upon her allegations and deposition testimony to the effect that the floor was slick; that it appeared to be waxed and slippery “more so than I would ordinarily expect from a hardwood floor”; that when she fell both feet slipped out from under her; that five other people fell on the floor that same night, although in an area other than where she fell; that “afterwards I found a buildup of material on the bottom of my shoes that I identified as a wax substance.”

The basis of the summary judgment is that the defendants’ uncontradicted summary judgment evidence successfully refuted the plaintiff’s allegations of negligence. The deposition testimony of the defendants’ employees was to the effect that the floor had not been waxed between April and July when the fall occurred; no oil or additional wax had been applied between waxes; that the ballroom was swept prior to the banquet; and that the floor was not over waxed or unduly slick. The defendants’ personnel director testified she inspected the floor the following morning and that it was in a normal condition.

The movant for a summary judgment has the burden of establishing that there exists no material issue of fact and that the movant is entitled to judgment as a matter of law. The summary judgment evidence here does not establish as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action; therefore, it will not support a summary judgment for the defendant. Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972); Farley v. Prudential Insurance Company, 480 S.W.2d 176 (Tex.1972); Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41 (Tex.1965). The decision of the court of civil appeals is in conflict with this Court’s opinions cited herein.

Pursuant to Texas Rules of Civil Procedure, Rule 483, we grant writ of error and, without hearing oral argument, reverse the judgments of the district court and court of civil appeals, and remand the cause to the district court for trial.


author: DAVIS, Commissioner. MORRISON, Judge ONION, Presiding Judge.

text:
    Karl F. ABERCROMBIE, Appellant, v. The STATE of Texas, Appellee. Dennis G. DEAN, Appellant, v. STATE of Texas, Appellee.
    Nos. 48334, 48335.
    Court of Criminal Appeals of Texas.
    July 24, 1974.
    Rehearing Denied Nov. 5, 1975.
    Opinion in Rehearing Oct. 15, 1975.

      Joe Slator Petsch, Del Rio, for Abercrom-bie.
    Arturo C. Gonzalez, Del Rio, for Dean.
    John F. Pettit, Dist. Atty., Edwin E. Springer, Asst. Dist. Atty., Del Rio, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeals are taken from convictions for possession of marihuana. After verdicts of guilty were returned by the jury, punishment was assessed at seven years for appellant Dean and three years for appellant Abercrombie.

Appellants contend that “the search warrant issued by the magistrate was not based upon probable cause because the reliability, if any, of the undisclosed informant was not established in the affidavit.”

The record reflects that officers, armed with a search warrant, conducted a search in a residence located at 208½ East Broadway Street in Del Rio on November 25, 1972. Approximately one pound of marihuana was found in the four-room dwelling. In addition, a quantity of marihuana was found in a commode in the bathroom. Officer Gardner testified he saw Abercrombie run in the bathroom with something in his hand and reappear seconds later with his hands empty. Evidence of marihuana was found throughout the dwelling. Particles of marihuana were found in clothing and various containers and vessels. Abercrom-bie and one Jerry Wayne Davis were present in the apartment when the search was conducted. Dean, a lessee of the residence, was arrested shortly thereafter while driving a vehicle belonging to Abercrombie.

A hearing was held on appellants’ motion to suppress evidence seized in the search and the court’s action in overruling same gives rise to appellants’ contention.

Appellants urge that the allegations of the affidavit made to support the search warrant are insufficient to meet the second prong of the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, requiring that the affidavit state circumstances from which it may be determined that the unnamed informer was credible and reliable.

The pertinent portion of the affidavit of Officer Gardner reads:

“MY BELIEF OF THE AFORESAID STATEMENT IS BASED ON THE FOLLOWING FACTS:
“A reliable and credible person, hereinafter sometimes called informant, the identity of such reliable and credible person and such informant I wish not to disclose, has stated to me on this date 25 November 1972, he found two plastic bags of green plant substance believed by him to be marijuana in his yard adjacent to 2O8V2 East Broadway at approximately 3:00 AM 24 November 1972. He kept the two plastic bags of green plant substance in his possession until approximately 9:00 AM the same date and at which time he went to 208½ East Broadway and asked one white male approximately 20 to 25 years of age, tall and heavy build and having dark hair and a dark bushy beard, later identified by a photograph as a suspected narcotic user being one Dennis G. Dean. At such time the informant asked the said Dennis G. Dean if he had lost something and Dean’s reply was yes. The dogs found it and drug (sic) it out into the yard and at this time the informant returned the two plastic bags of green plant substance to the said Dennis G. Dean and he did then and there carry the two plastic bags of green plant substance into the house at 208½ East Broadway. The informant states that in the past he had handled and smoked marijuana and he further states the contents of the two plastic bags to be of the same substance that he handled and smoked in the past being marijuana. It is believed at this time the green plant substance is concealed in the house at 208½ East Broadway Street.”

The State cites Adair v. State, 482 S.W.2d 247, Tex.Cr.App. for the proposition that an allegation of prior reliability is not necessary if the underlying circumstances reflect reliability. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 73. It should be noted, however, that the affidavit in Adair v. State, supra, went further than merely stating that informer was “credible and reliable” and recited that the informer lacked a criminal record, had a favorable reputation in the neighborhood and was well thought of by associates.

It appears that the State is urging that the unnamed informant’s credibility was confirmed by verifying the information he furnished. In Gonzales v. Beto, 425 F.2d 963 (5th Cir. 1970), it was stated that an informer’s tip can be significantly buttressed if “independent observations by the affiant corroborate sufficient details of the tip (whether suspicious or not) to negate the possibility that the informer ‘fabri-eat[ed] his report out of the whole cloth.’ ” See Polanco v. State, 475 S.W.2d 763, Tex.Cr.App. and cases cited therein. If such corroboration occurred in the instant case the affidavit fails to recite such verification of the informer’s tips by affiant. In determining the sufficiency of a hearsay affidavit to reflect probable cause for the issuance of a search warrant, we are bound by the four corners thereof. Adair v. State, supra; Polanco v. State, supra; Kemp v. State, 464 S.W.2d 141, 147.

The State cites United States v. Harris, supra, for the proposition that the informant’s declaration against penal interest would tend to prove the reliability and credibility of the informant. The affidavit in the instant case recites: “The informant states that in the past he had handled and smoked marijuana and he further states the contents of the two plastic bags to be of the same substance that he had handled and smoked in the past.” In Harris, the Supreme Court said, “Concededly, admissions of crime do not always lend credibility to contemporaneous or later accusations of another.” The affidavit in Harris recites “that the informant had purchased illicit whiskey from the residence described, for a period exceeding two years, most recently within two weeks.” The Supreme Court noted this “was plainly a declaration against interest since it could readily warrant a prosecution and could sustain a conviction against the informant himself.” In the instant case the affidavit reflects that informant stated “in the past he had handled and smoked marijuana” without divulging when or where same may have occurred. It is highly questionable if such statement tended to prove the credibility of the informant. Clearly such statement, itself and without more, does not furnish sufficient underlying circumstances to warrant a finding that the unnamed informer was credible and reliable.

We are mindful that affidavits for search warrants are normally drafted in the midst and haste of a criminal investigation, and adhere to the teachings of the United States Supreme Court in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, that they must be interpreted “in a commonsense and realistic fashion.” See Cummins v. State, 478 S.W.2d 452, Tex.Cr.App. Nonetheless, in our efforts to avoid technical and strict interpretation, we must be ever mindful that we stay within the boundaries of constitutional requirements. See Bridger v. State, 503 S.W.2d 801, Tex.Cr.App.

We conclude that the affidavit based upon hearsay information did not meet the second requirement of Aguilar concerning the credibility of the informer and the reliability of his information.

The judgments are reversed and the causes remanded.

Opinion approved by the Court.

MORRISON, Judge

(dissenting).

From the four corners of the affidavit we learn the following:

The informant admitted that in the past he had handled and smoked marihuana. The affidavit also states that the informant stated that he had found marihuana in his yard and took the same into his possession. Such possession was unlawful. Article 725b, Sec. 2(a), V.A.P.C. The informant also stated that he later delivered the marihuana to the appellant Dean. Therefore, the affiant had sworn that the informant admitted to him that he possessed and then delivered the marihuana in question. This is clearly a declaration against penal interest and satisfies the requirements of U. S. v. Harris, supra. See also Aranda v. State, 506 S.W.2d 221, Tex.Cr.App.

It is also important that the affidavit reflects that the informer gave affiant a specific physical description of the appellant Dean, who was, according to the affidavit, “. . . identified as a suspected narcotic user . . . ” This affiant has thus sworn to facts which are tantamount to “a policeman’s knowledge of a suspect’s reputation”, in Harris, supra.

I am also of the opinion that Adair v. State, 482 S.W.2d 247, Tex.Cr.App. is authority supporting this search warrant.

DOUGLAS, J., joins.

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

On the State’s motion for rehearing we have carefully reconsidered the contention of the appellants that “the search warrant issued by the magistrate was not based upon probable cause because the reliability, if any, of the undisclosed informant was not established in the affidavit.”

Appellants urge the court erred in overruling their motion to suppress since the affidavit in support of the search warrant was insufficient to meet the second prong of the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

In Aguilar, the Supreme Court wrote:

“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825 [11 L.Ed.2d 887], was ‘credible’ or his information ‘reliable.’ ” (Emphasis Supplied) 378 U.S. at 114-115, 84 S.Ct. at 1514.

With this in mind, we consider the pertinent portion of the affidavit of Officer Gardner:

“MY BELIEF OF THE AFORESAID STATEMENT IS BASED ON THE FOLLOWING FACTS:
“A reliable and credible person, hereinafter sometimes called informant, the identity of such reliable and credible person and such informant I wish not to disclose, has stated to me on this date 25 November 1972, he found two plastic bags of green plant substance believed by him to be marijuana in his yard adjacent to 2O8V2 East Broadway at approximately 3:00 AM 24 November 1972. He kept the two plastic bags of green plant substance in his possession until approximately 9:00 AM the same date and at which time he went to 208V2 East Broadway and asked one white male approximately 20 to 25 years of age, tall and heavy build and having dark hair and a dark bushy beard, later identified by a photograph as a suspected narcotic user being one Dennis G. Dean. At such time the informant asked the said Dennis G. Dean if he had lost something and Dean’s reply was yes. The dogs found it and drug (sic) it out into the yard and at this time the informant returned the two plastic bags of green plant substance into the house at 208¾⅞ East Broadway. The informant states that in the past he had handled and smoked marijuana and he further states the contents of the two plastic bags to be of the same substance that he handled and smoked in the past being marijuana. It is believed at this time the green plant substance is concealed in the house at 208½ East Broadway Street.”

In determining the sufficiency of such affidavit to reflect probable cause for the issuance of the search warrant, we are bound by the four corners thereof. Article I, Sec. 9, Tex.Const., Vernon’s Ann.St.; Article 18.01, Vernon’s Ann.C.C.P.; McLennan v. State, 109 Tex.Cr.R. 83, 3 S.W.2d 447, 448 (1928); Hall v. State, 394 S.W.2d 659 (Tex.Cr.App.1965); Gaston v. State, 440 S.W.2d 297 (Tex.Cr.App.1969) (Concurring Opinion); Ruiz v. State, 457 S.W.2d 894 (Tex.Cr.App.1970) (Concurring Opinion at p. 896).

The affidavit in question reveals that it is sufficient to satisfy the first prong of the Aguilar test. The unnamed informer declared he had personally observed the green plant substance which he knew to be marihuana and had actually delivered the same to Dennis Dean at a stated address. These underlying circumstances are full enough to meet the first prong of the Aguilar test. We do not understand the appellants to contend otherwise, it being their contention that it is the second prong of the Aguilar test which is not satisfied by the affidavit, particularly since the unidentified informer is not shown to be of known or tested reliability.

It is true that many cases dealing with a search warrant affidavit based solely upon hearsay involve an unidentified informer who is described as one of proven reliability by having previously given true and correct information leading to the discovery of narcotics, arrests, convictions, etc. These allegations or type of description of the usual police informer undoubtedly stemmed from Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960).

The absence of an allegation of prior reliability, as in the instant case, is not ipso facto a fatal defect in the affidavit. Adair v. State, 482 S.W.2d 247, 250 (Tex.Cr.App.1972).

Although the affidavit in the instant case does not contain an allegation of prior reliability, we must determine if there are other factors present sufficient to satisfy the second prong of Aguilar.

It appears from the affidavit that the officer-affiant was confronted with a first-time informer or a citizen informer whom he described in the affidavit only as “a reliable and credible person,” which con-clusory statement is not sufficient standing alone. Aguilar v. Texas, supra; Adair v. State, supra; Stoddard v. State, 475 S.W.2d 744 (Tex.Cr.App.1972). The officer-affiant did not elaborate upon such conclusory statement or offer the magistrate in the affidavit other factors bearing on a first-time informer’s reliability and credibility often found in affidavits involving first-time informers such as the presence or absence of a criminal record, reputation in the community, reputation with associates, position in community. See, i. e., Adair v. State, supra; Yantis v. State, 476 S.W.2d 24 (Tex.Cr.App.1972); Wetherby v. State, 482 S.W.2d 852 (Tex.Cr.App.1972); Cook v. State, 497 S.W.2d 295 (Tex.Cr.App.1973).

Therefore, we must look elsewhere in the affidavit to determine if the conclusory statement is supported.

In the affidavit we do find a declaration against penal interest. The informer had stated that based on his past experience he knew that the substance he found was marihuana and he kept it in his possession for some six hours. Such possession was unlawful and in violation of Article 725b, Sec. 2(a), Vernon’s Ann.P.C., then in effect. He later talked to Dean and delivered the marihuana to Dean’s house. There is a second possible declaration against penal interest in the affidavit wherein the informer stated he had in the past handled and smoked marihuana. While this statement certainly lends great strength to other portions of the affidavit, it cannot be considered as a second declaration against penal interest in that there is no showing when or where the same occurred. Nevertheless, we do have one declaration against penal interest to consider.

One of the ambiguities arising from United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), is whether a declaration against penal interest by the informer is alone sufficient to support a finding that the informer is credible. The affidavit in Harris, as in the instant case, did not aver the previous reliability of the informer as a basis for the affiant’s conclusion that the informer was credible. Five Justices agreed on the ultimate proposition that the affidavit in Harris was sufficient. The opinion of the court, however, was divided into three parts. Part I discussed the aggregation of facts which made the affidavit sufficient. Part II discussed the value of using affiant’s personal knowledge of the suspect’s background to corroborate the informer’s tip. Part III discussed the declaration against penal interest as “an additional reason for credibility of the informant’s tip.” Three Justices in the majority emphasized all three parts as the basis for their holding. One Justice agreed only with Part I, and another Justice agreed only with Part III and a consideration of the affidavit “as a whole.” Four Justices dissented, deeming the affidavit insufficient. Harris thus seems to stand only for the proposition that the affidavit in the case was sufficient, as no more than four Justices would agree that a declaration against penal interest is sufficient. From an examination of federal and State cases decided since Harris, the prevailing view appears to be that such declarations against penal interest are indeed sufficient, but this conclusion is not made without some difficulty because in many instances the courts have not been faced with deciding the conclusiveness of declarations against penal interest alone.

Likewise, in the instant case we need not decide whether a declaration against penal interest, standing alone or just what nature of a declaration against penal interest standing alone, is sufficient to support the reliability and credibility of the informer. This is so because there are other factors bearing on probable cause.

In United States v. Squella-Avendano, 447 F.2d 575 (5th Cir. 1971), the court in applying a three tier method for testing whether the Aguilar requirements have been met said in part:

“. . . First, if the information provided is in such ‘detail’ and ‘minute particularity’ that ‘a magistrate, when confronted with such detail, could reasonably infer that the informant has gained his information in a reliable way,’ then the report, if sufficiently incriminating, may, without more, be grounds for finding probable cause. . . .” See and cf. Adair v. State, supra.

In light of the above, an examination of the search warrant affidavit reveals that the informer, though unnamed, stated that “in his yard adjacent to 2O8V2 East Broadway” he had on November 24, 1972, found green plant substance in two plastic bags which he knew was marihuana from his past experience with it, that he kept it for six hours and then took it to 208½ East Broadway where a white male, described in detail, took the marihuana, claiming he lost it, and took the same into the house. From the description given, Dennis Dean was identified as the white male involved.

It would be difficult to imagine a case where the information provided was with such detail and minute particularity.

In the instant case the magistrate was confronted with an affidavit in such detail that it could reasonably be inferred the informer had gained his information in a reliable way and was sufficiently incriminating, plus the fact that the informer made a declaration against penal interest, and further was a citizen informer who came forward with the information, and, although his name was not revealed, the location of his residence was in effect revealed. We conclude that when the affidavit is considered as a whole in the common sense and realistic way recommended in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), the second prong of the Aguilar test was met. We need not therefore discuss whether the affidavit also could be construed as reflecting the officer-affi-ant’s personal knowledge of Dean’s reputation as a suspected narcotic user.

Both appellants challenge the sufficiency of the evidence to show the offense of possession of marijuana as to each of them.

The record reflects that on November 25, 1972, peace officers, armed with a search warrant, conducted a search at a house at 2O8V2 East Broadway in Del Rio. Deputy sheriff Joe Gardner testified that as he approached the house he saw appellant Abercrombie through the screen door sitting in a chair who got up with a bundle in his hand and began “running, moving fast” in an easterly direction. When he entered the house, Abercrombie was coming out of the bathroom, where in the commode there were approximately 30 rolled cigarettes with one plastic bag containing a green plant substance, which was all shown to be marihuana. Gardner testified that “there was marihuana, marihuana paraphernalia, narcotics paraphernalia, lying around different places of the room (living room), couch, end table, coffee table, the dining table, in the kitchen. It was just everywhere.” In the kitchen oven were found a plastic dishpan and a cake-type pan with raw stems of marihuana. Traces of marihuana were found on the stove, and in the kitchen was a large quantity of plastic baggies. In the hot water heater closet another box of marihuana was discovered. One baggie of seeds was taken from the living room couch, traces from an ash tray. There were also found an incense lamp, scales, pipes, roach holders and an alligator-type clip: On the table was found another plastic baggie with marihuana in it. A number of items of clothing found in one of the two bedrooms had traces of marihuana on them or in the pockets.

Jerry Wayne Davis was the only person other than Abercrombie in the house when the officers conducted the search. Mrs. Mildred Stewart testified she owned the house in question and had rented it to appellant Dennis Dean, who paid the rent with the understanding that he and one Wesley Daniels would live there, and she testified they did. James Marston testified he lived at 204V2 East Broadway, adjacent to the house in question, and also rented from Mrs. Stewart. He related that he knew Dennis Dean by sight as they bypassed each other going into their respective houses. In the early morning hours of November 24,1972, he found a green grassy substance scattered over the yard between the two houses in plastic bags which he knew from his own use of it to be marihuana. He testified he took the substance into his house and put it in paper bags as the plastic bags had been chewed by some animal, and kept the marihuana some six hours and then went to Dean’s house at 9 or 9:30 in the morning and had a conversation with Dean. When asked if he lost something during the night, Dean replied in the affirmative and asked Marston if he knew where it was. Marston said, “Yes . I have got it over at my house. I will go get it.” Marston walked 15 to 20 feet, reached in his door and picked up the bags, and within 10 or 15 seconds was again knocking on Dean’s door. When it opened, a hand came out and took the bags. Mar-ston never did see Dean leave the house during the interval. Mrs. Stewart saw Dean there that morning and he was observed passing a football in the street in front of the house about 1 p. m. before the search which occurred about 5 p. m. Dean was not at the house at the time of the search, but was arrested at 6:45 p. m. in Abercrombie’s car.

Abercrombie argues that he did not live at the dwelling in question, that no marihuana was shown to have been found on his person, that the officers did not testify as to any marihuana smoke or odor when they entered the house. Dean, likewise, argues no marihuana was found on his person when arrested, and he was not present when the search was conducted.

The court charged the jury on the law of circumstantial evidence.

In proving possession in narcotics cases, it is not necessary to prove that the accused had exclusive possession of the narcotics in question. Adair v. State, 482 S.W.2d 247 (Tex.Cr.App.1972), and cases there cited; Harvey v. State, 487 S.W.2d 75 (Tex.Cr.App.1972); Buntion v. State, 476 S.W.2d 317 (Tex.Cr.App.1972); Shortnacy v. State, 474 S.W.2d 713 (Tex.Cr.App.1972); Ellis v. State, 456 S.W.2d 398 (Tex.Cr.App.1970).

Various facts and circumstances may be shown to prove that the accused and another person or persons acted together in jointly, possessing a narcotic. Adair v. State, supra; Harvey v. State, supra; Ochoa v. State, 444 S.W.2d 763 (Tex.Cr.App.1969); Perry v. State, 164 Tex.Cr.R. 122, 297 S.W.2d 187 (1957).

Where there is an absence of direct evidence that an accused was in exclusive possession of a narcotic, then possession, if any, must be proved by circumstantial evidence. Collini v. State, 487 S.W.2d 132, 136 (Tex.Cr.App.1972).

The evidence presented by the State must affirmatively link the person accused of possession to the narcotic which he is alleged to have possessed. Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1972); Hausman v. State, 480 S.W.2d 721 (Tex.Cr.App.1972); Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.1972); Harvey v. State, supra. This affirmative link is established by showing additional independent facts and circumstances which may indicate the accused’s knowledge of the narcotic, as well as his control over such. See Adair v. State, supra; Harvey v. State, supra; Collini v. State, supra.

In the instant case the appellant Abercrombie was seen running with a bundle in his hand as the officers approached the house in question. As they entered he was seen coming from the bathroom where the officers immediately found a plastic bag of marihuana, as well as marihuana cigarettes in the commode. Marihuana or traces of the same were literally found everywhere in the house. Early on the morning of the search Marston found plastic bags of marihuana in his yard adjacent to the house rented by appellant Dean. When six hours later he talked to Dean, he admitted he had lost “something” and asked Marston if he had it. When Marston returned within 10 to 15 seconds with the marihuana, a hand reached out the door and took the same. Marston never did see Dean leave the house during that time. There was also evidence Dean was passing a football in the street near his rented house. While Dean was not present at the time of the search, the house was under his control, marihuana was literally everywhere, and he or someone in the house had accepted the marihuana brought by Marston after Dean’s conversation with him. We con-elude the evidence was sufficient to support the verdict of guilty as to both Dean and Abercrombie.

Appellant Abercrombie also complains in one ground of error of the court’s failure to respond to his three objections to the court’s charge. The ground of error is multifarious under Article 40.09, Vernon’s Ann.C.C.P. Further, we have examined the contentions and find that the court’s charge in essence gave the same instructions the appellant sought, and that error or errors, if any, were not calculated to injure the rights of the appellant Abercrombie or deprive him of a fair and impartial trial. See Article 36.19, Vernon’s Ann.C.C.P.

Appellee’s motion for rehearing is granted, the judgments of reversal are set aside, and the judgments are affirmed.

ROBERTS and ODOM, JJ., dissent for the reasons stated in the opinion on original submission.

      . It should be noted that the following comment regarding the affidavit in Adair appeared in footnote 2 therein: “The affidavit nevertheless is not a model and should not be used as such in future cases, as is often done in cases where this court has upheld the sufficiency of a certain affidavit.”

      . As Chief Justice Burger said, speaking for himself and three other Justices, “. . . this Court in Jones never suggested that an averment of previous reliability was necessary.” United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971). He noted that inquiry in determining probable cause should be whether the informer’s present information is truthful and reliable.

      . In United States v. Barfield, 507 F.2d 53 (5th Cir. 1975), the only item mentioned supporting the credibility of the informant was the fact that the statement made in the affidavit was against his penal interest. Similarly, in United States v. Neal, 500 F.2d 305 (10th Cir. 1974), a statement against penal interest was the sole support for the second prong of Aguilar, and the affidavit was upheld. Other cases so holding are numerous: Quigg v. Estelle, 492 F.2d 343 (9th Cir. 1974); Armour v. Salisbury, 492 F.2d 1032 (6th Cir. 1974) (declarations against penal interest are “sometimes conclusive”); United States v. Carmichael, 489 F.2d 983, 986-7 (7th Cir. 1973) (en banc) (declaration sufficient); Agnellino v. New Jersey, 493 F.2d 714 (3d Cir. 1974) (sufficient); State v. LaBarre, 292 Minn. 228, 195 N.W.2d 435, 441 (1972) (sufficient); People v. Bolender, 24 Ill.App.3d 804, 322 N.E.2d 624, 627 (1975) (sufficient); People v. Barcia, 37 A.D.2d 612; 323 N.Y.S.2d 517 (1971) (sufficient); Wright v. State, 309 So.2d 557 (Fla.App.1975) (sufficient); Manley v. Commonwealth, 211 Va. 146, 176 S.E.2d 309 (1970), cert. den. 403 U.S. 936, 91 S.Ct. 2245, 29 L.Ed.2d 716 (1971) (sufficient). Those cases definitely stating that a statement against penal interest is insufficient are few: Commonwealth v. Fleurant, 311 N.E.2d 86 (Mass.App.Ct.1974).
      Despite the several cases stating that a declaration against penal interest alone may be sufficient, most of the discovered cases involved statements far more inculpatory than the one present in the instant case: admissions of participation in robbery, obstruction of justice, drug sales, etc. Often the informant was an accomplice and therefore at least as culpable in the crime in issue as was the defendant. In many other cases a statement against penal interest was present, but there were also many other factors which led to the courts’ conclusions. See, e. g., State v. Hayward, 523 P.2d 1278 (Or.App.1974); State v. Everett, 214 N.W.2d 214 (Iowa 1974); United States v. Mackin, 163 U.S.App.D.C. 427, 502 F.2d 429 (1974).


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

text:
    John Elson BOUIE, Appellant, v. The STATE of Texas, Appellee.
    No. 50305.
    Court of Criminal Appeals of Texas.
    July 9, 1975.
    Rehearing Denied Oct. 22, 1975.
    Second Rehearing Denied Nov. 12, 1975.

      Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III, and Phyllis Bell, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
    No appearance for appellant.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for robbery by assault under our former code. The court assessed punishment at ten years’ confinement.

We are confronted at the outset with a fundamentally defective indictment. As in Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973) (case 1), the indictment here fails to allege “to whom the property allegedly taken belonged.” See Lucero, supra, and the authorities there cited.

The judgment is reversed, and the prosecution is ordered dismissed.

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

We file this opinion on rehearing because the dissent places such great reliance upon the opinion of this Court in Clark v. State, 527 S.W.2d 527 (1975). That reliance is misplaced.

In Clark, supra, the sufficiency of the indictment to allege robbery by assault was not in issue. The indictment in Clark did allege ownership whereas the indictment in the instant case did not. Therefore, we take issue with the assertion of the dissent that “this Court has held contrary to the present case in Clark v. State.” The dissent also asserts, “This Court held [in Clark] that it made no difference who owned the property, but it was the possessor of the property that counted.” To the contrary, Clark merely applied the established rule, stated in Article 21.08, V.A.C.C.P., that ownership may be alleged in the possessor, and found the evidence sufficient on the allegations of both possession and ownership. It did not hold that ownership need not be alleged at all.

The State’s motion for rehearing is overruled.

DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

The conviction was reversed because the State did not allege something in the indictment that was not required in the robbery statute under which he was convicted.

The majority requires the State to allege not only who had possession of the property taken in the robbery but also who owned the property. Article 1408, V.A.P.C. (1925), does not have such a requirement. It provides:

“If any person by assault, or violence, or by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary . . .”

The reversal was based on Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1974), which held that ownership as well as possession of property must be alleged in a robbery case. This was no doubt done because the district attorney in that case confessed error. There were some old cases supporting the confession of error. Now that the past mistakes have been called to the court’s attention, they should be corrected. The repetition of error does not justify additional error.

The appellant did not file a motion to quash the indictment. He did not urge lack of an allegation of ownership as a ground of error in his appellate brief. There was no claim that possession was alleged in the wrong person. The majority holds that the indictment is fundamentally defective.

Since the opinion was written on original submission, this Court has held contrary to the present case in Clark v. State, 527 S.W.2d 527 (1975). In that case this Court wrote:

“. . . appellant contends that there is a fatal variance between ownership of the money as alleged in the indictment and as proved at trial. The indictment alleged ownership in Richard Amos. From the foregoing facts, it is clear that at trial the true owner of the property was shown to be Hubert Kidder. In view of our disposition of appellant’s second ground of error, this contention is without merit. Art. 21.08, V.A.C.C.P., provides in pertinent part that in any indictment:
“ ‘Where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either.
“The evidence was sufficient to sustain the jury’s conclusion that Richard Amos had possession of the property at the time of the robbery. Hence, it was proper to allege ownership in his person and no variance is shown. Ford v. State, supra [502 S.W.2d 160]; Michaels v. State, 120 Tex.Cr.R. 553, 49 S.W.2d 444; Guyon v. State, 89 Tex.Cr.R. 287, 230 S.W. 408.

In the second ground of error of the Clark case it was contended that the proof did not show possession of the money to have been in Amos. This Court wrote:

“A charge of robbery by assault may be supported by evidence of a taking by placing in fear from the possession of the victim. Art. 1408, V.A.P.C. The concept of possession in the robbery statute is broader than that of the theft statutes, Arts. 1410 et seq., V.A.P.C. Barfield v. State, 137 Tex.Cr.R. 256, 129 S.W.2d 310; Goodrum v. State, 172 Tex.Cr.R. 449, 358 S.W.2d 120; Ford v. State, Tex.Cr.App., 502 S.W.2d 160. We have frequently said that any right to possession by the victim superior to that of the defendant is sufficient to support a conviction for robbery. West v. State, Tex.Cr.App., 480 S.W.2d 640; Wright v. State, Tex.Cr.App., 468 S.W.2d 422; Goodrum v. State, supra. It is only where the victim of the assault has no right to possession whatsoever that a charge of robbery may not be sustained. Hence, where the taking has been from a store clerk or after an assault upon a watchman, for example, convictions for robbery have been upheld. E. g., Emerson v. State, Tex.Cr.App., 476 S.W.2d 686; Blankenship v. State, 166 Tex.Cr.R. 51, 310 S.W.2d 579; Ibeck v. State, 112 Tex.Cr.R. 288, 16 S.W.2d 232.”

We see from the Clark case that the allegation alleged the ownership and possessor of the property to be Amos. The proof showed the owner to be Kidder. This Court held that it made no difference who owned the property, but it was the possessor of the property that counted. If a variance in the indictment as to ownership and proof is immaterial, then it is not necessary to allege ownership, only possession. If ownership does not have to be proved, it does not have to be alleged. If ownership is proved to be in a different person from the one alleged in the indictment and such is not error, then the ownership allegation is sur-plusage.

If there is a distinguishing feature between the Clark case and the present case, the majority should spell it out. A rule should apply to all eases.

It might be thought by the majority that since Article 1408 is no longer in effect it makes little difference as to the outcome of this ease. This is no reason. Even if this were the only case left to be decided, the Clark case should be followed. It is later than the Lucero case, supra. It was decided after the present case. There are at least five other cases pending in this Court in which the indictments allege only the possession of the property. How many more cases that might be pending is not known.

Further, ownership should not be added as an element to the offense of robbery since it is not required by the Legislature. A pleader should be able to rely upon the statute. Even if ownership were required to be alleged by statute in a robbery case, Article 21.08, V.A.C.C.P., provides where ownership is alleged it may be in one who possesses the property.

Under certain circumstances one could be convicted for taking his own property when he does it at gun point. In such a case it would be senseless to allege ownership in a defendant. Where one has had possession of property for some time and another claims it as a true owner, the claimant should not be encouraged by this Court to take the property by force. Disputes of that kind should be settled by the courts and not by guns. See Crawford v. State, 509 S.W.2d 582 (Tex.Cr.App.1974); Fanin v. State, 51 Tex.Cr.R. 41, 100 S.W. 916 (1907), and Frazier v. State, 170 Tex.Cr.R. 432, 342 S.W.2d 115 (1961). Other jurisdictions do not countenance violent self help as a defense. See State v. Martin, 15 Or.App. 498, 516 P.2d 753 (1973); People v. Uselding, 107 Ill.App.2d 305, 247 N.E.2d 35 (1969), and Elliott v. State, 2 Tenn.Cr.App. 418, 454 S.W.2d 187 (1970). The. older cases upon which the Lucero case was based were decided upon the replaced and outdated theory that one could not be convicted for taking his own property at gun point and they should be expressly overruled.

We should specifically reject the erroneous application of Article 1408, supra, in the original opinion. This in effect was done in the Clark case. We should not encourage use of violent self help to regain property unless he uses reasonable force immediately after the property was taken from him or he was in fresh pursuit of the property as provided for under Section 9.41, V.T.C.A. Penal Code (1974).

The prior reversal should be set aside and the State’s motion for rehearing granted and the judgment affirmed.


author: ROBERTS, Judge. DOUGLAS, Judge

text:
    Marvin Joel FENTIS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 49833, 49834.
    Court of Criminal Appeals of Texas.
    Oct. 8, 1975.
    Rehearing Denied Nov. 5, 1975.

      Robert M. Jones, Court-appointed, Lewis R. Sifford, Court-appointed, Melvyn Carson Bruder, Court-appointed, Dallas, for appellant.
    Jim D. Vollers, State’s Atty., and David S. MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

These are appeals from convictions under Art. 1160a, V.A.P.C., for assault with intent to murder a peace officer. Trial was before a jury and the jury assessed punishment at life imprisonment in each case. Both the offenses and the trials took place before January 1, 1974, the effective date of the new Penal Code.

The evidence showed that Garland police officers Don M. Ashlock and James Bunch were making a routine investigation around the neighborhood of Laredo Lane and Robin Road in Garland around midnight of March 3-4, 1973. Encountering appellant walking on the side of the road, the officers stopped their vehicle. Appellant turned and advanced on the automobile whereupon the officers alighted from their car and ordered appellant to remove his hands from his pockets. He produced a .45 caliber pistol and a shoot-out ensued. Appellant fled on foot but was apprehended a short time later.

At the trial, appellant’s main defenses were self-defense and the fact that he could not tell that Ashlock and Bunch were police officers when they got out of their car. He admitted convictions for assault, petty theft and transporting a stolen vehicle across state lines. On cross-examination, the State attempted to introduce an extraneous offense. Outside the presence of the jury, appellant denied having anything to do with the death of a Houston police officer named Spruill on October 26,1972. Despite counsel’s objections, the court ruled that the question could be asked. When the jury had returned, the prosecutor put the following question to appellant:

“Now, aren’t you the same Marvin Joel Fentis who is under indictment in Houston, Texas, for killing a police officer?”

Counsel’s objection to the form of this question was sustained and the jury instructed to disregard it. Mistrial was denied. The prosecutor then asked if appellant was the one who had killed a Houston police officer named Spruill on March 26, 1972. Counsel re-urged the objections he had made outside the presence of the jury and they were again overruled. Appellant then answered the question in the negative. No further attempt was made by the State to connect appellant with the commission of this extraneous offense.

In related grounds of error, appellant urges (1) that admission of the extraneous offense was error because it was not admissible on the issue of intent, (2) that admission of the extraneous offense was also error because it was not shown to be connected to appellant, and (3) that the reference to an indictment pending against appellant was prohibited by Art. 38.29, V.A.C. C.P.

With regard to the admissibility of the extraneous offense, it is true that a specific intent to kill can be presumed from appellant’s use of a deadly weapon, and thus intent to kill was not really in issue. Rodriguez v. State, 486 S.W.2d 355, 359 (Tex.Cr.App.1972). However, extraneous offenses are also admissible on the element of scienter, or, in this case, appellant’s ability to recognize a policeman in uniform at night, or knowledge that he was such. The extraneous offense would be admissible on the question of appellant’s knowledge that the victims were police officers, a specific intent element of Art. 1160a, V.A.P.C. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).

It is elementary that an accused’s connection with an extraneous offense must be shown with some degree of certainty before evidence of that offense can come in, assuming it is relevant. Carmean v. State, 163 Tex.Cr.R. 218, 290 S.W.2d 240 (1956); Tomlinson v. State, 422 S.W.2d 474 (Tex.Cr.App.1968); 23 Tex.Jur.2d Evidence, Sec. 195, p. 302. In Tomlinson, the jury was finally instructed to disregard the evidence of the extraneous offense because of this infirmity, but reversal was still required. In the case at bar, the jury was not told that it could not consider this extraneous offense, but the judge included in his charge the standard instruction that no extraneous offense could be considered unless the appellant were shown to be sufficiently connected with the commission of the offense. This charge cannot cure the error in this case.

The State’s response to this ground of error is that appellant’s objection at trial was too general to preserve this question for review. In Mission Petroleum Carriers, Inc. v. State, 518 S.W.2d 833 (Tex.Cr.App.1975) a much less specific objection was held sufficient to preserve the identical point on appeal. The rule that an accused must be shown to be connected to an alleged extraneous offense is a requirement for properly bringing in such an offense and appellant’s objections thereto were sufficient to preserve this question for review.

The harmfulness of this error needs little discussion. Appellant was on trial for assaulting a peace officer with intent to kill. He admitted three relatively minor offenses and then the State suggested that he had murdered a Houston police officer four months before. The error was compounded by the State’s suggestion that a grand jury had already indicted appellant for this extraneous offense. The prejudice thus planted in the minds of the jurors can hardly be doubted.

In the event of a retrial of this ease, we deem it appropriate to discuss the related matter of the reference to appellant’s indictment for the Houston offense.

The only item of proof remotely connecting appellant with the murder of the Houston police officer was the prosecutor’s inquiry concerning the indictment pending against appellant in that case. The State contends that evidence of a pending indictment is admissible to show bias, prejudice, and motive, citing Luna v. Beto, 395 F.2d 35 (5th Cir. 1968), cert. den., 394 U.S. 966, 89 S.Ct. 1310, 22 L.Ed.2d 568, and Blake v. State, 365 S.W.2d 795 (Tex.Cr.App.1963). These cases deal with the admissibility of charges pending against prosecution witnesses to show bias or interest and have nothing to do with a defendant who is testifying. Art. 38.29 controls in such situations and explicitly prohibits evidence of pending indictments to be used for impeachment purposes as was done here. Ridler v. State, 375 S.W.2d 447 (Tex.Cr.App.1964).

Further with respect to the question concerning the indictment, the State points out that it was never answered and that the jury was instructed to disregard the question. In Salazar v. State, 432 S.W.2d 957 (Tex.Cr.App.1968), the error in asking the defendant if he had been convicted of “ex-convict in possession of firearms” was held to be harmless even though the conviction referred to was then on appeal, since the question was withdrawn before the defendant could answer it and since the defendant had previously admitted final convictions for three serious felonies. In the instant case, however, it is clear that the prosecutor was aware that criminal proceedings against appellant in connection with the murder of the Houston police officer had not progressed beyond the indictment stage. The contrast in the seriousness of the crimes admitted by Salazar and appellant in this case and in the seriousness of the crimes offered for impeachment in Salazar and this case also provide a distinction between the two cases. The harmfulness of this error in a trial for assault with intent to murder a peace officer is manifest, and cannot be dismissed as it was in Salazar.

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

DOUGLAS, Judge

(dissenting).

The majority reverses these convictions because of an unanswered question and one answered favorably to appellant.

The State was no doubt asking questions of appellant to ascertain if he were the person with the same name who shot and killed an officer in Houston. The record reflects that the questions were asked in good faith. The State was not able to connect the appellant by his testimony with the shooting. Appellant answered that he was not the person who shot the officer in Houston. If the State could have shown that appellant shot the officer in Houston it would have been admissible under previous decisions of this Court. See Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).

The intent to defend himself was an issue made by appellant’s own testimony. He related that he shot at the men in self-defense not knowing that they were officers. If he, without provocation, shot another officer, proof of such an incident would go to his intent and would be admissible to disprove his theory of self-defense.

In Albrecht v. State, supra, this Court noted several instances where extraneous offenses could be admissible. One of the examples given was that they could be introduced to disprove a defensive issue. See Lolmaugh v. State, 514 S.W.2d 758 (Tex.Cr.App.1974), where evidence of shooting another person was held admissible to disprove the defensive issue of self-defense.

Also, in the present record there was some evidence that appellant was a black muslim. There was an attempt to show that muslims hated police officers. Evidence of the other shooting, if the State could have developed it, would have been admissible to show bias and hatred toward a class — police officers. See Dillard v. State, 477 S.W.2d 547 (Tex.Cr.App.1971).

The question asked about the indictment was unanswered. The judge instructed the jury not to consider it. This Court rarely reverses a case because of unanswered questions. See Mirowitz v. State, 449 S.W.2d 475 (Tex.Cr.App.1969), and Gleffe v. State, 509 S.W.2d 323 (Tex.Cr.App.1974).

Appellant answered the other question that he was not the person who shot the officer. In the context appellant was not harmed by the questions.

The majority asserts that the court’s charge compounded an error. There was no objection to the court’s charge. There was evidence before the jury that he had been convicted for other offenses.

No reversible error has been shown. The judgments should be affirmed.

      . Appellant was shot in the chin; Ashlock was wounded in the shin; and Bunch was not injured.

      . “The fact that a defendant in a .criminal case * * * is or has been charged by indictment * * * with the commission of an offense against the criminal laws of this State * * * shall not be admitted in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless * * * a final conviction has resulted.”

      . “We object, Your Honor, on the ground, number one, it’s not the proper way to bring in an extraneous offense. Number two, it’s irrelevant and highly prejudicial to him and constitutes an irrelevant offense, unrelated offense.”


author: ONION, Presiding Judge.

text:
    Richard McCONATHY, Appellant, v. The STATE of Texas, Appellee.
    Nos. 50573 to 50575.
    Court of Criminal Appeals of Texas.
    Oct. 8, 1975.

      Kerry P. Fitzgerald, Dallas, for appellant.
    Henry Wade, Dist. Atty., Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

These appeals are taken from final bond forfeiture judgments in the same court— County Criminal Court of Dallas County, where the appellant McConathy was the bondsman-surety on all three bonds.

These cases present the question of whether the bond can be forfeited (a) when the principal fails to serve the jail time assessed as punishment and does not pay his fine and court costs; (b) when he serves his jail time but does not pay his fine and court costs; and (c) when he is placed on misdemeanor probation and violates the probationary conditions to pay a fine and court costs.

The facts vary somewhat in each case. In Cause No. 50,573 (Trial Court No. CCR 74-189), the defendant Morphis was charged with driving while intoxicated. On March 7, 1974, the appellant-surety McCon-athy posted an appearance or bail bond for the principal Morphis in the amount of $200.00 On July 16, 1974, Morphis appeared in court represented by counsel, executed a jury waiver and waiver of delay of sentencing, and entered a guilty plea before the court. The court then assessed punishment at three (3) days in the county jail and a fine of $250.00 plus court costs. Having waived any delay in sentencing, sentence was imposed on the same date. No motions for new trial or in arrest of judgment were filed and no notice of appeal given. On the docket sheet only is found the notation, “The time is to be served and the fine and cost are to be paid not later than the 20 day of September A. D. 1974.” It appears that the defendant-principal was then released. On February 13, 1975, the court entered a judgment nisi, and on February 14, 1975, a capias pro fine was issued. On February 17, 1975, a “Notice to Sureties” was issued. A citation was issued on March 18, 1975, and executed on March 20, 1975. On April 25, 1975, a hearing was held to determine why final judgment should not be entered, at the conclusion of which the trial court made the judgment final.

In Cause No. 50,575 (Trial Court No. CCR 74-2709), Chris Burton was arrested on July 5, 1974, for the misdemeanor offense of escape after having been arrested for possessing fireworks. On July 7, 1974, the appellant-surety filed an appearance or bail bond for Burton in the amount of $500.00.

On November 22, 1974, Burton appeared in open court represented by counsel, executed a waiver of jury trial and waiver of delay of sentencing, and entered a plea of guilty before the court. Punishment was assessed at three (3) days’ confinement in jail and a fine of $175.00. Court costs of $50.00 were assessed. Burton served three (3) days in jail, but did not pay the fine and court costs which the court ordered to be paid not later than January 22, 1975.

On February 13,1975, the appellant-surety received notice that the bail bond had been forfeited because of the principal Burton’s failure to pay the fine and court costs. Citation was issued and after hearing on April 25, 1975, a final judgment was issued.

In Cause No. 50,574 (Trial Court No. CCR 74-1142), Daniel Alvarado, Jr., was charged with driving while intoxicated. After his original bondsman “went off” his bond, the appellant McConathy posted an appearance or bail bond for Alvarado as principal on June 10, 1974, in the amount of $200.00.

On September 10, 1974, Alvarado in open court waived the appointment of counsel, filed a motion for probation, and entered a plea of guilty before the court. The court assessed his punishment at sixty (60) days in jail and a fine of $250.00, but suspended action in accordance with Article 42.13, Vernon’s Ann.C.C.P., and placed the defendant on misdemeanor probation for a period of twelve (12) months. Among the probationary conditions imposed was that the defendant Alvarado pay his court costs and further a fine of $250.00 no later than November 11, 1974. No notice of appeal was given. When the defendant failed to comply with the above probationary conditions, the trial court set the case on the docket for January 22, 1975. When the defendant-probationer did not appear, the court forfeited the bail bond and entered a judgment nisi. On January 23,1975, notice was sent to the appellant that the bond had been forfeited for failure of Alvarado to pay his fine and court costs. Scire facias was issued, and on April 25, following a hearing, the judgment was made final.

Article 17.01, Vernon’s Ann.C.C.P., provides:

“ ‘Bail’ is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond.”

Article 17.02, Vernon’s Ann.C.C.P., provides in part:

“A ‘bail bond’ is a written undertaking entered into by the defendant and his sureties for the appearance of the principal therein before some court or magistrate to answer a criminal accusation;

The prime object or purpose of bail is to secure the presence of an accused upon trial of an accusation against him. It is not a revenue measure intended to be a substitution for a fine, but is intended to secure the trial of the alleged offender rather than turn his securities or those of his bondsman into a penalty. Grantham v. State, 408 S.W.2d 235 (Tex.Cr.App.1966), and cases there cited.

Article 17.09, Vernon’s Ann.C.C.P., provides that a bail bond for the appearance of a defendant “shall be valid and binding upon the defendant and his sureties, if any, thereon, for the defendant’s personal appearance before the court or magistrate designated therein, as well as before any other court to which same may be transferred, and for any and all subsequent proceedings had relative to the charge,

The same form bonds were utilized in all three cases in the appeals before us, and each bond was conditioned that the defendant-principal appear to answer the charge against him “and for all subsequent proceedings had relative to the charge.”

The State takes the position that the proceedings at which each principal failed to appear were “subsequent proceedings had relative to the charge” upon which the bonds were conditioned and the trial court properly forfeited the bonds. The appellant takes the position that all proceedings relative to the charge in each case had been disposed of, noting that there was no motion for new trial and no notice of appeal filed in any of the cases. He contends the trial court improperly used bond forfeiture proceedings in an attempt to collect fines and court costs and to enforce the conditions of probation without revocation.

The term “subsequent proceedings had relative to the charge” is not defined in the statute, and there is not much decisional law on the same. In McCallum v. State, 411 S.W.2d 361 (Tex.Cr.App.1967), the court held that a hearing on a motion for new trial was a subsequent proceeding relative to the charge, and the court’s action in forfeiting the bond for failure to appear at such hearing was proper. In McCallum the defendant was placed on misdemeanor probation but filed a motion for new trial. The conviction was one from which he could have taken an appeal if his motion for new trial had been overruled. We adhere to our ruling in McCallum. While there may be other subsequent proceedings had relative to the charge, we cannot conclude that the proceedings utilized by the court in the instant cases were such subsequent proceedings had relative to the charge as contemplated by the statute. In Causes Nos. 50,-573 and 50,575 judgments were entered and sentences were pronounced. No motions for new trial were filed and no notices of appeal were given. Clearly the convictions had become final. Article 42.09, Vernon’s Ann.C.C.P., provides that the sentence shall begin to run on the day the same is pronounced unless an appeal is taken. See Ex parte Voelkel, 517 S.W.2d 291 (Tex.Cr.App.1975).

In Cause No. 50,573, after the sentence had become final, the court gave the principal Morphis a little more than two months to pay his fine and court costs and to serve his time. While the provisions of Article 42.15, Vernon’s Ann.C.C.P., permit the court to allow a defendant to pay his fine and costs at some later date, the statute does not apply to jail time. Article 42.09, Sec. 2, Vernon’s Ann.C.C.P., provides “a defendant shall be delivered to jail . when his sentence to imprisonment is pronounced.” See and compare Articles 42.11 through 43.13, Vernon’s Ann.C.C.P. The court was obviously unauthorized to allow the principal-defendant Morphis time before he commenced serving his jail time.

Article 43.03, Vernon’s Ann.C.C.P., provides that if an accused is sentenced to pay a fine or costs or both and he defaults in payment the court may order him imprisoned in jail until discharged by law. Article 43.07, Vernon’s Ann.C.C.P., also provides for an execution to issue for the fine and costs even though a capias has been issued for the defendant’s arrest. Thus, it is clear that when Morphis failed to pay his fine and costs at the later date set in accordance with Article 42.15, supra, the above remedy was available to the court. Under the circumstances here described, the court was not authorized merely to set the case and forfeit the bond when the principal-defendant failed to appear and to pay his fine and costs or to serve his jail time. The proceedings were not “subsequent proceedings had relative to the charge.” It was clearly an attempt to forfeit the bond to pay the fine and court costs.

In Cause No. 50,575, the fact situation was similar except the principal Burton had served his jail time but had not paid his fine or 'court costs at the time set by the court. For the same reasons stated above, the court was not authorized to forfeit the bond.

In Cause No. 50,574, the defendant Alvarado was placed on probation. Unlike the McCallum case, Alvarado did not file a motion for new trial, nor did he give notice of appeal. When he did not pay his fine and court costs as required by the condition of probation, no motion to revoke probation was filed, but the court set the case on the docket and when Alvarado failed to appear, the original appearance bond was forfeited. Again we conclude that this was not a “subsequent proceeding had relative to the charge,” and the court was unauthorized to forfeit the bond under these circumstances.

The judgments are reversed and the causes remanded.

      . Article 42.03, Sec. 5, Vernon’s Ann.C.C.P., does permit the trial judge, where jail time has been assessed to provide that the punishment may be served during “off-work hours, or on weekends,” and further provides that the court may require bail to insure faithful performance. There was no such order in the instant case or cases to bring such provision into play.


author: ROBERTS, Judge. DOUGLAS, Judge MORRISON, Judge

text:
    Wilfred Donvin PERKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 49394.
    Court of Criminal Appeals of Texas.
    Oct. 22, 1975.

      Lavern D. Harris and Ronald R. Winfrey, Kerrville, for appellant.
    Glendon Roberts, County Atty., Bandera, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

In a unitary trial before a jury, the appellant was convicted, under Article 1149 of our former Penal Code, of aggravated assault with a motor vehicle done “in the performance of an unlawful act . such as would give justification for civil action for damages.” Punishment was assessed at $50.00 and ninety days, probated.

The record reflects that the complainant Cynthia Redman was riding a motorbike on Highway 16 near Bandera. She was passed by two cars and continued on her way, staying approximately five car lengths behind the second car. Presently, the first car, driven by appellant, pulled onto the shoulder of the road and was passed by the second car. As the complainant started to pass appellant’s car, the appellant turned his car off the shoulder and across the highway directly into the path of the complainant, who crashed into the car.

In his fifth ground of error appellant contends that the court erred in failing to grant his objection to the court’s charge. Specifically, appellant argues that the charge omitted an essential element of the State’s case as alleged in the information.

The information alleges:

“ . . .an aggravated assault with a motor vehicle upon the person of Cynthia Redman; and the said Defendant did then and there drive and operate said motor vehicle, to-wit, an automobile, upon a public highway, to-wit, Highway 16 and did then and there commit an aggravated assault with said motor vehicle upon the person of said Cynthia Red-man with negligence while being then and there in the performance of an unlawful act, to-wit, making an unlawful turn in said Highway when it was unsafe to do so, such as would give justification for civil action for damages, in that the said Defendant did then and there operate and drive said motor vehicle upon said Highway without then and there exercising proper care and caution in guiding said motor vehicle, that is, such a degree of care and caution in guiding said motor vehicle as a man of ordinary prudence would use under like circumstances, and Defendant did then and there cause said automobile to collide with and cause injury to the person of the said Cynthia Redman and cause injuries less than death to said Cynthia Redman who was then and there on said Highway.”

Appellant contends that the main charge of the court failed to require that the jury find that the acts alleged were “such as would give justification for civil action for damages.”

The record reflects that the main charge of the court contains no instruction on this issue. The record also reflects that appellant presented for inclusion in the charge six timely requested instructions; all of these were granted by the court. However, these requested charges were not incorporated in the body of the main charge. In sustaining objections to the record, see Art. 40.09(7), Vernon’s Ann.C.C.P., the trial court certified that the requested instructions “were attached to said Charge as a part thereof.” The record reflects that the court attached them in precisely the form in which they were presented.

The appellant then presented four timely objections to the charge, three of which properly presented the contention now urged; all four objections were denied.

Article 36.15 of our Code of Criminal Procedure provides in part:

“Any special requested charge which is granted shall be incorporated in the main charge and shall be treated as a part thereof, and the jury shall not be advised that it is a special requested charge of either party.” (Emphasis added)

In Seefurth v. State, 422 S.W.2d 931, 935 (Tex.Cr.App.1968), this Court held:

“These articles [Arts. 36.14 and 36.15, V.A.C.C.P.] are ones the Legislature had a right to enact, and are statutes which the Courts can neither ignore or emasculate. See Vinson v. State, 77 Tex.Cr.R. 546, 179 S.W. 574.
“These articles are mandatory and there must be strict compliance with their provisions.” (Citations omitted)

We hold that Article 36.15 is mandatory in all respects; it follows that the trial court in this case erred by failing to incorporate the requested charges and, second, by advising the jury that the charges were the requested charges of the appellant. We also hold that the attachments cannot be considered on appeal as part of the court’s charge. Art. 36.15, supra; compare Harris v. State, 453 S.W.2d 838, 839 (Tex.Cr.App.1970); Booth v. State, 499 S.W.2d 129, 135 (Tex.Cr.App.1973).

Therefore, we turn to an examination of the ground of error to determine whether the error was calculated to injure the rights of appellant so as to deprive him of a fair and impartial trial. Art. 36.19, V.A.C.C.P.

Appellant was charged under Article 1149 of our former Penal Code. It provides:

“If any driver or operator of a motor vehicle or motorcycle shall wilfully or with negligence, as is defined in the Penal Code of this State in the title and chapter on negligent homicide, collide with or cause injury less than death to any other person he shall be held guilty of aggravated assault . . .

In the “title and chapter on negligent homicide” of our former Code (Title 15, Chapter 14), Article 1230 provides:

“Homicide by negligence is of two kinds:
1. Such as happens in the performance of a lawful act; and
2. That which occurs in the performance of an unlawful act.”

Article 1231 defines “lawful acts” which constitute negligence for purposes of the chapter as follows:

“Whoever in the performance of a lawful act shall by negligence and carelessness cause the death of another is guilty of negligent homicide of the first degree. A lawful act is one not forbidden by the penal law and which would give no just occasion for a civil action.”

Article 1240 then describes the two kinds of “unlawful acts” which can constitute negligence within the meaning of the chapter. The first are “[s]uch acts as by the penal law are called misdemeanors.” The second are those acts, “not being penal offenses, as would give just occasion for a civil action.”

Since there was more than one possible statutory definition of negligence, it was necessary for the State to specify in the information which it would rely upon. Compare Nichols v. State, 136 Tex.Cr.R. 41, 44, 123 S.W.2d 672, 673 (1939); Seiffert v. State, 501 S.W.2d 124, 126 (Tex.Cr.App.1973). The appellant was entitled to notice of the “exact nature of the accusation against him so that he might know what the state would attempt to prove and what he would be required to meet upon the trial.” Nichols v. State, supra. This was especially true in this narrow area of statutorily-defined negligence of our former Code, with its close and difficult distinctions between “lawful” negligence on the one hand and “unlawful-civil action” negligence on the other.

These definitional problems can best be understood by comparing the information in this case with the lengthy information approved in Kirksey v. State, 136 Tex.Cr.R. 97, 123 S.W.2d 905 (1939), a negligent homicide case.

A comparison of these two informations reflects that the factual averments which were held to allege negligence done by a lawful act in Kirksey were virtually identical to those used to allege the “unlawful” negligence in this case. If we omit the allegations in each information which describe the extent of the injury to the complainant, it is obvious that the allegations of the two informations are interchangeable, except for the qualifying phrases which allege that the acts were lawful (in Kirksey) and that they were unlawful and would give justification for a civil action (in this case).

Thus, these qualifying phrases are obviously necessary to inform the defendant what proof he will have to meet upon trial. Nichols v. State, supra. Clearly, the information in this case properly alleged that the negligent acts were “such as would give justification for civil action for damages,” since this was a necessary element of the State’s case.

Our Code of Criminal Procedure provides that the State must prove the accused’s guilt beyond a reasonable doubt to the jury, which sits as the exclusive judge of the facts proved and the weight to be given to the testimony. Arts. 38.03, 38.04, Vernon’s Ann.C.C.P. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Accordingly, this Court has held that it is fundamentally erroneous for the trial court to instruct the jury to find an accused guilty when he has pleaded not guilty. Castoria v. State, 119 Tex.Cr.R. 193, 47 S.W.2d 325 (1932); Manning v. State, 66 Tex.Cr.R. 180, 145 S.W. 938 (1912).

More recently, in Mullaney v. Wilbur, - U.S. -, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Supreme Court held unconstitutional Maine’s requirement that a defendant charged with murder go forward and “establish by a preponderance of the evidence that he acted in the heat of passion on sudden provocation in order to reduce murder to manslaughter.” - U.S., at -, 95 S.Ct., at 1892. Relying heavily on In re Winship, supra, the Court held:

“[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.” - U.S., at -, 95 S.Ct., at 1892.

The holding in Mullaney v. Wilbur, like that in In re Winship, supra, stands for the same proposition as do Articles 38.03 and 38.04 of our Code of Criminal Procedure: The State must be required to prove every element of its case beyond a reasonable doubt or stand in violation of the Due Process Clause. Yet under the court’s charge in this case, the State was not required to prove to the jury the necessary justification for a civil action. What this means is that the appellant was required to go forward on this basic element of the State’s case and show, by some unstated standard of proof, that the facts did not in fact give justification for a civil action. Mulaney v. Wilbur, supra, is clear authority to the contrary.

Our own case law anticipated the holding in Mullaney. In Moore v. State, 140 Tex.Cr.R. 482, 145 S.W.2d 887 (1940), this Court held that the court’s charge in a criminal case may not place a greater burden upon the defendant than do the pleadings. Cf. Turner v. State, 462 S.W.2d 9, 22 (Tex.Cr.App.1970), dissenting opinion by Judge Onion.

In Moore, the appellant was charged with failing to stop and render aid. Specifically, the indictment alleged that the appellant did not render:

“all necessary assistance to the said Polly in this, to-wit: that the said Andrew Moore did then and there fail to stop and to carry the said Orvelle Polly to a physician and surgeon for medical and surgical treatment required by the said Orvelle Polly by reason of the said injury received as aforesaid . . . ”

However, the charge only required that the jury find that the appellant “did then and there unlawfully fail and refuse to stop and render all necessary assistance to the said Orvelle Polly.” None of the specific descriptive averments were included in the charge. This Court reversed, holding that the charge enlarged upon the indictment.

Similarly, under the charge in this case the jurors were permitted to find appellant guilty whether they found evidence of “lawful” negligence, as defined in Art. 1231, supra, or “unlawful” negligence, as charged in the information and defined in Art. 1240, supra, since no distinction was made in the charge between the two types of negligence. This was a clear enlargement upon the language of the information.

We conclude that the error was prejudicial and deprived the appellant of a fair and impartial trial. This conclusion is given further support by a record which reveals that after the verdict was announced in open court counsel for appellant examined several of the jurors, at least one of whom stated that she did not find that civil liability had been proved. Clearly, harm was shown.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge

(dissenting).

Appellant requested a charge and the court gave it as requested. There was no objection to the court’s attaching the requested instruction to the rest of the charge. Absent an objection this should not be reviewed.

Article 36.14, V.A.C.C.P., provides, in part, as follows:

“ . . . Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection. . . ”

Appellant did not comply with the statute. He was apparently satisfied with the way the charge was submitted. Rulings of the trial judge should be passed upon when the case is on appeal. The Court should not hunt for, and reverse upon, harmless unob-jected to errors.

The judgment should be affirmed.

MORRISON, Judge

(dissenting).

I join in my brother DOUGLAS’ dissent.

There is no fundamental error in the charge and no objection to the charge as given. No reversal should follow.

I further disassociate myself from my brother Roberts’ reasoning that the court’s charge enlarged upon the averments in the indictment. As I see it, the requested charge of the appellant complied with all averments contained in the indictment.

I respectfully dissent.

      . See note 7, infra.

      . The document containing the requested charges bore the style and number of the case and was titled, DEFENDANT’S SPECIAL REQUESTED CHARGES. It contained introductory and closing paragraphs urging that the requests be granted over the signature of appellant’s counsel. It also contained the court’s order on each of the charges over the signature of the trial judge.

      . Because of our disposition of this issue, we find it unnecessary to decide whether the enactment of Section 50A of Art. 6701d, V.A.C.S., impliedly repealed subdivision 1 of Art. 1240, supra. See 1972 Op.Atty.Gen., No. M-1150. Compare Lane v. State, 165 Tex.Cr.R. 222, 305 S.W.2d 595 (1957).

      . On the surface this may appear to be like a comparison between apples and oranges, since the instant case involves a conviction for aggravated assault. Our concern, however, is with the allegations supporting the varying definitions of negligence, insofar as negligence is an element common to both offenses.

      .See note 4, supra.

      . In Moore, as in the instant case, a proper objection to the charge was made in the trial court. Cf. May v. State, 146 Tex.Cr.R. 115, 171 S.W.2d 488 (1943).

      . The pertinent portions of the charge are as follows:
      “II.
      “In this case the information alleges that the Defendant was negligent (a) in making a turn on Highway 16 in Bandera County, Texas, when it was unsafe to do so and (b) in driving his motor vehicle upon said Highway without exercising proper care and caution in guiding said motor vehicle. Making a turn on said Highway when it was unsafe to do so or failure to exercise proper care and caution in driving said motor vehicle on said Highway is negligence. By the terms ‘proper care and caution’, as used herein, is meant the failure to exercise that degree of care and caution which a man of ordinary prudence would use under like circumstances.
      “III.
      “By the term ‘negligence’, as used herein, is meant the failure to exercise that degree of care and caution which a man of ordinary prudence would use under like circumstances.
      “IV.
      “Now if you find from the evidence beyond a reasonable doubt that on or about the 22nd day of January, 1973, in the County of Bandera, State of Texas, the Defendant, Wilfred Donovan Perkins, did operate a motor vehicle upon a public road, and did then and there, with negligence, that is, by making a turn in said road when it was unsafe to do so or by driving his said automobile on said road without exercising proper care and caution in guiding said motor vehicle, collide with and cause injury less than death to Cynthia Redman, as alleged in the information, then you will find the Defendant guilty and assess his punishment at a fine of not less than twenty-five dollars nor more than one thousand dollars, or by imprisonment in jail for not less than one month nor more than two years, or by both such fine and imprisonment.
      “Unless you find the foregoing facts beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant.”