author: ODOM, Judge. ROBERTS, Judge, PHILLIPS, Judge, YOLLERS, Judge.

text:
    Earl Van BUCKNER, Appellant, v. The STATE of Texas, Appellee.
    No. 53676.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1977.
    On Appellant’s Motion for Rehearing Oct. 4, 1978.

      Randolph L. Schaffer Jr., Houston, Court appointed on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., Robert A. Shults and Robert N. Burdette, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted by a jury of two counts of aggravated robbery. Punishment, enhanced under V.T.C.A., Penal Code Sec. 12.42(c), was assessed by the court at 35 years.

In his only ground of error appellant contends the trial court improperly admitted evidence of an extraneous aggravated robbery committed eleven days before the offenses charged in the indictment. It is conceded that identity was in issue, but appellant argues the extraneous offense lacked sufficient distinguishing characteristics in common with the primary offenses to render it admissible on identity. The record, however, reflects no objection on this ground. The only objection was that the evidence offered by the state showed an extraneous offense. The record reflects the following objection:

“[Defense counsel]: We feel that this testimony is not admissible for the reason that it shows an extraneous offense. However, in all candor I feel since the question of identity has come up — that would be the basis of our objection, if it does show an extraneous offense other than for which he’s being tried, Your Honor.
“THE COURT: All right. The objection will be overruled, . .”

The contention on appeal is at variance with the trial objection, and presents nothing for review. E. g. Sirls v. State, Tex.Cr.App., 511 S.W.2d 55. Further, if the objection were proper the extraneous offense was admissible under Ransom v. State, Tex.Cr.App., 503 S.W.2d 810.

An examination of the record reveals that only one judgment and one sentence were entered. These instruments, however, recite that appellant was found guilty of “Aggravated Robbery as charged in both counts of the indictment.” Although separate instruments for each count is the better practice, the instruments here are sufficient. Durham v. State, 557 S.W.2d 526 (1977).

The judgments are affirmed.

ROBERTS, Judge,

dissenting.

The majority holds that the objection at trial was not proper and that, even if the objection was proper, the extraneous offense was admissible under Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974). I dissent.

I.

The majority, by holding that the objection at trial does not comport with the objection raised on appeal, is in actuality holding that when an objection is based on a violation of a rule of evidence, the appellant must also orally argue that the exception^) to the rule are inapplicable in order to preserve error.

In Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977), delivered November 9, 1977, this Court stated that:

“The generally acknowledged policies of requiring specific objections are twofold. First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony. McCormick, Handbook of the Law of Evidence, Sec. 52, pp. 113, 115 (2d ed. 1972); 4 Jones, The Law of Evidence, Sec. 28:2, p. 276 (6th ed. 1972). In accordance with these policies, a number of exceptions to the general rule that a party cannot complain on appeal to the overruling of a general objection or an imprecise specific objection have been created. 1 McCormick & Ray, Evidence, Sec. 25, p. 25 (2d ed. 1956). Thus, where the correct ground of exclusion was obvious to the judge and opposing counsel, no waiver results from a general or imprecise objection. McCormick & Ray, supra.”

The general rule excludes extraneous offenses; the exceptions to the rule permit their introduction. Albrecht v. State, 486 S.W.2d 97, 101 (Tex.Cr.App.1972).

The error was called to the trial court’s attention when appellant’s counsel objected to the State’s introduction of an extraneous offense. The specific rule of evidence violated was stated. It was the State’s duty to urge the applicability of the exception, not the appellant’s duty to urge its inapplicability.

In Walls v. State, 548 S.W.2d 38 (Tex.Cr.App.1977), the defendant objected “to any testimony of this nature” and moved for a mistrial, stating, “this has nothing to do with the case in question.” We held that “. . . the objections were sufficient to apprise the court that appellant was objecting to the admission of the evidence of an extraneous offense whose materiality was not established . . . .” Id., at 40.

In Mallicote v. State, 548 S.W.2d 42 (Tex.Cr.App.1977), the defendant objected as follows:

“Your Honor, we would object to the testimony of this witness. One, the State, I think, is trying to get this in under, you know, a prior type offense showing a course of conduct, which this does not meet the requirements of the law . . . ”

We held that this objection raised the issue of the admissibility of an extraneous offense.

The majority requires scrupulous specificity by a defense lawyer in order to preserve the rights of the criminally accused. However, the majority condones extreme laxity by a defense lawyer when a claim of ineffective assistance is raised. Ewing v. State, 549 S.W.2d 392 (Tex.Cr.App.1977). The majority’s decision incorrectly magnifies the State’s inherent advantage in criminal prosecutions. Cf. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149 (1960). I would hold that the objection properly preserved the error.

II.

Moreover, the majority incorrectly concludes that if the objection was proper, the extraneous offense was admissible.

The record reveals that at approximately 11:30 p. m., on December 31,1974, two men entered a Denny’s Restaurant on Gulf Freeway in Houston. The two men approached the cash register, and one man drew a chrome-plated pistol from the left side of his waistband. The other man pulled a sawed-off shotgun out of his pants.

The two men informed the thirty to forty customers that there was a holdup, and told everyone to put their purses and billfolds on their tables. The two men then proceeded to stuff money, rings and watches from the customers and the money from the cash register into their pockets. The two men then told everyone to lie down in the booths or on the floor until after they had left.

The appellant was described by the complainants, two victims of the robbery, as approximately 6' 1", slim and weighing 150 pounds. He had a small goatee and wore brown trousers, a brown jacket, and either a brown or black cap. Both complainants identified the appellant at a pretrial lineup as the robber with the chrome pistol. They also made an in-court identification of the appellant.

The appellant took the stand and denied any participation in the offense. He insisted that on the night of the offense he was at a New Year’s Eve party at a relative’s house.

The State then attempted to rebut the appellant’s defensive theory by offering testimony concerning an extraneous robbery allegedly committed by the appellant at a Howard Johnson’s Restaurant eleven days prior to the robbery at Denny’s. After a hearing outside the presence of the jury, the trial judge, over a timely objection, admitted the testimony of Charles Portier.

Mr. Portier testified that on December 20, 1974, at approximately 9:00 p. m., he was employed as a cook at a Howard Johnson’s Restaurant at 6165 Gulf Freeway in Houston. He noticed the appellant talking to a girl at the cash register. When the manager approached the register, the appellant pulled a black handgun, and told them he wanted the money from the register. The girl placed the money in a paper sack and the appellant then took the girl and the manager to the manager’s office. The appellant then left. He encountered Portier outside and said that everything was “cool” and put his gun away. Portier described the appellant as having a full beard, moustache, long sideburns, a lot of hair, and wearing a cap.

It is well established that evidence of unrelated offenses is not generally admissible. This limitation is imposed not because such evidence is without legal relevance to the general issue of whether the accused committed the act charged, but because such evidence is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).

In the present case, the State contends that the evidence of the extraneous offense was offered to prove identity. The State asserts that although direct evidence of the appellant’s identity was offered, the appellant’s alibi raised the issue. Cf. Cameron v. State, 530 S.W.2d 841, 844 (Tex.Cr.App.1975).

In Cobb v. State, 503 S.W.2d 249, 251 (Tex.Cr.App.1973), this Court stated that:

“The rule is that evidence of another crime is admissible to prove identity if identity is in issue and if there is some distinguishing characteristic common to both the extraneous offense and the offense for which the accused is on trial. See Ford v. State, 484 S.W.2d 727 (Tex. Cr.App.1972); Lancaster v. State, 82 Tex.Cr.R. 473, 200 S.W. 167 (1918). We reiterate: (1) identity must be in issue; and (2) there must be distinguishing characteristics common to both the extraneous offense and the offense for which the accused is on trial.”

Since the appellant concedes that his identity was in issue, the task is limited to ascertaining whether there are distinguishing characteristics common to both the extraneous offense and the robbery at Denny’s Restaurant.

In Ford v. State, 484 S.W.2d 727, 729-730 (Tex.Cr.App.1972), this Court stated that:

“The common distinguishing characteristic may be the proximity in time and place of the extraneous offense to the offense for which the accused is being tried. Or, the common element may be the mode of commission of the crimes, or the mode of dress of the perpetrator, or any other element which marks both crimes as having been committed by the same person.” (Footnote omitted).

In Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974), this Court noted that the exact “modus operandi” need not be repeated.

In the present case, the robbery at Howard Johnson’s Restaurant was eleven days prior to the robbery at Denny’s Restaurant. Both robberies were at restaurants located on the Gulf Freeway in Houston. The two offenses were indeed proximate in time and place. See Mitchell v. State, 503 S.W.2d 562 (Tex.Cr.App.1974); Roberts v. State, 495 S.W.2d 894 (Tex.Cr.App.1973).

The method by which the extraneous and primary offenses were committed, however, are dissimilar. At Denny’s, the two perpetrators approached the cash register and drew their weapons, a chrome pistol and a sawed-off shotgun. They gave explicit orders to all the customers to place their valuables on their tables. They collected the valuables and stuffed them in their pockets. When the two men left, they ordered everyone to lie down until after they were gone. At Howard Johnson’s, the perpetrator initially talked with a girl at the cash register. When the manager approached, he pulled a black handgun. The perpetrator did not disturb the customers or inform them of the robbery and he had the girl put the money from the cash register into a paper sack. He then took the girl and the manager into the manager’s office before he left. When he left, he ignored the customers, and upon seeing Mr. Portier, he put his gun away and said that everything was “cool.”

Finally, the dress and appearance of the appellant during the primary offense and the dress and appearance of the perpetrator of the robbery at Howard Johnson’s reveal both similarities and dissimilarities. The appellant was identified by victims of the robbery at Denny’s as having a small goatee. He wore a cap, either brown or black, a brown jacket, brown pants and a shirt. The perpetrator of the robbery at Howard Johnson’s had a full beard, moustache, long sideburns, and a lot of hair. He likewise wore a cap. Neither the color of the cap nor the remainder of his clothes were developed in the record.

The only distinguishing characteristic common to both the extraneous offense and the primary offense, other than the proximity in time and place, is that the appellant, while at Denny’s, and the perpetrator of the robbery at Howard Johnson’s each wore a cap. While this Court has stated that

“. . the presence or absence of similarity is not entirely determinative of the admissibility of the extraneous offense,” Halliburton v. State, 528 S.W.2d 216, 219 (Tex.Cr.App.1975) (Opinion on Appellant’s Motion for Rehearing),

the similarities are not sufficient to sanction the introduction of the extraneous offense. Cameron v. State, supra. Cf. Collins v. State, 548 S.W.2d 368 (Tex.Cr.App.1976). After all, although “[a]ll evidence of a defendant’s commission of collateral crimes has some slight relevancy towards the likelihood of his committing an alleged crime, and especially so where the collateral crime is similar in nature to the one charged against the accused,” Mallicote v. State, 548 S.W.2d 42 (Tex.Cr.App.1977), “[t]he test for determining admissibility of any type of evidence is whether the probative value of such evidence outweighs its inflammatory aspects, if any.” Albrecht v. State, supra at 99.

I would hold that given the lack of common characteristics, the probative value of the extraneous offense was outweighed by its inflammatory nature. This cannot be characterized as harmless error, and the admission of the extraneous offense was reversible error. Ford v. State, supra.

For the foregoing reasons, I respectfully dissent from the disposition of this case by the majority.

PHILLIPS, Judge,

dissenting.

The majority concludes the objection at trial does not comport with the objection asserted on appeal. I do not agree. To hold that the objection “this testimony is not admissible for the reason that it shows an extraneous offense” is at variance with the objection that, notwithstanding that identity was in issue, the extraneous offense lacked sufficient distinguishing characteristics, ignores the basic rule that:

“Evidence of another crime is admissible to prove identity, when identity is in issue, only if there is some distinguishing characteristic common to both the extraneous offense and the offense for which the accused is on trial. [Citations omitted]” Ford v. State, 484 S.W.2d 727, 729.

As stated in Cobb v. State, 503 S.W.2d 249, 251:

“The rule is that evidence of another crime is admissible to prove identity if identity is in issue and if there is some distinguishing characteristic common to both the extraneous offense and the offense for which the accused is on trial. See Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972); Lancaster v. State, 82 Tex.Cr.R. 473, 200 S.W. 167 (1918). We reiterate: (1) identity must be in issue; and (2) there must be distinguishing characteristics common to both the extraneous offense and the offense for which the accused is on trial.” (Emphasis added.)

Having conceded that identity was in issue, appellant nonetheless objected at trial to the admissibility of the extraneous offense. Although not artfully worded, the objection could only be interpreted to mean the second requirement for admissibility, that there were no distinguishing characteristics common to the extraneous offense and the alleged offense, had not been met. Apparently the trial judge understood the objection, and this Court should be able to also.

En Banc.

ON APPELLANT’S MOTION FOR REHEARING

YOLLERS, Judge.

On original submission appellant’s sole contention was that the trial court erred in admitting testimony concerning an extraneous offense. At the trial the appellant stated his objection as follows:

“[Defense counsel]: We feel that this testimony is not admissible for the reason that it shows an extraneous offense. However, in all candor I feel since the question of identity has come up — that would be the basis of our objection, if it does show an extraneous offense other than for which he’s being tried, Your Honor.
THE COURT: All right. The objection will be overruled, . . . ”

On original submission it was held that the contention on appeal varied with the trial objection. It was also held that even if the objection was sufficient to preserve the complaint on appeal, the extraneous offense was admissible as an exception to the general rule for the purpose of establishing identity. Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974).

After reexamination of the record we conclude that the objection which was made by the appellant in the trial court was adequate to preserve this question on appeal. The record in the trial court reflects that a hearing was conducted by the court outside the presence of the jury to determine the admissibility of the testimony concerning the extraneous offense. This hearing occurred prior to appellant’s objection because the prosecutor, apparently in anticipation of appellant’s objection, requested permission to approach the bench and explain his intention to present the testimony of a witness concerning an extraneous offense. After the witness was examined outside the presence of the jury the court was preparing to call the jury in when defense counsel made the objection which is in issue. It appears that the objection was timely and that from an examination of the record it was apparent that the trial judge and the prosecutor were both well aware of the grounds upon which the objection was voiced. As this Court pointed out in Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977):

“The generally acknowledged policies of requiring specific objections are twofold. First, a specific objection is required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other testimony.”

It is apparent from this record that both of these qualifications were met and the objection was sufficient to preserve the matter for review on appeal.

In support of this ground of error the appellant also contends that there is a lack of sufficient distinguishing characteristics between the primary offense and the extraneous offense here offered to authorize the admission of this extraneous transaction.

This Court noted in Ransom, supra, at 812 that “evidence of an extraneous offense is admissible to prove identity, when identity is an issue, only if there is some distinguishing characteristic common to both the extraneous offense and the offense for which the accused is on trial.”

It was also noted in Ransom that the common distinguishing characteristics may be the proximity in time and place or the common mode of the commission of the offenses. See Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972).

In the ease at bar the record reflects that a person identified as the appellant along with a companion entered a Denny’s Restaurant located on Gulf Freeway in Harris County at approximately 11:40 p. m. on December 31, 1974. Appellant took a revolver from the left side of his belt or pants waistband and he and his companion, who had a sawed-off shotgun, took money from the cashier and all of the patrons. The patrons were directed to lie on the floor or in their booths. Appellant was described as having been dressed in brown and wearing a cap. One witness described appellant as having facial hair.

In the extraneous transaction a person positively identified as the appellant did on December 20, 1974, enter a restaurant of a Howard Johnson Motor Lodge on the Gulf Freeway in Harris County at approximately 9:30 p. m. The appellant used a pistol to rob the cashier and the pistol was placed, as he was leaving, by his right hand in the left side of his pants. He was also described as wearing a cap and having facial hair. The witness noticed that when appellant left the restaurant area and ran to the motor lodge the witness could see that there was a holdup there because everybody was lying on the floor.

Although it was not observed that appellant had a companion in the course of the robbery involved in the extraneous transaction the evidence presented a ready inference that a companion was keeping the employees lying on the floor of the motor lodge as appellant committed the robbery in the restaurant. Therefore in addition to the existence of notable distinguishing characteristics in the method employed in each offense it appears that both offenses were committed in restaurants, located on the Gulf Freeway in Harris County, at night, but during business hours. The offenses were committed only 11 days apart. The appellant was positively identified as one of the co-actors in each and was described as having facial hair, wearing a cap and brandishing a pistol in his right hand which he kept in the left side of his belt or pants waistband. The proximity in time and place as well as the common mode of commission of the offenses here are even more compelling than those addressed in Ransom, supra. The trial court satisfied itself that these attributes of similarity were sufficient to admit the testimony of the extraneous transaction. We agree that sufficient similarity was shown to meet the exception to the rule that extraneous transactions are inadmissible unless shown to be relevant on the issue of appellant’s identity in the trial of the primary offense. Even appellant’s objection shows that the issue of identity was raised in the trial of the primary offense.

No error was committed by the trial court in allowing the State to prove the extraneous transaction even though it showed an extraneous offense. Appellant’s motion for rehearing is overruled.

ODOM, J., concurs in the result.

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

      . The State contends that the extraneous offense was admissible on the issues of the appellant’s identity and his alibi. The appellant’s alibi concerned only the date of the commission of the present offense. His alleged participation in a crime eleven days earlier does not refute his alibi. The evidence, if relevant at all, was admissible only on the issue of identity. Ford v. State, 484 S.W.2d 727, 731 (Tex.Cr.App.1972).

      . My dissent in Ransom v. State, 503 S.W.2d 810, 814 (Tex.Cr.App.1974) is equally applicable to the present case.


source: Caselaw Access Project

author:
DALLY, Judge. TOM G. DAVIS, Judge,
      PHILLIPS, Judge,

license: Public Domain

text:
    Louis EMPY, Appellant, v. The STATE of Texas, Appellee.
    No. 55957.
    Court of Criminal Appeals of Texas.
    Sept. 20, 1978.

      William L. Garrett, Dallas, for appellant.
    Henry Wade, Dist. Atty., Fred C. McDaniel and Mary Ludwick, Asst. Dist. Attys., Dallas, for the State.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for theft of more than $20.00 but less than $200.00; the punishment is a $300.00 fine. Appellant contends that the judgment is void since, when he entered his plea of guilty without representation by counsel, there existed a possibility his punishment would include imprisonment.

Appellant’s contention finds apparent support in Ex parte Herrin, 537 S.W.2d 33 (Tex.Cr.App.1976), in which it was said:

“It is well settled that criminal defendants in misdemeanor cases are entitled to counsel if there exists a possibility that imprisonment may be imposed. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Walker v. State, 486 S.W.2d 330 (Tex.Cr.App.1972); Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972).”

This sentence is susceptible of misinterpretation. Let us examine the cases relied on for the statement quoted from Ex parte Herrin, supra, and let us compare the facts of Ex parte Herrin, supra, with the facts of this case.

There is no language in Argersinger v. Hamlin, supra, which requires that defendants in misdemeanor cases be represented by counsel merely because there exists a possibility that imprisonment may be imposed. The punishment assessed in that case included imprisonment for 90 days. Mr. Justice Douglas, who authored the opinion for the United States Supreme Court, said:

“We need not consider the requirements of the Sixth Amendment as regards the right to counsel where loss of liberty is not involved, however, for here petitioner was in fact sentenced to jail.”

Argersinger v. Hamlin, supra, holds that absent a knowing and intelligent waiver no person may be imprisoned for any offense unless at his trial he was represented by counsel, but it was also said in that case that:

“Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.
“The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefits of ‘the guiding hand of counsel’ so necessary when one’s liberty is in jeopardy.”

In Walker v. State, supra, a prior conviction was held void because the defendant had not been represented by counsel when tried for the misdemeanor offense of driving a motor vehicle upon a public road while intoxicated; however, on conviction for that offense imprisonment was a mandatory punishment. Art. 802, V.A.P.C. (1925). In Ramirez v. State, supra, a prior conviction was held void because the defendant had not been represented by counsel when he was tried for the misdemeanor offense of child desertion; however, on conviction for that offense imprisonment was a mandatory punishment. Art. 602, V.A.P.C. (1925, as amended, Acts 1959). Although not cited in Ex parte Herrin, supra, the same result was reached in Ex parte Webster, 497 S.W.2d 305 (Tex.Cr.App.1973), as in Walker v. State, supra.

In Ex parte Herrin, supra, the defendants had been tried on pleas of not guilty before a jury and the punishment actually assessed was 90 days’ imprisonment and a fine of $500.00.

In the instant case the appellant was tried before the court and the punishment assessed was a fine of $300.00. The trial judge knew of the holding of Argersinger v. Hamlin, and knew that when he accepted the appellant’s plea of guilty he could not assess punishment of imprisonment, but could only assess a fine if the appellant was unrepresented by counsel. In these circumstances, the court was not required to appoint an attorney to represent the appellant. Argersinger v. Hamlin, supra; and see Aldrighetti v. State, 507 S.W.2d 770 (Tex.Cr.App.1974); Lopez v. State, 507 S.W.2d 776 (Tex.Cr.App.1974); Ex parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.1974). We hold as we did in Aldrighetti v. State, supra; Lopez v. State, supra, and Ex parte Casarez, supra, that when only a fine is actually assessed in a misdemeanor case, the judgment is not void even though the defendant was indigent, was not represented by counsel, and was convicted under a statute which included imprisonment as a possible punishment.

The dissenting opinion appears to engage in a bit of studied sophistry by stating, “The facts in Hooper v. State, Tex.Cr.App., 557 S.W.2d 122 are similar to those in the instant case except that the defendant therein was assessed a jail term.” Since Hooper’s punishment was imprisonment for ninety days and the punishment in the instant case was only a fine the facts are quite dissimilar and the opinion in Hooper v. State, supra, and in this case are entirely consistent. The long quotation from Hooper v. State, supra, in no way supports the dissent since Hooper’s punishment was imprisonment for ninety days and the appellant’s here was by only a fine.

The dissenting opinions imply that the majority interpretation of Argersinger v. Hamlin, supra, is unique. However, it is the interpretation of Argersinger v. Hamlin, supra, by the United States Court of Appeals for the Fifth Circuit and the dissenters here that is out of line with the interpretation of courts in other jurisdictions. The majority opinion here is in agreement with the interpretation of Ar-gersinger v. Hamlin, supra, by the Supreme Courts of Illinois, Virginia, Florida, Idaho, and Mississippi as well as the United States Courts of Appeal for the Fourth and Tenth Circuits.

As succinctly put in Sweeten v. Sneddon, 463 F.2d 713 (10th Cir. 1972): “Argersinger forbids imprisonment without representation. It does not forbid trial without representation.”

The Supreme Court of Illinois in People v. Scott, 68 Ill.2d 269, 12 Ill.Dec. 174, 369 N.E.2d 881 (1977) said:

“We are unpersuaded by defendant’s argument that the mere possibility of incarceration upon conviction should trigger a defendant’s constitutional right to counsel for there exists no possibility of incarceration if counsel was not properly waived. We are not inclined to extend Argersinger and Morrisey merely because a defendant is charged with a statutory offense which provides for various sentencing alternatives upon conviction.”

See also Whorley v. Commonwealth, 215 Va. 740, 214 S.E.2d 447 (1975); Mahler v. Birnbaum, 95 Idaho 14, 501 P.2d 282 (1972); Nelson v. Tullos, 323 So.2d 539 (Miss.1975); Rollins v. State, 299 So.2d 586 (Fla.1974); Marston v. Oliver, 485 F.2d 705 (4th Cir.1973); Morgan v. Juvenile and Domestic Relations Court of Halifax County, Virginia, 491 F.2d 456 (4th Cir. 1974).

Art. 26.04, V.A.C.C.P., in part provides that when an accused is charged with a misdemeanor punishable by imprisonment and he is too poor to employ counsel, the court shall appoint an attorney to defend him. Although this statute antedates Argersinger v. Hamlin, supra, we construe it in light of Argersinger v. Hamlin, supra, to require the appointment of counsel only when the court knows it will assess punishment including imprisonment or when the trial is before a jury where the possible punishment authorized includes imprisonment. A defendant is not punishable by imprisonment if he is unrepresented by counsel unless he waives counsel. The concurring opinion of Chief Justice Burger and the concurring opinion of Mr. Justice Powell in Argersinger v. Hamlin, supra, discuss the limitation of punishment to a fine when a defendant without counsel is tried under a statute which provides punishment by both fine and imprisonment. They also discuss the difference between jury and non-jury trials in this respect. It is unnecessary to repeat these discussions in this opinion.

In this case there is nothing to indicate that the appellant was too poor to employ counsel. The transcription of the court reporter’s notes of the hearing on the motion for new trial is not properly before us for consideration. The portion of the record of which we may properly take cognizance shows that the appellant was a self-employed house painter twenty-eight years of age. He was married, had no children, and owned his home. He made one personal appearance bond which was forfeited and then made another appearance bond with a corporate surety. He made an appeal bond with corporate surety, and he was represented on a motion for new trial by an attorney who was not appointed. In these circumstances it was unnecessary for the court to appoint counsel under the provisions of Art. 26.04, V.A.C. C.P.

Moreover, there appears in this record an instrument designated “Waiver of Appointment of Attorney by'Defendant Entering a Plea of Guilty” which was signed by the appellant. The pertinent part of this instrument reads:

“Now comes the undersigned defendant in this cause and represents to the Court that he has no attorney, that he does not intend to employ counsel herein, and that he waives any right he may have, on application therefor, to have the court appoint an attorney to defend him in this cause;
“Defendant further represents to the Court that he desires to make immediate disposition of this case by here and now entering his plea of guilty herein, waiving trial by jury and submitting it to the Court on all issues of law and fact;
“Wherefore, premises considered, defendant prays the court to proceed immediately on the filing hereof to arraign him in this cause, to accept his said plea of guilty and waiver of trial by jury, to enter judgment thereon and, having entered the same, to immediately sentence him in the manner provided by law, waiving for said purpose every provision of law the effect of which would delay or arrest entry of judgment or imposition of sentence herein.”

To the extent that it is in conflict with the opinion here, Ex parte Herrin, supra, is overruled.

Appellant also contends that he was not properly admonished as to the consequences of his plea of guilty pursuant to Art. 26.13, V.A.C.C.P. The record does not include a transcription of the court reporter’s notes made when the appellant entered his guilty plea. However, it has been the law in this State for one hundred years that such admonishment need not precede the acceptance of a plea of guilty to a misdemeanor. This rule was first announced in Berliner v. State, 6 Tex.App. 181 (1879), which states, “The article in the statute, which says, ‘If the defendant pleads guilty, he shall be admonished by the court of the consequenses,’ refers entirely to felonies.” A more elaborate statement of the rule appears in Johnson v. State, 39 Tex.Cr.R. 625, 48 S.W. 70 (1898), where it is said, in reference to the Code of Criminal Procedure of 1895:

“Our statute with reference to felonies provides that, where a defendant pleads guilty, it must be in open court, and by the defendant in person, and he must be admonished by the court of the consequences of said plea, and no such plea shall be received unless it plainly appears that he is sane, and is uninfluenced by any consideration of fear, by any persuasion or delusive hope of pardon, prompting him to confess his guilt. And in such case there must be a jury impaneled to assess his punishment, and evidence submitted to enable them to decide thereon. See Code Cr.Proc. arts. 554, 555, 570 [Arts. 26.13, 26.14, 27.13, V.A.C.C.P. 1965] . But these provisions do not apply to misdemeanors. Code Cr.Proc. art. 571 [Art. 27.14, V.A.C.C.P. 1965], provides: ‘A plea of guilty in a case of misdemeanor may be made either by the defendant or his counsel in open court; and in such case the defendant or his counsel may waive a jury and the punishment may be assessed by the court, either upon evidence or without it at the discretion of the court.’ . . We know of no statute that requires any sort of warning to be given to a defendant in a misdemeanor case when he enters a plea of guilty.”

This Court has consistently adhered to the rule. Burton v. State, 112 Tex.Cr.R. 334, 16 S.W.2d 828 (1929); Letterman v. State, 146 Tex.Cr.R. 37, 171 S.W.2d 349 (1943); Bumguardner v. State, 147 Tex.Cr.R. 188, 179 S.W.2d 768 (1944); Brewer v. State, 147 Tex.Cr.R. 289, 180 S.W.2d 167 (1944); Townsel v. State, 162 Tex.Cr.R. 221, 283 S.W.2d 944 (1955); Foster v. State, 422 S.W.2d 447 (Tex.Cr.App.1967); Gallegos v. State, 425 S.W.2d 648 (Tex.Cr.App.1968); Whelan v. State, 472 S.W.2d 140 (Tex.Cr.App.1971); Buchanan v. State, 480 S.W.2d 207 (Tex.Cr.App.1972); Johnson v. State, 492 S.W.2d 955 (Tex.Cr.App.1973). The trial court did not commit reversible error by failing to admonish appellant, if it did fail to admonish him, pursuant to Art. 26.13, supra. Most judges follow a commendable practice in misdemeanor cases of carefully admonishing defendants of the consequences of their pleas whether they are or are not represented by counsel.

The judgment is affirmed.

TOM G. DAVIS, Judge,

dissenting.

I dissent to the majority’s holding (1) that when a fine only is imposed the defendant has no right to counsel, although the possible punishment could have included up to one year in jail; (2) the implication in the majority opinion that there is not a necessity of a knowing and intelligent waiver of counsel “since there is nothing to indicate that the appellant was too poor to employ counsel”; (3) that the instrument executed by appellant and appearing in the record before us reflects a knowing and intelligent waiver of counsel. This is an appeal from a conviction for theft over $20. V.T.C.A. Penal Code, Sec. 31.03(d)(3). Being a Class A misdemeanor, V.T.C.A. Penal Code, Sec. 12.-21(2), punishment can be up to one year in jail.

It is clearly established that, absent a knowing and intelligent waiver of counsel, no person may be imprisoned for any offense unless he was represented by counsel at trial. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). This Court has held that criminal defendants in misdemeanor cases are entitled to counsel if there exists a possibility that imprisonment may be imposed.

In Ex parte Herrin, 537 S.W.2d 33 (Tex.Cr.App.1976), we said:

“It is well settled that criminal defendants in misdemeanor cases are entitled to counsel if there exists a possibility that imprisonment may be imposed. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 520 (1972); Walker v. State, 486 S.W.2d 330 (Tex.Cr.App.1972); Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972).”

In Ex parte Olvera, 489 S.W.2d 586 (Tex.Cr.App.1973), we said:

“The Fifth Circuit Court of Appeals in Olvera v. Beto, 429 F.2d 131 (1970), found that
‘. . . adopting the proper perspective for judging the severity of the charge — the maximum penalty which the defendant may receive — it is apparent that all of appellant’s misdemeanor convictions are constitutionally void. In each case the appellant faced a maximum, potential penalty of a $1,000 fine and two years imprisonment.’ (Emphasis supplied.)”

In Thomas v. Savage, 513 F.2d 536 (5th Cir. 1975), cert. denied 424 U.S. 924, 96 S.Ct. 1135, 47 L.Ed.2d 333 (1976), the Fifth Circuit again reiterated the rule that it is the maximum possible punishment, not the sentence received, that determines the right to counsel. The court stated:

“At the time of his misdemeanor conviction in 1964 there is no doubt but that Thomas was entitled to appointed counsel if he was unable to afford counsel. Olvera v. Beto, 429 F.2d 131 (5th Cir. 1970); Matthews v. Florida, 422 F.2d 1046 (5th Cir. 1970). The necessity for counsel is judged by the maximum penalty the defendant may receive. Olvera v. Beto, supra. In this respect the cases of this circuit go beyond the Supreme Court’s decision in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), which would only require the appointment of counsel when a sentence of imprisonment is imposed. This right to counsel applies retroactively. Berry v. City of Cincinnati, 414 U.S. 29, 94 S.Ct. 193, 38 L.Ed.2d 187 (1973); Olvera v. Beto, supra. Here, since Thomas was faced with a possible maximum of two years imprisonment and/or a $1,000 fine, he was entitled to appointed counsel if indigent.”

In the recent decision of Potts v. Estelle, 529 F.2d 450 (5th Cir. 1976), that Court was faced with a case where a number of misdemeanor convictions had been used to impeach the defendant’s credibility at his Texas trial. A number of these convictions obtained without counsel did not result in any actual imprisonment. The Court first recognized that:

“In Argersinger the Supreme Court left open the question of Gideon’s [Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799] application to the situation where the maximum possible sentence for a particular offense is imprisonment, but the sentence actually imposed is only a fine or a term of imprisonment that is suspended.”

The Court then noted the rule in Thomas v. Savage, supra, and recognized that there was a conflict in the Circuit since the case of Cottle v. Wainwright, 477 F.2d 269 (5th Cir.) vacated on other grounds, 414 U.S. 895, 94 S.Ct. 221, 38 L.Ed.2d 138 (1973), held that Argersinger applied only where imprisonment had actually been imposed. Cottle was of course consistent with the decisions of this Court in Aldrighetti v. State, 507 S.W.2d 770 (Tex.Cr.App.1974), and Lopez v. State, 507 S.W.2d 776 (Tex.Cr.App.1974), relied on by the majority. The Court then reasoned:

“Confronted with the choice between Cottle and Thomas, we follow the latter. Accord Olvera v. Beto, supra; Matthews v. Florida, 422 F.2d 1046, 1048 (5 Cir.1970); James v. Headley, 410 F.2d 325, 329 (5 Cir.1969). The logic of our choice should be clear. By dint of the serious problems associated with the prosecution of misdemeanors, the great concern in Argersinger was with the salutary contributions to be made through the presence of a lawyer in the courtroom representing the interests of the accused. The issues that arise in misdemeanor prosecutions are often complex and beyond the usual competence of the accused. Whether a sentence of imprisonment is or is not ultimately imposed has little bearing on the complexity of those issues or the ability of the accused to defend himself in the circumstances. Indeed, it may be that the most reliable barometer of the potential problems that can arise in such prosecutions is the maximum penalty the legislature has seen fit to designate for a particular misdemean- or.
“Application of the Cottle rule, which looks to the punishment in fact assessed, can lead to curious practical results. For example, where co-defendants are tried together, the judge or the jury, as the case may be, sometimes imposes different sentences on the different co-defendants. Under the Cottle rule, a situation can arise where a co-defendant who is convicted but has his sentence suspended is not protected by Argersinger, but his co-defendant — convicted of the same crime — is not subject to later impeachment with his conviction because he is the recipient of a jail term. See Aldrighetti v. State, 507 S.W.2d 770, 773-75 (Tex.Cr. App.1974) (Onion, P. J., dissenting). The rule of Thomas avoids the type of situation depicted above and is, we believe, consonant with the concerns expressed by the Supreme Court in Argersinger. For these reasons, we hold that the necessity of counsel in appellant Potts’s prior misdemeanor prosecutions is to be judged by the maximum possible sentence he could have received in each of those prosecutions.”

Likewise, Professor Duke, writing in American Criminal Law Review, stated:

“Those who have read Argersinger as approving denial of appointed counsel merely because a jail sentence is not imposed are plainly wrong. Argersinger expressly did not decide the right to counsel where ‘loss of liberty is not involved.’ It should not be construed as if it held the right inapplicable in such a case.” [Footnotes omitted.]

Duke, The Right to Appointed Counsel: Argersinger and Beyond, 112 Am.Crim.L.Rev. 601, 607 (1975); see, e. g., Wood v. Supt. Caroline Corr. Unit, 355 F.Supp. 338 (E.D.Va.1973); Mills v. Municipal Court for San Diego Jud. Dist., 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 288 (1973).

Furthermore, Art. 26.04, V.A.C.C.P., provides in part:

“(a) Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him. . ” [Emphasis supplied.]

The majority’s rule requiring the trial court to determine the probable punishment prior to trial is neither fair to the State nor the defendant. The State is automatically barred from seeking jail time as a penalty, although within the proscribed punishment range, unless it has presented sufficient evidence to the court in advance of trial to prompt appointment of counsel. There are, of course, doubtless many classes of misdemeanors for which confinement is virtually never imposed, even for a confirmed repeat offender. These offenses can be isolated by class but this is a determination by offense rather than “case-by-case.”

Where the likelihood of confinement depends on the facts of the offense, the defendant’s record, and other individual criteria, it undermines the prospect of a fair trial to advise the trial judge of adverse evidence in advance of trial, and it places a time-consuming, if not impossible, burden on both the prosecutor and trial judge. Further, considering the volume of cases handled in many misdemeanor courts, the prosecuting attorney will himself know little or nothing about the defendant and his record prior to trial. See, Nutter, The Quality of Justice in Misdemeanor Arraignment Courts, 53 Journal of Criminal Law, Criminology and Police Science 215 (1962).

It is prejudicial to the defendant if the judge determines in advance that confinement is likely upon conviction and therefore appoints counsel, since a subsequent assessment of confinement by the court will appear to have been the product of the pretrial determination, and not the result of the evidence offered at trial. If a judge other than the one who appointed counsel accepts a plea or tries the case, the appointment of counsel by the first judge will appear to be a signal that confinement is appropriate, undermining the objectivity of the second judge. See generally, Duke, supra, at 612.

The judgment and sentence merely recite that the “State of Texas appeared by her Criminal District Attorney” and “Came the Defendant in person.”

The instrument executed by appellant insofar as it relates to waiver of counsel recites:

“Now comes the undersigned defendant in this cause and represents to the Court that he has no attorney, that he does not intend to employ counsel herein and that he waives any right he may have, on application therefor, to have the court appoint an attorney to defend him in this cause.”

There is no mention of a knowing and intelligent waiver of counsel in the judgment and sentence, nor will the instrument set out above support such a finding. When a defendant makes known his desire to represent himself, “he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. See Webb v. State, Tex.Cr.App., 533 S.W.2d 780.

The facts in Hooper v. State, Tex.Cr.App., 557 S.W.2d 122, are similar to those in the instant case except that the defendant therein was assessed a jail term. We find our opinion in Hooper to be dispositive of all questions presented herein aside from the issue of no jail term being assessed in the instant case. In Hooper, we said:

“The record is before us without a transcription of the court reporter’s notes. Although a docket entry in the record reflects that appellant is represented by retained counsel on appeal, no brief was filed in appellant’s behalf pursuant to Art. 40.09(9), V.A.C.C.P. There is no claim of indigency. Nevertheless, we find in the record unassigned error which should be reviewed in the interest of justice under Art. 40.09(13), V.A.C.C.P.
“The judgment and the sentence state that appellant was not represented by counsel at trial [footnote omitted] without a recital that there was a knowing and intelligent waiver of counsel. The Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), after discussing constitutional authorities, stated:
‘We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemean- or, or felony, unless he was represented by counsel at his trial.’ (Emphasis added.)
“In the instant case, there is nothing in the record before us to show a knowing and intelligent waiver by appellant of his right to be represented by counsel at trial (footnote omitted); we cannot presume such waiver from a silent record. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Consequently, the judgment must be reversed and the cause remanded. Baker v. State, 519 S.W.2d 648 (Tex.Cr.App.1975).” [Emphasis supplied.]

As in the instant case, the record was before us in Hooper without a transcription of the court reporter’s notes and there was no showing of indigency. Unlike Barrow v. State, Tex.Cr.App., 502 S.W.2d 162 (cited by the State), and Brown v. State, Tex.Cr.App., 505 S.W.2d 277, cases where there were no transcriptions of the court reporters’. notes, there is no finding in the judgment and sentence in this cause which will enable us to consider the question of whether we can presume that the court’s findings or orders were supported by evidence. Further, we cannot agree with the position urged in the State’s brief that the burden was upon appellant to perfect a bill of exception or agreed statement of facts when appellant was without the benefit of counsel at trial. We are not here confronted with a situation where the defendant makes a knowing and intelligent waiver of counsel, elects to represent himself, and thereby suffers the burdens and perils of self-representation. See Webb v. State, supra.

The record does not reflect a knowing and intelligent waiver of appellant’s right to counsel, nor can we presume such a waiver from the record before us. Carnley v. Cochran, supra; Hooper v. State, supra; Parker v. State, Tex.Cr.App., 545 S.W.2d 151; Baker v. State, Tex.Cr.App., 519 S.W.2d 648. I cannot agree that the fact that appellant received a fine obviated the necessity of a showing of knowing and intelligent waiver of counsel where the possible punishment could have included up to one year in jail. A procedure whereby the court determines it will not consider the full range of punishment proscribed for an offense prior to trial is foreign to our judicial system.

I dissent.

ONION, P. J., and ROBERTS, J., join this dissent.

PHILLIPS, Judge,

dissenting.

I wholly concur in the reasoning and conclusion of Brother T. Davis’s dissent, but further explication of constitutional and statutory construction principles is called for.

It has never been determined, as a matter of federal constitutional law binding upon this Court, whether a criminal defendant’s right to counsel via the due process clause of the Fourteenth Amendment is applicable to criminal defendants who do not suffer the pains of actual imprisonment. That particular question has been left open and anything appearing to the contrary in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), is dicta. The Sixth Amendment right to counsel has been considered a fundamental right essential to a fair trial which the states are required to accord criminal defendants under the Fourteenth Amendment. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The Supreme Court in Gideon overruled Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), a case in which it was decided that the right to counsel in capital cases as set forth in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), was not applicable across the board to non-capital prosecutions. The court in Betts, supra, concluded that the right to appointed counsel was not a fundamental right essential to a fair trial, but rather a matter of legislative policy. (As a tangential matter it is interesting to note that the Texas Legislature decided as a matter of legislative policy in 1965, two years after the decision in Gideon, supra, to place upon the courts in this State the mandatory duty of appointing a practicing attorney to defend any criminal defendant charged with a “misdemeanor punishable by imprisonment” when indigent. See Article 26.04, V.A.C.C.P.)

The cases dealing with the right to appointed counsel were concerned with the inherent disadvantage of pitting a layman, untrained in the law, against prosecutors who have the benefit of a legal training and the resources of the government on their side. This imbalance of advantage would exist regardless of the nature of the penalty assessed. Of some relevance to this consideration is the fact that even convicted mis-demeanants have -the right to appeal to this Court, provided their fine is at least in excess of $100.00 when imposed by a county court, a county criminal court, or a county court at law. See Articles 44.02 and 4.03, V.A.C.C.P. Yet, of what use is such a right when any errors the misdemeanants seek to have this Court review must be properly preserved? See Zillender v. State, Tex.Cr.App., 557 S.W.2d 515; Article 28.01(6), V.A.C.C.P.; McCall v. State, Tex.Cr.App., 540 S.W.2d 717; Milton v. State, Tex.Cr.App., 549 S.W.2d 190; Reynolds v. State, Tex.Cr.App., 506 S.W.2d 864; Writt v. State, Tex.Cr.App., 541 S.W.2d 424 (preserving illegal search and seizure errors); Articles 27.02(1), 27.08, 27.09, V.A.C.C.P.; American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598 (preserving error in charging instruments); Article 40.09(6), V.A.C.C.P.; Toler v. State, Tex.Cr.App., 546 S.W.2d 290 (creating a Bill of Exception); Duncantell v. State, Tex.Cr.App., 563 S.W.2d 252; Bouchillon v. State, Tex.Cr.App., 540 S.W.2d 319 (variance between trial objection and ground of error alleged on appeal fails to preserve error); Cowan v. State, Tex.Cr.App., 562 S.W.2d 236 (general trial objections preserve nothing for appeal); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); and Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (contemporaneous objection rule vis-a-vis federal post-conviction remedies). The foregoing citations are not an exhaustive survey of statutes and cases which set up rules for preserving error for purposes of appeal, but are indicative of the complex procedural matrix any criminal defendant faces, regardless of the ultimate punishment assessed. There has been no indication that these rules apply differently to pro se misdemeanor appellants. Thus, to deny criminal defendants charged with misdemeanors the assistance of appointed counsel when indigent effectively denies them their right to a meaningful appeal, not to mention the myriad benefits counsel can provide in the trial context itself.

An additional consideration which is specifically applicable to the case at hand is the collateral consequence that flows from appellant’s plea of guilty in this case, notwithstanding the penalty assessed. Under Y.T. C.A., Penal Code, § 31.03(d)(4)(C), the conviction of appellant upon his plea of guilty could be used subsequently for enhancement purposes. Without the presence of counsel to advise appellant of the law relating to his case and the consequences of his plea, his plea of guilty could not be knowingly and intelligently entered. Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).

I would hold, therefore, that as a constitutional principle any criminal defendant faced with a possible term of imprisonment, regardless of the charge’s classification, is entitled to the appointment of counsel when indigent. The penalty ultimately assessed would be immaterial.

Yet, we need not predicate our decision in this case upon a constitutional foundation in light of the expressed legislative position found in Article 26.04, V.A.C.C.P. No authority is cited for the unusual procedure by which the majority interprets a 1965 Texas mandatory statute by the dicta of a U.S. Supreme Court case occurring seven years after the enactment of the statute. It is even more difficult to understand why the majority would, by way of this unique method of statutory construction, substitute a subjective for an objective test for determining when a criminally accused indigent is entitled to the appointment of counsel. The pitfalls of this new “subjective” test are addressed by Judge T. Davis’s dissent, supra at 532.

Further, the majority’s novel method of statutory construction ignores the commonly accepted meaning of the word “punishable” in Article 26.04, V.A.C.C.P. Webster’s New International Dictionary, 2nd Edition, defines “punishable” as the “[Djeserving of, or liable to, punishment; capable of being punished by law or right; . . . .” Id. at 2013. We can readily assume that the Texas Legislature realized the difference between the words “punishable ” and “punish ed.”

Finally, using the decision of the United States Supreme Court in Argersinger v. Hamlin, supra, to decide the appropriate statutory construction of Article 26.04, V.A. C.C.P., ignores a rudimentary distinction between the decision-making process of the United States Supreme Court and the Texas Legislature. When developing constitutional doctrine, the United States Supreme Court must be cognizant that its rulings will be binding on all state courts pursuant to the Supremacy Clause of the United States Constitution. As a result, that Court’s constitutional decisions are carefully circumscribed to address only the issue before them on the available record. On the other hand, each state legislature is entitled to experiment with its rules of criminal procedure within the boundaries of the Bill of Rights. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (Goldberg, J., concurring opinion); Friendly, The Bill of Rights of the Code of Criminal Procedure, 53 Calif.L.Rev. 929 (1965). Article 26.04, V.A.C.C.P., reflects what this state’s legislature deemed to be the appropriate scope of a criminal defendant’s entitlement to the assistance of counsel. If the burden imposed by this statute is so great that the administration of justice in Texas is jeopardized, it is the responsibility of the legislature to take the appropriate actions to correct that evil. However, no showing has been made that the administration of justice in Texas is somehow jeopardized by Article 26.04, V.A.C.C.P. It should therefore apply as written.

In conclusion, I pose this question to the majority: If, as the majority holds, the rule is simply that in the event counsel is not afforded an indigent charged with an offense carrying possible imprisonment, the sentence cannot include imprisonment, then, who is to advise the indigent defendant of this critically important point of law in the event imprisonment is nevertheless imposed?

In light of the foregoing, I respectfully dissent.

      . In the recent case of Trevino v. State, Tex.Cr.App., 565 S.W.2d 938, we held the fact that absent counsel was retained rather than appointed did not authorize the trial court to proceed in his absence with a hearing on a motion for new trial.

      . Article 26.04, V.A.C.C.P., provides:
      “(a) Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him. In making the determination, the court shall require the accused to file an affidavit, and may call witnesses and hear any relevant testimony or other evidence.
      (b) The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.”


author: W. C. DAVIS, Judge. ROBERTS, Judge. VOLLERS, Judge,

text:
    Ex parte Nettie B. DANTZLER.
    No. 57612.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 7, 1978.
    Douglas H. Parks, Dallas, for appellant.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an application for writ of habeas corpus, Art. 11.07, Vernon’s Ann.C.C.P.

Petitioner was convicted on a guilty plea of two offenses of theft of property, $200 to $10,000, V.T.C.A., Penal Code, Section 31.03. On November 20, 1975, she was sentenced to two ten-year terms in the Texas Department of Corrections, probated for ten years in Causes F75-3559-JN and F-75-3282-JN. A motion to revoke probation, filed July 27, 1977, is pending in the 195th District Court.

The applicant alleges that she is entitled to relief as the District Court lacked jurisdiction and therefore' the convictions are void. In support of her contention, she argues that Section 34 “Welfare Fraud” of the special Public Welfare Act statute, Article 695c controls over the general V.T. C.A., Penal Code, Section 31.03.

In his findings of fact and conclusions of law, the trial court stated that, “Nowhere in the court’s records of these cases is there any evidence that the charges against petitioner were actually based on welfare fraud. The Court, however, after investí-gating petitioner’s cases has determined that petitioner’s cases were, in fact, based on welfare fraud. '. . . The Court finds that petitioner’s case is governed by Jones v. State, 552 S.W.2d 836 (Tex.Cr.App.1977) . . . and recommends the relief be granted.” We agree.

The application for writ of habeas corpus is granted.

The judgments are reversed and the indictments dismissed.

En banc.

OPINION

ON COURT’S OWN MOTION FOR REHEARING

ROBERTS, Judge.

On original submission, the Court was confronted with the issue of whether the appellant’s two convictions for theft of property pursuant to V.T.C.A., Penal Code, Section 31.03 were void. The gist of the appellant’s contention was that the offenses were, in reality, prosecutions for welfare fraud pursuant to Article 695c, Section 34, V.A.C.S. which, under our decision in Jones v. State, 552 S.W.2d 836 (Tex.Cr.App.1977), could not be prosecuted as theft pursuant to V.T.C.A., Penal Code, Section 31.03. On original submission we noted our agreement with the following quotation from the trial judge’s findings of fact and conclusions of law regarding the appellant’s application for a writ of habeas corpus:

“Nowhere in the court’s records of these cases is there any evidence that the charges against petitioner were actually based on welfare fraud. The Court, however, after investigating petitioner’s cases has determined that petitioner’s cases were, in fact, based on welfare fraud. . . . The Court finds that petitioner’s case is governed by Jones v. State, 552 S.W.2d 836 (Tex.Cr.App.1977) . . and recommends the relief be granted.”

However, on original submission we did not address the fact that the record before us does not contain a transcription of the court reporter’s notes from the appellant’s convictions. On the Court’s own motion, we have granted rehearing to consider the effect, if any, that the absence of the transcription of the court reporter’s notes from the appellant’s convictions will have on our original opinion.

The threshold question is whether this Court will consider the appellant’s contention. Essentially, the appellant is asserting an evidentiary contention. That is, the appellant’s contention is that the evidence adduced at the trials reveals that the prosecutions were for welfare fraud, not felony theft.

It is well established that the sufficiency of the evidence may not be collaterally attacked. Owens v. State, 540 S.W.2d 324 (Tex.Cr.App.1976); Gaines v. State, 501 S.W.2d 315 (Tex.Cr.App.1973). However, in Ex parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976), we created an exception to the foregoing rule which prohibits collateral attacks on the sufficiency of the evidence. In Moffett, we allowed the defendant to collaterally attack an order revoking the defendant’s probation where the revocation order was based on no evidence. We there held that since there was no evidence, not merely insufficient evidence, to support the order revoking probation, the defendant’s right to due process had been violated and that the violation of a defendant’s right to due process justified collateral attack by habeas corpus.

Since our decision in Moffett, we have twice addressed the issue of whether a defendant’s contentions fell within the purview of the exception to the general rule created in Moffett.

In Ex parte Murchison, 560 S.W.2d 654 (Tex.Cr.App.1978), the defendant was convicted of assault with intent to commit rape, enhanced by two prior felony convictions. On appeal, we dismissed the appeal. In an application for writ of habeas corpus, the defendant contended that the State’s proof of the first prior felony conviction showed on its face that the imposition of his sentence had been suspended and that he had been placed on probation. The defendant also contended that the State did not offer proof that his probation in the first prior felony conviction had been revoked and the execution of sentence imposed. Thus, the defendant contended that there was no evidence that the first prior felony conviction was final and therefore it could not be used for enhancement purposes. We there cited Ex parte Moffett, supra, and held that the defendant’s no evidence contention was in fact grounded on an allegation that he was denied due process of law and that the finality of the first prior felony conviction used for enhancement was subject to collateral attack by habeas corpus. We further noted, however, that,

“[T]he allegations contained in the petitioner’s application for habeas corpus are supported by the record from the appeal of the conviction for assault with intent to commit rape.” Ex parte Murchison, supra at 655.

Thus, it is clear that the availability of the record from the appeal of the conviction for assault with intent to commit rape, which contained a transcription of the court reporter’s notes at the defendant’s trial, was essential to our review of the defendant’s contention. Of course, we expressed no indication of the effect, if any, that the absence of the record from the defendant’s trial, including a transcription of the court reporter’s notes, would have had on our determination that the appellant was advancing a no evidence contention as opposed to an insufficiency of the evidence contention.

However, shortly after our decision in Ex parte Murchison, we delivered our opinion in Wolfe v. State, 560 S.W.2d 686 (Tex.Cr.App.1978). In Wolfe, the defendant was convicted for criminal mischief. The defendant was given a five-year probationary term. The defendant’s probation was subsequently revoked and he appealed that revocation. On appeal, the defendant contended that his conviction for criminal mischief was void. The defendant asserted that the only evidence in the record to support his conviction for criminal mischief was his signed judicial confession, that his judicial confession revealed that the offense was committed on December 21, 1977, but that the indictment, which was returned by the grand jury on February 4,1977, showed that the offense had been committed on December 21,1976. Thus, since the State is confronted with the burden of proving that the offense was committed prior to the return of the indictment, the defendant contended that there was no evidence to support his conviction for criminal mischief.

We there noted that “[t]he record before us supports the appellant’s contention” (emphasis in original). Wolfe v. State, supra at 688. However, we went on to state that:

“[t]he record before us does not contain a transcription of the court reporter’s notes from the trial on the appellant’s plea of guilty to the charge of criminal mischief. Without that transcription, we are unable to ascertain whether other evidence was introduced to support the appellant’s conviction. We therefore hold that the appellant’s contention does not fall within the purview of Ex Parte Moffett, supra, but is merely an impermissible attempt to collaterally attack the sufficiency of the evidence. Appellant’s contention is overruled.” (Footnote omitted).

Thus, in Wolfe, the absence of the transcription of the court reporter’s notes from the defendant’s trial for criminal mischief defeated his no evidence contention because, without the transcription of the court reporter’s notes, we could not ascertain what the evidence at trial, if any, demonstrated.

Applying the principles of Moffett, Murchison, and Wolfe to the present case, we note that the record before us does not contain a transcription of the court reporter’s notes from the appellant’s trials. Thus, we are unable to verify, from the records before us, that the appellant’s convictions were, in fact, based on welfare fraud. Therefore, we hold that the appellant has not advanced a no evidence contention. Rather, as was the situation in Wolfe, the appellant’s contention is merely an impermissible attempt to collaterally attack the sufficiency of the evidence. It is clear that our opinion on original submission was erroneous and we order it withdrawn.

The appellant’s requested relief is denied. It is so ordered.

En banc.

DOUGLAS, ODOM and DALLY, JJ., concur in the results.

VOLLERS, Judge,

concurring.

The real question presented by this application for writ of habeas corpus is whether or not a conviction which is valid upon its face can be attacked by habeas corpus on the proposition that the prosecution should have been originally instituted under a special statute rather than a general statute. It is appellant’s contention that the prosecution should have been brought for welfare fraud under Article 695c, Section 34, Y.A.C.S. instead of under the provision of Article 31.03, Y.T.C.A., Penal Code.

It should be noted that the allegations in the indictment are sufficient to allege an offense under Section 31.03 of the Penal Code, and there is no suggestion that the evidence does not sustain those allegations. Therefore, the question presented here is not one of “no evidence” to sustain a collateral attack upon a conviction. See Ex parte Moffett, 542 S.W.2d 184. Since the attack made here by the petitioner is not upon the sufficiency of the evidence and does not suggest that there is no evidence to support the indictment under which he was convicted, the question of whether or not a statement of facts is presented along with the application is immaterial.

I concur in the result.

      . The indictment alleged an offense pursuant to V.T.C.A., Penal Code, Section 31.03(a)(2), (b)(1) and V.T.C.A., Penal Code, Section 31.-03(d)(4)(A).

      . Article 695c, Section 34, V.A.C.S., states:
      “Sec. 34. Whoever obtains, or attempts to obtain, or aids or abets any person to obtain, by means of a wilfully false statement or representation or by impersonation, or by other fraudulent means:
      (1) Assistance, services, or treatment to which he is not entitled;
      (2) Assistance, services, or treatment greater than that to which he is justly entitled;
      (3)Or, with intent to defraud, aids or abets in buying, or in any way disposing of the property of a recipient of assistance without the consent of the State Department, or whoever violates Section 32 or Section 33 of this Act, shall be deemed guilty of a misdemean- or, and upon conviction thereof, shall be fined any sum not more than One Hundred Dollars ($100) or be imprisoned for not less than six (6) months, nor more than two (2) years, or be both so fined and imprisoned.”

      . See Article 44.34, Rule 12, Vernon’s Ann.C. C.P. (Supp.1978).

      . The appeal was dismissed by per curiam opinion delivered on April 24, 1974. See Cause No. 48,472. The dismissal was based on Articles 44.09 and 44.10, Vernon’s Ann.C.C.P.

      . McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974); Glenn v. State, 436 S.W.2d 344 (Tex.Cr.App.1969).


author: BRADBURY, Justice.

text:
    Thomas WORTHAM, Individually and as the Trustee of the Estate of Nettie S. Harper, Deceased, and as the Trustee of the Tiny S. Winsett and Willie Shaw Edwards Trusts, Appellant, v. Mildred BAXTER, Individually and as the Independent Executrix of the Estate of Tiny S. Winsett, Deceased, Appellee.
    No. 5162.
    Court of Civil Appeals of Texas, Eastland.
    Aug. 31, 1978.
    Rehearing Denied Oct. 12, 1978.

      Donald C. McCleary, Wynne & Jaffe, Dallas, for appellant.
    H. Campbell Zachry, Durant, Mankoff, Davis, Wolens & Francis, Dallas, for appel-lee.
   BRADBURY, Justice.

This is a summary judgment case regarding the disposition of assets under the will of Nettie Harper. Plaintiff, Mildred Baxter, and defendant, Thomas Wortham, both moved for summary judgment agreeing that the will was not ambiguous requiring a construction but a declaration of its provisions was required. Plaintiff's motion was granted. We affirm.

The pertinent provisions of the will are:

“HI.

C. I do hereby bequeath and devise unto my beloved sisters, Charlie Shaw Fifley, Tiny Shaw Winsett and Willie Shaw Edwards all of the right, title and interest that I shall own at the time of my death in and' to all jewelry, clothes, household goods, furniture, personal automobiles, books, pictures, paintings and other personal effects equally, share and share alike or to the survivors, equally, share and share alike', or to the survivor. If, at the time of my death all of my three beloved sisters have predeceased me, then all of the right, title and interest that I shall own at the time of my death in and to all jewelry, clothes, household goods, furniture, personal automobile, books, pictures, paintings, and other personal effects shall become a part of the rest, residue and remainder of my property and shall be disposed of as provided for in Section IV of this my Last Will and Testament.

IV.

All the rest, residue, and remainder of all the right, title, estate and interest of whatsoever character, which at the time of my death, I shall have in or to any and all property of whatsoever kind and wheresoever situate (intending by this general description to include all real property, all personal property, all choses in action, and everything or right whatsoever in, to, or upon which I shall have any title or claim), I give, bequeath, and devise unto Archie Fifley as Trustee upon and under the terms, conditions, provisions, and matters in this trust set out. I direct that no bond or security be required of him hereunder in such capacity as Trustee. In the event Archie Fifley shall fail or refuse to act as trustee for any reason or shall resign as trustee or shall die while acting as trustee, then and in that event, I hereby constitute and appoint Thomas S. Wortham as trustee and I direct that no bond or security be required of him hereunder in such capacity as trustee. In the event Thomas S. Wort-ham shall fail or refuse to act as trustee for any reason or shall resign as trustee or shall die while acting as trustee, then and in that event, I hereby constitute and appoint First National Bank in Dallas as Trustee. I direct that no bond or security be required of the said First National Bank in Dallas hereunder in such capacity as Trustee. In the event First National Bank in Dallas shall fail or refuse act as Trustee or shall resign, or as its successor shall fail or refuse to act or shall resign then and in that event, a trustee shall be appointed by a District Court of Dallas County, Texas, upon the application of any person, provided, however, that such trustee so appointed by the Court shall be a corporate trustee legally empowered to act as trustee, having an unimpaired capital of not less than $2,000,-000.00, and any such trustee so appointed by the District Court shall be deemed to be the successor trustee to the First National Bank in Dallas. The term, ‘trustee’, as used in this will shall be deemed to signify all trustees, whether original, one or more, substitute, or successor trustee acting hereunder at any given time.

B. The distribution of the net income and corpus of said trusts shall be as follows:

(1) Upon my death the trustee shall divide the properties comprising this trust into three shares of equal value, and such shares shall be named and designated as follows:
CHARLIE SHAW FIFLEY TRUST, thus being named after my sister, Charlie Shaw Fifley.
TINY SHAW WINSETT TRUST, thus being named after my sister, Tiny Shaw Winsett.
WILLIE SHAW EDWARDS TRUST, thus being named after my sister, Willie Shaw Edwards.
In making the division of the properties into the three trusts above mentioned, it is my will and desire that each trust be comprised of properties of equal value, and the trustee is expressly authorized and permitted to allocate to any particular trust, undivided interests in properties in which any one or more of the other particular trusts may also have and own undivided interests, whether of real or personal property. The sister of mine for whom any particular trust is named is and shall be the primary beneficiary of such trust, and may hereafter be referred to in this instrument, from time to time, as PRIMARY BENEFICIARY. The trusts thus created shall be handled and disposed of in the following manner:
(a) After my death, the trustee shall pay the entire net income of the trust bearing the name of such PRIMARY BENEFICIARY to such PRIMARY BENEFICIARY who is then living during the entire remaining life of such PRIMARY BENEFICIARY, it being my intention that said primary beneficiaries shall have and receive the net income from all of the property comprising the trust bearing the name of such PRIMARY BENEFICIARY as long as such PRIMARY BENEFICIARY may live.
(b) If at the time of my death CHARLIE SHAW FIFLEY is deceased then the trustee shall pay over and deliver in fee simple to ARCHIE FIFLEY all of the properties comprising the trust bearing the name CHARLIE SHAW FIFLEY TRUST and this trust shall then terminate as to such particular trust. If, at such time ARCHIE PIFLEY is not living then the trustee shall pay over and deliver in fee simple all of the properties comprising the trust to the child or children equally, share and share alike of the said ARCHIE PIFLEY. If, at such time the said ARCHIE PIFLEY is deceased and there is no child or children surviving the said ARCHIE PIFLEY, so that there is no one to take the trust properties comprising the trust bearing the name CHARLIE SHAW PIFLEY TRUST, then and in that event only, the properties comprising the trust estate bearing the name CHARLIE SHAW PIFLEY TRUST shall be divided in equal portions to the TINY SHAW WINSETT TRUST and the WILLIE SHAW EDWARDS TRUST created by this will and shall be handled and disposed of and distributed as a part of such trust as though originally included therein.
(c) If at the time of my death TINY SHAW WINSETT, the PRIMARY BENEFICIARY of the TINY SHAW WIN-SETT TRUST is deceased, or if the said TINY SHAW WINSETT shall be living at the time of my death and shall thereafter die, then and in that event only the properties comprising the trust estate bearing the name TINY SHAW WIN-SETT shall be divided in equal portions among the CHARLIE SHAW FIFLEY TRUST and the WILLIE SHAW EDWARDS TRUST created by this will and shall be handled, disposed of and distributed as a part of such other trusts as though originally included therein.
(d) If at the time of my death WILLIE SHAW EDWARDS, the primary beneficiary of the WILLIE SHAW EDWARDS TRUST is deceased, or if the said WILLIE SHAW EDWARDS shall be living at the time of my death and shall thereafter die, then and in that event only the properties comprising the trust estate bearing the name WILLIE SHAW EDWARDS TRUST shall be paid over and delivered by the trustee in fee simple to THOMAS S. WORTHAM if he shall be then living and if at such time he is deceased, then such trust properties shall be paid over and delivered in fee simple by the trustee to his children then living in equal amounts. If at such time any such child of the said THOMAS S. WORTHAM is deceased but has issue surviving, then the trustee shall pay over and deliver the portion which such deceased child would have taken to the surviving issue of such child in equal amounts and this trust shall then terminate as to such portions so paid over and delivered. In the event that THOMAS S. WORTHAM and all of his children and all of the issue of such children should die before taking so that there was no one to take the trust properties comprising the trust bearing the name WILLIE SHAW EDWARDS TRUST then and in that event only the properties comprising the trust estate bearing the name WILLIE SHAW EDWARDS TRUST shall be divided in equal portions among the TINY SHAW WIN-SETT TRUST and the CHARLIE SHAW FIFLEY TRUST created by this will, and be handled, disposed of and distributed as a part of such other trusts as though originally included therein.
(e)The trustee may pay such net income mentioned herein at such time and intervals as the trustee may set to the persons entitled to receive same, but the trustee shall be required to pay such net income at least quarter annually. It is also my will and desire and I do direct that the trustee, in trustee’s sole discretion, may, from time to time, pay to the person entitled to receive the income at such time, such sums out of the corpus of the trust estate as the trustee may believe, in trustee’s sole discretion, is required and necessary for the current living expenses of such person or persons, if the trustee, in trustee’s sole discretion, is of the opinion that the income from this trust estate, together with other income that such person might have, is not then sufficient to support such person, provided, however, that this provision giving the trustee discretionary powers to pay such person from time to time a part of the corpus for current living expenses shall not be construed as vesting any right, title, or claim of any kind or character on the part of any such person in and to the corpus of the trust estate. In the event of any emergency or unusual circumstances, the trustee, in trustee’s sound discretion, may pay to any such person such sums as may be necessary out of the corpus of such fund, it being my intention hereby to give the trustee the right of encroachment and invasion in and to the said corpus.”

Nettie Harper died September 19, 1964. Charlie Shaw Fifley predeceased her. Archie Fifley died November 6, 1969. Tiny Shaw Winsett died June 20, 1974, and Willie Shaw Edwards survives. Plaintiff, Mildred Baxter, married Archie Fifley November 11, 1957, and remarried after Archie’s death. Archie in his will named Mildred as primary beneficiary of his estate. By the provisions of Nettie’s will, Archie qualified as independent executor and as trustee of the three testamentary trusts and served until his death when Thomas Wortham, defendant, qualified as successor executor and trustee. Following Tiny Shaw Winsett’s death, defendant in his fiduciary capacity, transferred all of the assets of the Tiny Shaw Winsett Trust to the Willie Shaw Edwards Trust, taking the position that such was the intention of Nettie as Willie was the only surviving sister. Plaintiff argues that ½ of the assets in Tiny’s trust should have been transferred to her because on the death of Nettie, such ½ became a vested remainder interest in the Charlie Shaw Fifley Trust and Charlie having predeceased Nettie in death, that the assets in Charlie’s trust including the vested remainder interest passed to Archie and Archie then being owner of same with the power of disposition left such interest to plaintiff.

Defendant complains that the granting of plaintiff’s motion for summary judgment was erroneous in that the will did not as a matter of law grant Charlie’s trust a vested remainder interest in ½ of the assets of Tiny’s trust; if it did, that the defendant nevertheless made proper distribution; that Charlie’s trust never existed; that as a matter of law the intent of Nettie was for all of the assets of Tiny’s trust to be distributed to Willie’s trust; and that there was an ambiguity in the will. In his brief, he said there was no ambiguity.

The plan of disposition as provided for in Nettie’s will was the establishment at her death of three testamentary trusts. The primary beneficiary of each trust was a sister. One sister, Charlie, had a son, Archie; another sister, Willie, had a son, Thomas Wortham, the defendant; the other sister, Tiny, had no children. If Charlie did not survive Nettie and she did not so survive, then the assets in Charlie’s trust passed to Archie in fee simple. The provisions of the Willie Shaw Edwards Trust were similar. The provisions of the Tiny Shaw Winsett Trust were different, as Tiny had no issue. If Tiny did not survive Nettie, or if she did, then on her death, the assets of that trust were to be delivered ½ to the Charlie Shaw Fifley Trust and to the Willie Shaw Edwards Trust. Charlie did not survive Nettie, but was survived by her son, Archie. Tiny died after the death of Archie.

We must resolve how the assets of Tiny’s trust are to be distributed. Defendant, inter alia, argues that since Charlie’s trust had terminated at the time of Tiny’s death, it could not possess a vested remainder interest in ½ of the assets of Tiny’s trust and Archie could never have such a vested remainder interest. Defendant further argues that at the time of Tiny’s death, the only sister of Nettie surviving was Willie and it was Nettie’s intention that the interest in question go to such survivor. Our Supreme Court in Caples v. Ward, 107 Tex. 341, 179 S.W. 856 (1915) stated:

“A remainder is vested where there is a person in being who would have an immediate right to the possession upon the termination of the intermediate estate. It is an immediate right of present enjoyment, or a present right of future enjoyment, a fixed interest, with only the right of possession'postponed until the ending of a particular estate. 4 Kent. 202; Buf ford v. Holliman, 10 Tex. 560, 60 Am.Dec. 223. To use a common illustration of the books, where there is a grant of an estate to A. for life, and, after his death, to B. in fee, the remainder is a vested one, since the grant creates a present fixed interest, with the right of future enjoyment in B.”

See Guilliams v. Koonsman, 154 Tex. 401, 279 S.W.2d 579 (1955); Chadwick v. Bristow, 146 Tex. 481, 208 S.W.2d 888 (1948).

Defendant argues that any interest in Tiny’s trust passing to Charlie’s trust or to Archie was a contingent interest; that is, it was contingent upon Charlie’s trust being in existence at the time of Tiny’s death. Most of the cases cited by defendant are authority for the principle that the condition of survival must be incorporated into the gift of the remainder to constitute a conditional remainder. This is not the situation in the instant case. The vested remainder interest became vested without condition at the time of Nettie’s death, that is, there is a present ownership with right of possession delayed during the lifetime of Tiny. Defendant particularly relies on Caine v. Payne, 86 U.S.App.D.C. 404, 182 F.2d 246 (1950) and Coker v. Eckert, 369 S.W.2d 471 (Tex.Civ.App. — Fort Worth 1963, writ ref’d n. r. e.). Both cases are distinguishable from the instant case.

In both cases, the defendant involved had become entitled to an interest in the “remainder”, “contingent” upon a condition precedent, the condition being survival. The condition was built in with the disposition of the gift. We do not have such a condition in the instant case.

The Charlie Shaw Fifley Trust never came into existence because the intended beneficiary predeceased the testatrix. In Morrison v. Parish, 384 S.W.2d 764 (Tex.Civ.App. — Texarkana 1964, writ dism’d), the court said:

“. . . the existence of a beneficiary is an indispensable element of an expressed trust, and in the absence of a beneficiary the effort to create such trust aborts.”

Restatement, Second, Trusts § 112.

Nettie’s obvious intent, as expressed by the language of the will, was that if she was not survived by her sister, Charlie Shaw Fifley, there would pass to Archie the assets that would have been in the Charlie Shaw Fifley Trust. Had such trust come into existence, it would have held a vested remainder interest in of the assets in the Tiny Shaw Winsett Trust. ' The trust not having come into existence, said vested remainder interest passed to Archie by the provisions of Nettie’s will. Archie had the power to dispose of such interest by his will. Riedel v. Kerlick, 474 S.W.2d 508 (Tex.Civ.App. — Corpus Christi 1971, writ ref’d n. r. e.); Trimble v. Farmer, 157 Tex. 553, 305 S.W.2d 157 (1957).

All of defendant’s points of error have been considered and are overruled.

Judgment of the trial court is affirmed.