author: DANIEL, Justice.

text:
    IMPERIAL AMERICAN RESOURCES FUND, INC., Appellant, v. RAILROAD COMMISSION OF TEXAS et al., Appellees.
    No. B-6513.
    Supreme Court of Texas.
    Sept. 27, 1977.

      Scott & Douglass, Ivan D. Hafley and Frank R. Douglass, Austin, for appellant.
    John L. Hill, Atty. Gen., Linward Shivers, Asst. Atty. Gen., Graves, Dougherty, Hearon, Moody & Garwood, Dan Moody, Jr., and Robert C. Grable, Austin, for appellees.
   DANIEL, Justice.

This is a direct appeal from a trial court judgment upholding the validity of a Railroad Commission Rule 37 Order and denying plaintiff’s request for an injunction against the Commission and the holder of the Rule 37 Exception Permit from proceeding under the order.

The plaintiff, Imperial American Resources Fund, Inc., filed this suit against the Railroad Commission and BTA Oil Producers on October 12, 1976, attacking the validity of an order of the Commission dated September 20,1976, granting the Rule 37 Exception Permit for BTA to drill a gas well on its 644.16 acre JV-P Riggs lease in the Gomez (Ellenburger) Field in Pecos County. The Gomez Field Rules adopted in 1967 permitted one gas well on each 640 acres and provided that no well is to be drilled nearer than 1980 feet to any property or lease line. Under these Field Rules and the Commission’s Statewide Rule 37, exceptions to these distances may be permitted upon the Commission’s determination “that such exceptions are necessary either to prevent waste or to prevent the confiscation of property.”

BTA Oil Producers applied for an exception so that it might drill in the northeast portion of its lease at a location 1320 feet instead of 1980 feet from its north and east lines. It alleged that such location was necessary to penetrate the area of higher structure and good sand permeability and thus obtain a reasonable opportunity to produce the hydrocarbons under its lease. BTA further alleged that it would otherwise suffer confiscation through net uncompensated drainage by wells on adjacent tracts. Imperial American, owner of a 640 acre lease adjoining the BTA lease on the north, opposed BTA’s application for the exception. See map on following page for relative locations.

Imperial had one of the more prolific gas wells in the field at a location about midway between the east and west lines of its lease and about 3350 feet north of its common boundary with the BTA tract. The accompanying map, adapted from BTA’s Exhibit 1, shows the relative location of the BTA lease covering Section 7 of T. & St. L. RR BLK 146 and Imperial’s lease on Section 6 of the same survey. The arrow on Section 7 points to the location sought by BTA. The circle nearer the southeast portion of Section 7 indicates the location of a noncommercial gas well completed and subsequently abandoned by Texaco. Near the center of Section 6 is a circle marking the location of Imperial’s gas well. There are circles around producing gas wells on other Sections in the depicted area of the field. According to BTA’s witness, the higher permeability and areas of better gas wells are shown on this map within the two dashed lines which encompass the indicated part of BLK 203, most of Section 1, practically all of Section 6, the northeast portion of Section 7, the southwest portion of Section 5, most of Section 8 and portions of Sections 9, 10, 15, 22, 21, 20, and all of Sections 13 and 14.

The Commission’s order granting BTA’s application was based upon eleven findings of fact from which the Commission concluded that the granting of the exception “is necessary to afford applicant a reasonable opportunity to recover the Ellenburger hydrocarbons underlying applicant’s lease, or the equivalent in kind, and is necessary to protect applicant’s correlative rights and prevent confiscation of applicant’s property.” As heretofore stated, Imperial filed this suit alleging the order to be void and seeking to enjoin the Commission and BTA from proceeding thereunder. From a trial court judgment denying the relief sought, Imperial brings this direct appeal pursuant to Article 1738a and Rule 499a of the Texas Rules of Civil Procedure. We affirm the judgment of the trial court and base our opinion on the following disposition of the issues raised by this appeal.

Applicability of the Administrative Procedure Act

Imperial’s first point of error is based upon an allegation that the order prejudices the substantial rights of Imperial and is based upon unlawful procedure in that the findings of fact are not sufficient under the relatively new Administrative Procedure and Texas Register Act, which became effective on January 1, 1976. This is the first direct appeal from a Railroad Commission order of this nature which has been filed with this Court since the effective date of the Act.

Consideration of Imperial’s first point requires an examination of the general effect of the APA on Railroad Commission proceedings. All parties agree that the Act is applicable to the Railroad Commission and to judicial review of its orders. With a few stated exceptions, the Act applies generally to administrative agencies of the State. The Railroad Commission is not excepted. Appeal from its orders are still initiated as provided in Section 8 of Article 6049c, as follows:

“Any interested person affected by the conservation laws of this State relating to crude petroleum oil or natural gas, and the waste thereof, including this Act, or by any rule, regulation or order made or promulgated by the Commission thereunder, and who may be dissatisfied therewith, shall have the right to file a suit in a court of competent jurisdiction in Travis County, Texas, and not elsewhere, against the Commission, or the members thereof, as defendants, to test the validity of said laws, rules, regulations or orders. Such suit shall be advanced for trial and be determined as expeditiously as possible and no postponement thereof or continuance shall be granted except for reasons deemed imperative by the Court. In all such trials, the burden of proof shall be upon the party complaining of such laws, rules, regulation or order; and such laws, rules, regulation or order so complained of shall be deemed prima facie valid.”

Relevant portions of the Administrative Procedure Act (Article 6252-13a) are as follows:

“Sec. 16. . . .
“(b) A final decision must include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, must be accompanied by a concise and explicit statement of the underlying facts supporting the findings. .
“Sec. 19. . . .
“(d) If the manner of review authorized by law for the decision complained of is other than by trial de novo:
“(1) after service of the petition on the agency, and within the time permitted for filing an answer (or such additional time as may be allowed by the court), the agency shall transmit to a reviewing court the original or a certified copy of the entire record of the proceeding under review. .
“(2) any party may apply to the court for leave to present additional evidence and the court, if it is satisfied that the additional evidence is material and that there were good reasons for the failure to present it in the proceeding before the agency, may order that the additional evidence be taken before the agency on conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file such evidence and any modifications, new findings, or decisions with the reviewing court;
“(3) the review is conducted by the court sitting without a jury and is confined to the record, except that the court may receive evidence of procedural irregularities alleged to have occurred before the agency but which are not reflected in the record.
“(e) The scope of judicial review of agency decisions is as provided by the law under which review is sought. Where the law authorizes appeal by trial de novo, the courts shall try the case in the manner applicable to other civil suits in this state and as though there had been no intervening agency action or decision. Where the law authorizes review under the substantial evidence rule, or where the law does not define the scope of judicial review, the court may not substitute its judgment for that of the agency as to the weight of the evidence on questions committed to agency discretion but may affirm the decision of the agency in whole or in part and shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
“(1) in violation of constitutional or statutory provisions;
“(2) in excess of the statutory authority of the agency;
“(3) made upon unlawful procedure;
“(4) affected by other error of law;
“(5) not reasonably supported by substantial evidence in view of the reliable and probative evidence in the record as a whole; or
“(6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” (Emphasis supplied.)

It is apparent from the Act and from Section 8 of Article 6049c that orders of the Commission are still deemed to be prima facie valid and subject to review under the substantial evidence rule. The principal changes are that the Commission must include in its decision findings of fact and conclusions of law and judicial review is based on the record made before the administrative agency, except as to procedural irregularities mentioned in Sec. 19(d)3, supra.

Prior to the effective date of the Administrative Procedure Act (January 1, 1976), judicial review of a Railroad Commission conservation order was by trial in the district court upon a new record of evidence developed in the court without regard to the evidence heard by the Commission. The Commission’s order was tested by the substantiality of the evidence adduced in the district court trial. The applicable substantial evidence rule was stated in Trapp v. Shell Oil Company, 145 Tex. 323, 198 S.W.2d 424 (1946), and refined in Hawkins v. Texas Company, 146 Tex. 511, 209 S.W.2d 338 (1948).

This type of substantial evidence review of a newly developed record, which often was different from the evidence heard by the Commission, came under effective criticism. The Legislature first limited judicial review to the record made before an administrator in the Savings and Loan Act of 1963, Article 852a, Sec. 11.12(5)(b). The record under that Act is tested by the substantial evidence rule if an order of the Commissioner is contested. Lewis v. Jacksonville Building and Loan Ass’n, 540 S.W.2d 307 (Tex.1976); Gerst v. Nixon, 411 S.W.2d 350 (Tex.1966). Through enactment of the Administrative Procedure Act as to other agencies, the Legislature has made a far-reaching change in limiting judicial review under the substantial evidence rule to the records made before the administrative agencies. The result is that the agencies and the courts now consider the same evidence. Judicial review under the essential standards of the substantial evidence rule has been preserved, but the courts now test the substantiality of the evidence upon which an administrative agency made its decision. This furnishes more assurance of administrative due process and a surer means of determining whether an agency acted arbitrarily, capriciously, and without due regard to the evidence.

Imperial does not disagree with what has been said thus far about the APA. Neither does it assert error because the findings and conclusions were made initially by the examiner and then adopted by the Commission by incorporation as a part of its order. This practice was noted and approved by the Court in Auto Convoy Co. v. Railroad Commission, 507 S.W.2d 718 (Tex. 1974). Imperial complains that the findings are on ultimate issues, vague, and insufficient to support the commission’s conclusion that the order was necessary to prevent confiscation of BTA’s property. The relevant findings on this issue are:

“4. The Texaco USM No. 1-B well which was formerly completed as an El-lenburger well on Applicant’s lease, was incapable of producing sufficient quantities to recover the hydrocarbons underlying the lease. (Tr. 10, 12).
“7. There are good and poor producing wells offsetting BTA’s lease in every direction with the good wells being to the north and east of the proposed location. (BTA Exhibit 1, Imperial-American 1).
“8. Gas wells are producing from the Ellenburger formation on each side of BTA’s lease, and therefore BTA’s lease is presently suffering net uncompensated drainage of Ellenburger hydrocarbons away from the lease. (Tr. 24, BTA Exhibit 1).
“9. The requested location is a reasonable location 100 feet up-structure from an abandoned well towards an area of better productivity that would provide the applicant a reasonable opportunity to recover the hydrocarbons under the lease before they are drained to offset tracts. (Tr. 24, 70, 71, BTA Exhibit 1, 3).
“10. A regular location can be drilled on the BTA lease so as to encounter the Gomez (Ellenburger) Field at 19,000 feet below sea level which would be 100 feet structurally higher than the Texaco USM No. 1-B well that formerly produced on this lease, however, the location would be in the direction of poor wells and would not provide the applicant a reasonable opportunity to produce the hydrocarbons under the lease because of the lengthy period required to produce these hydrocarbons. (Tr. 29).”

We have carefully examined these findings and tested them against the more stringent requirements of Article 911b, Sec. 5a(d) (the Motor Carrier Act) and Article 852a, Sec. 11.11(4), (Savings and Loan Act), and decisions thereunder. Imperial asserts that the findings are insufficient to meet similar statutory requirements as interpreted and applied in Morgan Drive Away, Inc. v. Railroad Commission, 498 S.W.2d 147 (Tex.1973); Miller v. Railroad Commission, 363 S.W.2d 244 (Tex.1962); Thompson v. Railroad Commission, 150 Tex. 307, 240 S.W.2d 759 (1951); and Bay City Federal Savings and Loan Association v. Lewis, 474 S.W.2d 459 (Tex.1971). We disagree. These findings are clear and explicit. They are not couched in terms other than as findings; neither are they mere conclusions, references to, recitals or summations of the evidence, or otherwise insufficient for reasons set forth in the above cases. On the contrary, they are findings upon the material issues to be reviewed and tested under the substantial evidence rule.

The findings are not set forth in statutory language, and therefore it is not required that they be accompanied by a concise and explicit statement of the underlying facts supporting the findings. While some of the findings might be more artfully worded, they are substantially as would be expected from a trial judge or a jury in answer to controlling rather than incidental fact issues. We believe they meet the statutory requirement for separate findings of fact and that they are sufficient to support the Commission’s conclusions and order.

Evidentiary Support of the Findings

By its second point, Imperial insists that the foregoing findings are not supported by substantial evidence. This point would present difficulty if our review were limited to various isolated expert testimony, such as the reluctance of the expert witness for BTA to give positive opinions and estimates as to conditions in the sands 19,000 feet below sea level, especially with reference to the amount of possible drainage from the BTA lease which may have occurred or which might occur in the future. Our review, however, must be based on the evidence taken as a whole. Alamo Express v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815 (1958). As in most cases of this nature, the evidence offered by the opposing parties is conflicting; so much so that contrary findings might have been supportable by substantial evidence. The rule which is likewise applicable to our review of this case was stated in Auto Convoy Company v. Railroad Commission, supra, as follows:

“In a judicial review of a Railroad Commission order, it is well settled that the court does not substitute its judgment for that of the administrative agency. In this regard, the question for the courts is whether the contested order is reasonably supported by substantial evidence. In appeals, the burden is upon the complaining parties to show an absence of substantial evidence and that the orders are unreasonable and unjust to them. . . . Where there is substantial evidence which would support either affirmative or negative findings, the order will be upheld, even though the Commission might have arrived at a decision contrary to that which the court might have reached. The correct test is whether the evidence as a whole is such that reasonable minds could have reached the conclusion that the Railroad Commission must have reached in order to justify its action. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942); Shupee v. Railroad Commission, 123 Tex. 521, 73 S.W.2d 505 (1934). . . .”

The basic right of every landowner or lessee to a fair and reasonable chance to recover the oil and gas under his property was recognized in Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59,131 S.W.2d 73 (1939), and Railroad Commission v. Williams, 163 Tex. 370, 356 S.W.2d 131 (1961), with exceptions to spacing rules being proper when the applicants discharge their burden of proof that the exceptions are necessary to prevent waste or confiscation of property. See also the caveat in Halbouty v. Railroad Commission, 163 Tex. 417, 357 S.W.2d 364 (1962), with respect to exceptions which may be necessary for protection of small tract owners.

Having reviewed the entire record, we hold that the findings, conclusions, and order of the Commission are reasonably supported by substantial evidence. The evidence consisted of the undisputed physical facts and testimony from one expert witness called by Imperial and one called by BTA. It was undisputed that BTA’s Section 7 lease is entirely underlaid by a productive portion of the Gomez (Ellenburger) Field; that the BTA lease is surrounded on all sides by six producing gas wells; and that there is no producing well located on the BTA lease. It is further undisputed that before farming out the Section 7 lease to BTA, Texaco drilled a gas well on the lease in 1972, at a site south of BTA’s proposed location. This well was in an area of low permeability and had difficulty with salt water intrusion. When producing, it made about 500 Mcf of gas per day. Accumulated production from this well in approximately eighteen months was only about 139,500 Mcf of gas. The well was plugged and abandoned, and there has been no production from the tract in question since 1974.

Mr. Jerry Moritz, an engineer for BTA who appeared as its expert witness, testified that it would not be feasible to drill a well anywhere on the BTA lease except in the northeast portion on account of the low permeability existing in the sands underlying the remainder of the lease. It was shown that wells to the north and east of BTA’s Section 7 were much better producers than those to the south and west. Some of this testimony was based upon Texaco’s ill-fated experience with its abandoned well on the south half of Section 7. The physical facts, including the location of wells on adjoining Sections and their rates of production, constituted substantial circumstantial evidence in support of the finding that the BTA lease was being drained, especially by gas wells located to the north and east.

It was shown that Imperial’s well on Section 6, which adjoins BTA’s lease on the north, was producing between 20,000 to 25,-000 Mcf per day or in the range of 600,000 to 700,000 Mcf per month. Thus, the Imperial well was producing in one month more than four times as much gas as the Texaco well on the BTA lease produced during its entire eighteen months prior to abandonment.

Mr. Gillespie, Imperial’s expert, testified that the Imperial well would recover all of the gas reserves beneath its Section 6 lease, and admitted that it might drain a little, but not “much” from adjoining leases. His testimony practically negates any likelihood that a well drilled by BTA under its Rule 37 exception would prejudice substantial rights of Imperial, because of its ability to recover at a high rate of production all of its Section 6 reserves through its existing well. Mr. Gillespie stated that the proposed BTA well would have to produce more than 5,000 Mcf per day to drain gas from the Imperial lease.

Imperial insists that BTA failed to prove that drainage or confiscation would occur if the proposed well is not drilled, because the BTA expert would not testify definitely that drainage was occurring and because he admitted that a well drilled at a regular location could eventually produce the reserves beneath the BTA lease over a longer period of time. This was not all of this expert’s testimony. On the contrary, he testified that a regular location for a well 19,000 feet deep was not feasible because of the low production rate in this proven area of low permeability. As to drainage and the necessity for the exception permit in order for BTA to have a fair chance to recover its hydrocarbons, Mr. Moritz testified:

“Q. If the lease is being drained, is a well needed at the requested location to reduce or prevent this drainage?
“A. Definitely. As already established, the circumstances in the field, considering structure as well as the areas where one can expect to make a good producer, are such that it is difficult, and perhaps impossible, to justify drilling on Section 7 without the requested spacing exception. Therefore, if the lease is being drained, the granting of this exception and completion of a well in the El-lenburger at the requested location is reasonably necessary in order to prevent drainage away from BTA’s lease.
“Q. Then, Mr. Moritz, what conclusion do you reach about the situation faced by BTA here?
“A. Either the gas underlying Section 7 is not capable of being produced by any existing well, in which case a well on the lease is necessary to prevent waste; or, the gas underlying the section is being drained, in which case a well on the lease is necessary to protect the lease from such drainage. Perhaps the situation is such that both reasons apply. In any case, to permit BTA to drill a well on the lease, it is necessary that BTA be granted the requested exception so that the well can be located where there is a reasonable probability of making a good producer. The granting of the exception is necessary either to prevent waste or to prevent drainage, or for both reasons, and is certainly necessary to enable BTA to have a reasonable opportunity to recover the hydrocarbons underlying its lease, or their equivalent in kind.”

As.indicated, a review of the evidence as a whole shows that the order granting the Rule 37 Exception Permit was reasonably supported by substantial evidence.

Finding of Fact No. 11

Finally, Imperial challenges the Commission’s finding of fact No. 11 as improper and contrary to the APA and the Commission’s own Rules of Practice and Procedure. We agree. The gist of that finding was that numerous Rule 37 exceptions have been granted in the Gomez (Ellenburger) Field for the purpose of allowing wells to stay as high as possible above the water level at — 19,800 feet. The source of that finding was stated as “Rule 37 records of the Railroad Commission.” None of these records were placed in evidence at the hearing, and the parties were not notified of the specific records of which the Commission took notice. Thus, Imperial was not afforded an opportunity to contest the material so noticed as the basis for finding No. 11.

Prior to January 1, 1976, the effective date of the Administrative Procedure Act, there was no prohibition against the Railroad Commission’s use of data in its own records in deciding the cases before it. Alamo Express v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815 (1958). That ex parte procedure is one of the practices which the Legislature sought to prohibit with the APA requirement that notice be given of such official records which any agency intended to consider. Section 14(q) of the Act provides, in part, as follows:

“(q) In connection with any hearing held under the provisions of this Act, official notice may be taken of all facts judicially cognizable. In addition, notice may be taken of generally recognized facts within the area of the agency’s specialized.knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material officially noticed, including any staff memoranda or data, and they must be afforded an opportunity to contest the material so noticed. The special skills or knowledge of the agency and its staff may be utilized in evaluating the evidence.” (Emphasis supplied.)

The Commission’s own Rule 73, is similarly worded. The same method of judicial notice is permitted, but the law and the Rule now require notice to the parties of the material which will be judicially noticed so that any party to the hearing may contest the material. Both the law and the rule should be followed. If a showing of harm or prejudice is made because of failure of the Commission to give such notice, a reversal and remand would be required. Lewis v. Guaranty Federal Savings and Loan Association, 483 S.W.2d 837 (Tex.Civ. App.1972, writ ref’d n. r. e.).

We do not agree with Imperial that this procedural error requires a remand in- the present case. No harm or prejudice has been shown because of the Commission’s failure to give notice of the Rule 37 exceptions which it considered as a basis for finding No. 11. Imperial’s objection and exception to the finding was based on “no evidence in the record” to support the finding and because the finding is “irrelevant to this case.” It prayed that the finding be stricken. The objection was proper, and it should have been sustained. However, the objection did not go to failure to notify. Furthermore, Imperial admits in its brief that the finding “does not, per se, prejudice Imperial American since it is not necessary to the Commission’s Order and since it is really immaterial to the Commission’s consideration of the case . . . ,” but it contends that this “does not negate the possibility that Imperial American was prejudiced by the Commission’s consideration of this material.” The burden of showing harm or prejudice on account of failure to give notice of consideration of irrelevant records was upon Imperial. Having failed to make such showing, the error is treated as harmless and not sufficient grounds for reversal. Lewis v. Jacksonville Building and Loan Association, 540 S.W.2d 307 (Tex. 1976); Merchants Fast Motor Lines v. Newman, 236 S.W.2d 646 (Tex.Civ.App.1951, writ ref’d, n. r. e.).

Accordingly the judgment of the trial court upholding the validity of the Railroad Commission’s order is affirmed.

REAVLEY, J., not sitting.

      . See Rule 37(A)(1). Statewide Spacing Rule, Texas Railroad Commission Oil and Gas Division.

      . All statutory references are to Vernon’s Annotated Texas Civil Statutes unless otherwise noted. Rule citations are to the Texas Rules of Civil Procedure unless otherwise stated.

      . Article 6252-13a, referred to herein as the Administrative Procedure Act or the APA.

      . An identical requirement is also provided in Rule 91 of the Railroad Commission’s General Rules of Practice and Procedure adopted November 24, 1975.

      . For instance, see Reavley, Substantial Evidence and Insubstantial Review in Texas, 23 SW.L.J. 239 (1969) and Walker, The Application of the Substantial Evidence Rule in Appeals From Orders of the Railroad Commission, 32 Tex.L.Rev. 639 (1954).


source: Caselaw Access Project

author: DOUGLAS, Judge. ROBERTS, Judge,

license: Public Domain

text:
    Joseph I. McCARDELL, Appellant, v. The STATE of Texas, Appellee.
    No. 53627.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1977.
    Appellant’s Motion for Rehearing Denied Nov. 16, 1977.

      Joseph S. Presnail, III, Galveston, court appointed, for appellant.
    Ronald L. Wilson, Dist. Atty., and Michael J. Guarino, Asst. Dist. Atty., Galveston, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Joseph I. McCardell was convicted for burglary of a building. Punishment, enhanced under V.T.C.A., Penal Code, Section 12.42(d), was assessed at life. On appeal McCardell contends that the court should have charged on the defense of alibi and on a lesser included offense of criminal trespass; that V.T.C.A., Penal Code, Section 12.42, is unconstitutional; and that the “pen packets” of his prior convictions were improperly introduced. We overrule these contentions and affirm the conviction.

At about 11:15 p. m., August 21, 1975, police officers responded to a silent alarm from, and arrived within two or three minutes at, the Fact-O-Bake Paint and Body Shop in Galveston. They found that a large panel of the back door had been knocked out. Robert McCardell was found hiding on the floorboard of a car. Joseph McCardell, appellant, was on top of the spray room, about three and one-half feet below the roof of the building. He was covered with screening. The building had been locked by Rudy Aguilar, the owner, and no one was given permission to enter.

Herbert Lee Smith, called as a defense witness, testified that Joseph McCardell was at Herb’s Ghetto Inn at about 11:00 o’clock on the night in question when Robert McCardell called Joseph. After they talked, Joseph said that he was going to get his brother.

Robert McCardell testified that he committed and had been convicted for, and that Joseph had nothing to do with, the present offense. He related that he called Joseph at Herb’s Ghetto Inn and told him that he was working late at the paint and body shop for Rudy Aguilar. At Robert’s request, Joseph came for him. When Joseph arrived, Robert let him in the front door. Joseph asked: “Where was Rudy at? I told him that Rudy had gone across the street to the La Rumba to get a sandwich and told me to close up the place.” At about this time the officers arrived and Robert said that he “. . . had broke in the place” and told Joseph “to hide because the laws was coming in.” They both hid and were later discovered and arrested. The jury chose not to believe Robert’s testimony.

The request for the charge on alibi was properly denied. All of the testimony shows that appellant was in the burglarized building while the burglary was in progress. The testimony of Herbert Smith that appellant was at the inn and received a call from Robert does not raise the issue of alibi.

Appellant contends that the court erred in refusing to charge on a lesser included offense of criminal trespass. He relies upon Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976), which held that in a burglary prosecution the defendant was entitled to such a charge after he had testified that he entered the building without the consent of the owner but for an innocent purpose. That case is not in point.

All of the defensive testimony shows that appellant committed no crime at all because he was told that Robert was working for the shop owner in the building and Robert invited appellant to enter. There was nothing according to Robert’s testimony that put appellant on notice that he did not have the effective consent of the owner to enter. In short, the proof shows that appellant committed the offense of burglary. He was guilty or not guilty of that offense.

In McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974), this Court held: “. . .a charge on the lesser [included offense] is not required unless there is testimony raising such issue that appellant, if guilty, is guilty only of the lesser offense.” See 4 Branch’s Ann.P.C.2d, Section 1889, page 219. And see Torres v. State, 493 S.W.2d 874 (Tex.Cr.App.1973).

There is no testimony in the present case that would make appellant guilty of only the crime of trespass. No error is shown.

Appellant contends that V.T.C.A., Penal Code, Section 12.42, providing for enhancement of penalty where one has been previously convicted, is unconstitutional. That section is substantially the same as Article 63 of the former penal code. The same contention has been raised and overruled many times before. See Schultz v. State, 510 S.W.2d 940 (Tex.Cr.App.1974), and Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). It is again overruled.

Lastly, appellant urges that the court erred in admitting into evidence prison records of prior convictions not alleged in the indictment for enhancement because they showed extraneous offenses. Article 37.07, V.A.C.C.P., provides that such prior convictions are admissible even though they are not alleged in the indictment. No evidence of extraneous offenses other than those shown by the prior convictions was admitted. No error is shown.

The judgment is affirmed.

ROBERTS, Judge,

dissenting.

In affirming the appellant’s conviction the majority overrules appellant’s second ground of error and holds that the trial judge did not err by refusing to charge the jury on the lesser included offense. I believe that the majority’s disposition of this contention is not only wrong, but illogical. I would reverse.

I.

What follows is the opinion originally prepared and submitted to this Court by the Honorable Howard P. Green, Commissioner for the Court. I adopt it as Part I of my dissent.

“In a trial before a jury appellant was convicted of burglary of a building. V.T. C.A. Penal Code, Sec. 30.02(a)(1). Punishment, enhanced under the provisions of Y.T.C.A. Penal Code, Sec. 12.42(d), was assessed at life.

“Appellant in his second ground of error complains of the court’s refusal to submit to the jury instructions on the issue of the lesser offense of criminal trespass, as timely requested in writing. See Day v. State, [Tex.Cr.App.], 532 S.W.2d 302.

“The State’s evidence reflects that at about 11:15 p. m. on August 21, 1975, police officers, responding to a silent alarm, went to the Fact O Bake Paint and Body Shop in Galveston, arriving there within 2 or 3 minutes after the alarm sounded at the dispatcher’s office. They found a large hole in the back door of the building, caused by a panel of the door having been knocked out. A search of the interior of the building revealed Robert McCardell hiding on the floorboard of a car and appellant covered with screening on the top of the spray room, about 3½ feet lower than the roof of the building. Rudy Aguilar, the manager of the paint and body shop in charge of and having custody, control and possession of the building and its contents, testified that the panel of the back door had been knocked out after he locked the door when he closed up the building about 5:00 that afternoon. The building, after it was closed for the day, was not open to the public, and neither of the McCardells had his effective consent to enter it on the night in question. Aguilar also testified there were six or seven ears in running condition and a large amount of valuable tools and other equipment in the building.

“Appellant did not testify. Defensive testimony was given by two witnesses substantially as follows:

“Herbert Lee Smith, proprietor of Herb’s Ghetto Inn, Galveston, testified that at about 11:00 o’clock on the night in question appellant was in his bar when he received a telephone call from appellant’s brother Robert McCardell. Smith had answered the phone, recognized Robert’s voice, and called appellant to the phone. After talking a short while appellant left saying, as Smith remembered, he was going to get his brother.

“Robert McCardell, brother of appellant, testified substantially as follows: Prior to this trial, he had plead guilty to this burglary and received a twenty year sentence. He had previously been convicted of another burglary, for which he served time in the Texas Department of Corrections. Shortly before August 21, he went to the paint and body shop and asked its manager, Rudy Aguilar, for a job. He did not actually want a job there, but wanted ‘to see if there was some things up in there I wanted, I knew I could make me some money for.’ About 7:35 p. m. August 21 while across the street at a coffee shop, he called appellant at the Herb Ghetto Inn and told him he was working late for ‘Rudy’ and ‘to come and pick me up and take me home.’ He had earlier told appellant he was working there. He then went across the street to the paint and body shop and broke a hole in the back door. His intention was ‘to take some of the items out of the place and stash them in the alley, then later on that night when Joe (appellant) took me home I was going to get my brother’s car and come back and pick up the items early in the morning.’ After entering the building he went to the front door and opened it. Appellant was there, and asked ‘where was Rudy at? I told him that Rudy had gone across the street to the La Rumba to get a sandwich and told me to close up the place because he received a phone call.’ Appellant entered the building, the police officers arrived, and the witness told appellant he ‘had broke in the place’ and ‘to hide because the laws was coming in.’ They both hid, and were later discovered by police and arrested.

“The witness testified further:
‘Q Did Joe McCardell, your brother sitting here, have anything to do with that burglary down there?
‘A No, sir.
‘Q Whose idea was it?
‘A It was my idea.
‘Q He had nothing to do with it?
‘A No, sir.
‘Q When he came there that evening did he know you were burglarizing that place?
‘A No.’

“The principle of law has been well established by the decisions of this Court that if the evidence adduced at the trial raises an issue of fact, and a charge on that issue is properly requested, such a charge must be given on the fact issue. Day v. State [Tex. Cr.App.], 532 S.W.2d 302; Esparza v. State [Tex.Cr.App.], 520 S.W.2d 891; Stiles v. State [Tex.Cr.App.], 520 S.W.2d 894.

“In Day v. State, supra, we held that the offense of criminal trespass, V.T.C.A. Penal Code, Sec. 30.05, is a lesser included offense of all of the three types of burglary defined in V.T.C.A. Penal Code, Sec. 30.02(a)(1), (a)(2) and (a)(3). See Art. 37.09, V.A.C.C.P. We there stated the elements of burglary as defined in Sec. 30.02(a)(1) are

‘(1) a person
‘(2) without the effective consent of the owner
‘(3) enters a habitation or building not then open to the public
‘(4) with the intent to commit a felony or theft.’

“We enumerated the elements of criminal trespass as defined in Section 30.05 of the Penal Code as

‘(1) a person
‘(2) without effective consent
‘(3) enters or remains on the property or in the building of another
‘(4) knowingly or intentionally or recklessly
‘(5) when he has notice that the entry was forbidden or received notice to depart but failed to do so.’

“In this case, the evidence is sufficient to show that appellant knowingly entered a building not open to the public and remained therein without the effective consent of anyone authorized to give such consent. ' He was found hiding in the building and his brother Robert testified that appellant remained in the building after being told that Robert ‘had broke in the place’ and ‘to hide because the laws are coming in.’ These facts also are sufficient to constitute notice that his entry was unlawful. See Day v. State, supra. As stated in Day:

‘Therefore, the elements of criminal trespass, including “notice,” could be established by proof of the same facts necessary to prove the offense of burglary. The proof of additional facts would not be necessary, and the requirements of Art. 37.09(1), V.A.C.C.P. would be satisfied.’

“In the instant case, the evidence is sufficient to support the conviction for burglary of a building since there was evidence of each and all of the four above named elements of burglary. When a person is found in the house or building of another at night without the consent of the owner it is presumed that entry was for the purpose of committing theft. Shelty [Shelby] v. State [Tex.Cr.App.], 479 S.W.2d 31, at p. 41; Ana-ya v. State [Tex.Cr.App.], 500 S.W.2d 809. But such presumption is not conclusive, and although appellant did not testify, the defensive testimony of his witnesses, and particularly of Robert McCardell, raised a fact issue of appellant’s entry with intent to commit theft. Hence, such testimony was sufficient to raise the issue of criminal trespass, which offense does not include the element of intent to commit theft. The failure of the court to grant appellant’s request for instructions on the law of criminal trespass, timely filed and overruled by the court, constitutes reversible error. Day v. State, supra.

“Accordingly, the judgment is reversed and the cause is remanded.

II.

Although I agree with the reasoning and result of Judge Green’s proposed opinion, I also believe that there is language in the majority opinion which is not only incorrectly interpreted but also incorrectly applied. I am referring to the following language taken from McBrayer v. State, 504 S.W.2d 445, 447 (Tex.Cr.App.1974):

“Still further, merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising such issue that the appellant, if guilty, is guilty only of the lesser offense. See Hale v. State, 164 Tex.Cr.R. 482, 300 S.W.2d 75 (1957); Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (1952).”

I had always understood this language to mean that if any of the testimony — not just defensive testimony — shows that the appellant is guilty of the lesser included offense, then the trial judge must give a charge on that offense, provided that the appellant does not present testimony which unequivocally negates the existence of the lesser included offense. See Torres v. State, 493 S.W.2d 874 (Tex.Cr.App.1973).

Interpreted in this manner, McBrayer fails to support the majority’s disposition of the case. The majority fails to recognize that a defendant can raise the existence of a lesser included offense as a defensive issue. In such a case, the defensive issue is that the defendant is not guilty of the offense charged, but guilty of a lesser included offense. The fact that the defensive theory attempts to demonstrate guilt of a less serious offense, as opposed to a defense which attempts to negate guilt of any offense, should not affect whether a defensive charge is given. The only difference is that where a lesser included offense is raised as the defensive theory, the defensive charge will be in the form of a charge on the lesser included offense.

This view is amply supported by cases involving defensive charges in general. It is well settled that when any defensive theory is raised by the evidence the court must charge the jury on that defensive theory, regardless of “whether the evidence is produced by the State or by the defense, whether it is strong or feeble, whether it is unimpeached or contradicted or whether it is conflicting.” 31 Tex.Jur.2d, Instructions, Sec. 110, p. 660, quoted in Gauthier v. State, 496 S.W.2d 584, 585 (Tex.Cr.App.1973). This rule also applies when the evidence raises the issue of a lesser included offense. Day v. State, supra at 306.

However, where the defendant presents evidence which unequivocally negates the defensive theory, whether it be a defensive theory based on the negation of guilt or based on a lesser included offense, the charge need not be given. See Stephens v. State, 522 S.W.2d 924 (Tex.Cr.App.1975).

Since a lesser included offense can be a defensive theory, I believe that the language of the dissenting opinion on rehearing in Bailey v. State, 532 S.W.2d 316, 325 at 326-27 (Tex.Cr.App.1976), is applicable to the present case. That dissenting opinion relied in part on the following language from the early case of Riojas v. State, 8 Tex.App. 49, 50:

“In view of all the evidence elicited on the trial, it is more than probable that this defence, [sic] even under a proper instruction, would have had no appreciable effect with the jury, and would have been discarded altogether by them in reaching their conclusion. But that was not a question for the determination of the court below, and cannot be with this court on appeal. The provinces of court and jury are plainly and rigidly defined by law, and it is not for the former to act upon a belief that the latter cannot be affected by any particular portion of the evidence.” (Emphasis added).

Thus, the rule is that in the absence of defensive testimony which absolutely negates the lesser included offense, the trial court must charge on the lesser included offense if “any particular portion of the evidence” shows that the appellant was only guilty of that offense. Day v. State, supra. This is what the language of McBrayer means — or should mean: that the charge must be given if any part of the evidence shows that the accused was only guilty of the lesser offense, even though there is also strong evidence of his guilt of the greater offense.

The majority opinion states that “[tjhere is no testimony in the present case that would make appellant guilty of only the crime of trespass.” Ante, at 291. Thus, the majority is apparently construing McBrayer to mean that the evidence must exclude the possibility of the appellant’s guilt of the greater offense before a defensive charge on the lesser offense is required. This has never been, nor should it become, the law.

Moreover, the majority misapplies the law to the facts of the case. I therefore feel compelled to emphasize the portion of Judge Green’s proposed opinion which sets forth the testimony of Robert McCardell, the appellant’s brother. He testified to facts which constituted a denial that the appellant had committed burglary. However, this testimony clearly showed that appellant had committed criminal trespass by remaining in the building without proper consent after having received notice that his entry was forbidden and that he should leave the premises. There is a total lack of defensive testimony which negated the lesser included offense of trespass.

III.

In Montemayor v. State, 543 S.W.2d 93, 99 (Tex.Cr.App.1976) (Dissenting Opinion of Judge Douglas on State’s Motion for Rehearing), the writer of the majority opinion stated that “[A] good rule of evidence works both ways.” The State uniformly obtains indictments alleging the commission of a crime through different means in separate paragraphs. In these cases, the trial court is required to instruct the jury to return a verdict as to each count submitted to them. In each instance, the trial judge must charge the jury with the law applicable to each count. Yet this Court has not forced the State to elect which paragraph of a count they wish to proceed on. Thus, the State may obtain an indictment including the greater and lesser included offenses or the same offense charging the commission of the offense through alternative means.

The majority’s holding that a charge on a lesser included offense is required only where the evidence shows that the defendant, if guilty, is guilty only of the lesser offense is tantamount to holding that an accused is entitled to a defensive charge only when the defendant, if innocent, is innocent only because of that particular defensive issue. This reasoning would eliminate a defendant’s right to present alternative and inconsistent defenses and receive a defensive charge on each defense.

I cannot agree with the result the majority reaches. In my opinion, Judge Green’s proposed majority reaches the proper result, and the majority’s reliance on its interpretation of McBrayer is reliance upon bad law. Furthermore, I believe that the due process clause of the Fourteenth Amendment requires a trial judge to submit a defensive charge on every defensive theory raised by the evidence regardless of whether that defensive issue involves a “lesser included offense” or a “defensive issue.” I would overrule or clarify McBrayer v. State, reverse the judgment, and remand the case for a new trial.

PHILLIPS, J., joins in this dissent.

      .“Art. 37.09(1), V.A.C.C.P., provides:
      ‘An offense is a lesser included offense if:
      ‘(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

      . “This case was tried January 20, 1976 and the trial court’s ruling on the requested charge was made prior to the publication in the Southwestern Advance Sheets of the opinion in Day v. State, supra.”

      . See Daywood v. State, supra, cited in McBrayer.

      . See Article 37.07(l)(c), Vernon’s Ann.C.C.P. See cases cited at note 5, infra.

      . See Article 21.24, Vernon’s Ann.C.C.P.; McCaleb v. State, 537 S.W.2d 728 (Tex.Cr.App. 1976); Steele v. State, 523 S.W.2d 685 (Tex.Cr. App.1975); Section 3.02, V.T.C.A., Penal Code.

      . For example, assume the defendant ran over a person while he was exceeding the speed limit. Assume further that the person died. The State could allege a violation of Section 19.05(a)(1) [Involuntary Manslaughter] by alleging that the defendant recklessly caused the death of the deceased either through failing to maintain his brakes or by speeding. In such a case the trial judge would charge on both of the State’s theories. Would the defendant be entitled to object on the basis that he could be guilty, if at all, only upon one theory? This Court has not previously so held. See cases cited at note 5, supra.


author: GREEN, Commissioner.

text:
    Clifford Allen McCARTY, Appellant, v. The STATE of Texas, Appellee.
    No. 30246.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1977.

      Prank W. Sullivan, III, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins and Howard M. Fender, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury in 1958 appellant was convicted of murder with malice. Punishment was assessed by the jury at life. On appeal appellant was not represented by counsel, and his conviction was affirmed in McCarty v. State, 167 Tex.Cr.R. 164, 319 S.W.2d 338. It being uncontested that appellant was indigent at the time of his original appeal, we granted appellant this out-of-time appeal on February 9, 1977 in Cause No. 53,725.

Our examination of the record reflects that the factual summary set out in our original opinion in McCarty v. State, supra, is accurate and is as follows:

“The State’s testimony shows that on the night of the homicide the deceased was playing in a band at a night club on the Jacksboro highway near the City of Fort Worth. At the conclusion of the dancing around midnight, the deceased and Jack McCarty, a brother of the appellant, engaged in a fist fight on the dance floor. Witnesses called by the State testified that they saw no knife or anything in the hands of either combatant. While the fight was in progress appellant intervened and first cut the deceased in the back with a knife. Several spectators tried to stop the fight but were prevented when appellant would turn on them with the knife. During the fight appellant said he ‘was going to cut the deceased’s privates’ and began cutting him around the thighs. After the fighting ceased and the deceased was on the floor, appellant, as he was leaving the scene reached down and again cut the deceased over the eye.
“The deceased was carried from the scene to a hospital with a stab wound of the right chest, two stab wounds in the left thigh and one on the forehead and pronounced dead at 1:15 A.M. It was shown that the cause of death of the deceased was the knife wound in the chest.
“As a witness in his own behalf appellant admitted cutting the deceased on the back but denied cutting him in the chest or above the eye. Appellant testified that he entered the fight to aid his brother when his brother hollered ‘Cliff get him off of me — he’s cutting me’; that he saw a knife in the deceased’s hand, was scared and cut him to get him off of his brother but did not intend to kill him.”

In appellant’s first two grounds of error he contends the evidence is insufficient to support the conviction because there is a fatal variance between the allegations in the indictment and the proof adduced at trial and further contends he was arraigned under an improper indictment.

The record contains two indictments, both bearing identical cause numbers and both filed with the trial court on the same date. The indictment contained in the original transcript filed with this Court on September 13, 1958, omitting the formal parts, alleges that appellant “did then and there unlawfully, voluntarily and with malice aforethought kill Jimmy Garner by slashing, stabbing and cutting him with a gun .” (Emphasis added.) The other indictment filed with this Court by supplemental transcript on September 19, 1958, tracks the language of the indictment contained in the original transcript but substitutes the word “knife” for the word “gun.”

Appellant asserts that the supplemental transcript containing the correct indictment is not properly before this Court for review and therefore a reversal is mandated because the indictment in the original transcript alleges the murder weapon to be a gun while the proof shows the same to be a knife.

Art. 828, Vernon’s Annotated Code of Criminal Procedure in effect at the time of appellant’s original appeal, provides:

“The effect of an appeal is to suspend and arrest all further proceedings in the case in the court in which the conviction was had, until the judgment of the appellate court is received by the court from which the appeal was taken. In cases where, after notice of appeal has been given, the record or any portion thereof, is lost or destroyed, it may be substituted in the lower court, if said court be then in session; and, when so substituted, the transcript may be prepared and sent up as in other cases. In case the court from which the appeal was taken be not then in session, the appellate court shall postpone the consideration of such appeal until the next term of said court from which said appeal was taken; and the said record shall be substituted at said term as in other cases.”

Appellant contends that since the indictment contained in the original transcript was neither “lost or destroyed” the trial court had no authority to include any indictment in a supplemental transcript. We do not agree. As we stated in Morales v. State, 171 Tex.Cr.R. 124, 345 S.W.2d 537, in 1961, a case decided while Art. 828, supra, was in effect:

“The only means by which a transcript may be completed is by supplemental transcript duly prepared and forwarded by the clerk of the trial court direct to the clerk of this Court. 5 Tex.Jur.2d 515, Sec. 316; Huskey v. State, 157 Tex.Cr.R. 247, 248 S.W.2d 131.”

The indictment completing the transcript was duly prepared and forwarded in a supplemental transcript by the trial court clerk direct to the clerk of this court and is properly before us for review. The court’s charge reflects that appellant was charged under the proper indictment contained in the supplemental transcript. The charge provided in pertinent part:

. .if you find and believe from the evidence, beyond a reasonable doubt, that the defendant herein, on or about the 26th day of October, 1957, in the County of Tarrant and State of Texas, with malice aforethought, as that term is herein defined, did voluntarily kill the said Jimmy Garner by slashing, stabbing or cutting the said Jimmy Garner with a knife, as alleged in the indictment, you will find the defendant guilty of murder with malice, . . .” (emphasis added).

Further, there was sufficient proof adduced at trial to support the jury’s finding of appellant’s guilt of murder with malice by stabbing the deceased with a knife.

We observed in McCloud v. State, Tex.Cr. App., 527 S.W.2d 885:

“It is a cardinal rule of appellate procedure in this State that we must indulge every presumption in favor of the regularity of the proceedings and documents in the lower court.”

Also see Art. 847, Vernon’s Annotated Code of Criminal Procedure in effect at the time of appellant’s original appeal.

Indulging such “presumption of regularity,” we find and the record reflects that appellant was arraigned, tried, charged, and convicted under the indictment alleging the murder weapon to be a knife.

Grounds of error one and two are overruled.

In ground of error three appellant contends there is insufficient evidence to show that appellant inflicted the chest wound which caused the deceased’s death. It is uncontroverted that Garner’s death was caused by a “knife wound in the chest.” Although none of the eyewitnesses to the stabbing testified that they saw appellant stab the deceased in the “chest,” each testified that appellant stabbed the deceased in various parts of his body and that they observed no other wounds being inflicted upon the deceased, other than the knife wounds caused by appellant. We find this evidence sufficient to support a finding that appellant inflicted the fatal chest wound upon the deceased.

Ground of error three is overruled.

In grounds of error four and five appellant contends the trial court erred in admitting into evidence the hospital records of the admission, treatment and death of the deceased over appellant’s hearsay objection. Appellant raised the same error in his original appeal in McCarty v. State, 167 Tex.Cr.R. 164, 319 S.W.2d 338, and in ruling adversely to his contention we stated:

“The hospital records of the admission, treatment, and death of the deceased were sufficiently identified by the custodian of such records, and were admissible in evidence under the provision of Art. 3737e, Vernon’s Ann.Rev.Civ.St. over appellant’s objection that they were hearsay.”

Accordingly, grounds of error four and five are overruled.

In ground of error six appellant complains of improper jury argument.

The argument complained of is as follows:

“Yes, I think you have a right in considering the punishment that might be meted out, you have a right to consider the life the family life, the past of the man killed, I think you have a right to do that, I think if you were faced with a man whose record could be smeared all over the wall that you might consider that in the punishment that should be assessed. I think you have that right to.
“Attorney for Defendant: Your Honor, we’re are going to object to counsel’s argument and his last comment and ask the court to ask the jury not to consider it.
“The Court: I will sustain the objection, you are so instructed, ladies and gentlemen.
“Attorney for Defendant: I would like at this time that the Court declare a mistrial.
“The Court: I will overrule your motion.”

We note that following appellant’s objection the State’s Attorney explained to the jury that his comment, “I think if you were faced with a man whose record could be smeared all over the wall that you might consider that in the punishment that should be assessed . . .” did not allude to a prior criminal record of appellant, but referred to the fact that the deceased did not have a criminal record. Further, the trial court’s instruction to the jury to disregard the prosecutor’s initial remarks removed the harmful effects thereof. No reversible error is shown. Spaulding v. State, Tex.Cr. App., 505 S.W.2d 919; Ramos v. State, Tex. Cr.App., 419 S.W.2d 359.

The ground of error six is overruled.

We have reviewed the appellant’s contention raised in his pro se brief and find it without merit.

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, J., not participating.

      . The appellate procedure applicable to an out-of-time appeal is the appellate procedure in effect at the time of the original appeal or attempted appeal. Ex parte Young, Tex.Cr. App., 517 S.W.2d 288 and cases there cited. Since the original appeal in the instant case was in 1958, the Code of Criminal Procedure, 1925, as amended is applicable.


author: ROBERTS, Judge.

text:
    Harvey Allan SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 53085.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1977.

      Donald R. Scoggins, Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Hagler, Kelly Loving and Bob Hinton, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for murder. The trial court assessed punishment at life imprisonment in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. The record reflects that the appellant and the deceased were identified as being the driver and passenger respectively in a minor one-car accident in Dallas during the early morning hours of August 23, 1975.

Some hours later, a witness observed a car parked in a field next to his house. Upon hearing a scream, he telephoned the police. Officer W. E. Boone of the Garland Police Department responded to the call. When he arrived, he approached the vehicle parked in the field. He saw two people lying on the ground. One was the deceased “lying face down” and the other was the appellant who was next to her with his right arm over her neck. Both were covered with blood. The deceased had been beaten and stabbed in the neck. The police officer arrested the appellant and was unable to detect a pulse on the deceased.

A bloody knife was found two feet from the body. The victim’s broken necklace was found in the appellant’s shirt pocket. There was testimony that appellant’s knuckles were bruised and “puffy.”

Dr. Vincent DeMaio testified that the cause of death was the stab wound to the neck. He also stated that the deceased had suffered numerous facial bruises similar to those caused when someone is “beaten severely with the fists.” Also, intact human spermatozoa was found in the vagina of the deceased.

The appellant took the stand to testify in his own behalf. He said that he had a date with the victim on the night of the alleged murder. On that evening, he had met the deceased at a nightclub in Dallas. Later, they went to the apartment of Neal Hamilton where the appellant had been staying for some time. The appellant testified that he and the deceased had sexual intercourse at the apartment. Appellant testified that shortly thereafter Hamilton walked in and began arguing with appellant about appellant drinking Hamilton’s beer. Following this argument, the deceased and appellant left and went to the car. Appellant stated that Hamilton followed them, approached appellant, and knocked him unconscious. Appellant then testified in substance that Hamilton was present in the car with the appellant and the deceased and that Hamilton had committed the murder.

In rebuttal, Hamilton testified that neither the appellant nor deceased ever came to his apartment on the night of the murder. Hamilton’s son also testified that his father was present in the apartment during the early morning hours of August 23,1975.

Appellant’s sole ground of error complains of testimony admitted over objection as to the results of a blood and saliva test performed on appellant while he was incarcerated.

Prior to trial, the State filed a “Motion For Permission To Obtain A Sample Of Defendant’s Blood.” The motion was granted by the trial judge, and Sara Williams, a medical technologist, went to the Dallas County jail and performed the blood and saliva tests upon the appellant.

As a result of these tests, Williams testified that she was able to determine that appellant had blood type 0 and that he was a secretor. She further stated that a se-cretor is a person whose “body fluids . carries his blood group substance.” Williams testified that a male secretor’s seminal fluid would carry his blood group substance.

Williams had also received from Dr. De-Maio a vaginal smear taken from the deceased. She analyzed the smear and found that it contained blood type 0. This established that the seminal fluid contained in the smear came from an individual who was a secretor and had blood type 0, since the victim’s blood type was A.

Williams had also analyzed the blood found on various garments belonging to both the appellant and the deceased. She stated that she found blood group 0 on some of the garments that the deceased had been wearing. She said this could have been due to a blood group O secretor perspiring on these garments.

Dr. DeMaio also testified that from his autopsy of the deceased he could only say that she had been beaten and murdered. He stated that the presence of seminal fluid in the vagina of the deceased was as consistent with the theory of recent prior forcible rape as it was with that of recent prior consensual intercourse.

Officer Boone testified that when he found the victim “she was laying face down and [appellant] was laying on his . left side right next to her with his right leg thrown on her back and his right arm up around her neck.” The deceased’s blouse had been pulled up around her neck and her trousers had been unsnapped and partially unzipped.

Appellant complains that the administration of the blood and saliva tests and the admission of Williams’ testimony violated his Fourth, Fifth and Sixth Amendment rights. He complains that his Sixth Amendment right was violated because “. . . counsel was not notified to be

either in court at the time the Motion was filed or ruled upon . . . and secondly,

counsel was not aware [when] such tests were to be made.” Appellant argues that counsel could have objected to the taking of the saliva test, since the motion only specified that a blood sample was to be taken and that harm was present in that it was the saliva test which showed appellant to be a secretor.

The State’s motion to obtain appellant’s blood sample was based upon Rule 167a of the Texas Rules of Civil Procedure. Appellant complains on appeal that such rule is inapplicable. We agree. In Escamilla v. State (delivered May 18, 1977), 556 S.W.2d 796 (Tex.Cr.App.1977), we held that the taking of a blood sample is a search and seizure within the meaning of Article I, Section 9, of the Texas Constitution. Consequently, we further held that the State is required to comply with the provisions of Article 1.06 and Chapter 18, V.A.C.C.P.; a motion under Rule 167a, supra, is not enough to pass Texas constitutional muster.

Nonetheless, the trial court expressly stated for the record that he did not base his order allowing the State to obtain a sample of appellant’s blood upon Rule 167a, supra. However, the record does not reflect on what basis the trial court did grant the motion. We are of the opinion that there was no basis for the trial court’s order.

The taking of a defendant’s blood is a search and seizure under Texas constitutional law. Escamilla, supra; Article I, Section 9, supra. To seize blood a warrant must be obtained. Escamilla, supra. There can be no exigent circumstances that would dispense with the warrant requirement if the defendant is in custody. A person’s blood type remains constant throughout his lifetime. A search for blood cannot be based on the incident to a lawful arrest exception. It is not unlawful to possess blood. The possession of blood would not endanger the arresting officer. It would appear that the only exception to the warrant requirement in a search for blood would be that of consent. However,

“[cjonsent to search must be shown to be positive and unequivocal and the burden is upon the State to show by clear and convincing evidence that the consent was freely and voluntarily given. (Citation). This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. (Citations).” Escamilla, supra.

In the instant case, the record does not affirmatively reflect that such consent was given.

Since Article 18.02, V.A.C.C.P., does not list “blood” as one of the “grounds for issuance” of a search warrant, a search warrant may not be issued to search for this type of evidence. Consequently, we hold that absent a consent freely and voluntarily given, and a valid waiver of his Article I, Section 9 right to be free from unreasonable searches, a defendant may not be subjected to a blood test under Texas law, search warrant notwithstanding.

There was no basis for the trial court’s order granting the State permission to take a blood sample from appellant. The trial court committed constitutional error.

At oral argument, appellant for the first time complains that he was forced to take the stand in order to rebut the evidence that he claims was erroneously admitted. See, Nicholas v. State, 502 S.W.2d 169, 174 (Tex.Cr.App.1973, Opinion on State’s Motion for Rehearing).

Appellant probably took the stand in an attempt to explain away every incriminating fact. However, we deem the following significant: Appellant was charged with murder; his principal purpose in testifying was to point the finger at someone else; the presence of his seminal fluid in the vagina of the deceased was as probative of prior forcible rape — the State’s theory of the res gestae — as it was of prior consensual intercourse, according to Dr. DeMaio. We believe that Dr. DeMaio’s testimony, appellant’s testimony that he had intercourse with the deceased shortly before the murder, and the strong circumstantial evidence of appellant’s guilt combined to render harmless any evidence that the seminal fluid found in the vagina of the deceased might have been that of appellant. Cf., Stein v. State, 514 S.W.2d 927, 929 (Tex.Cr. App.1974); Warren v. State, 514 S.W.2d 458, 464 (Tex.Cr.App.1974).

Furthermore, the officer’s testimony that he saw both appellant and the deceased lying together “covered with blood” rendered harmless any evidence that the blood type found on some of the deceased’s garments was the same as that of appellant. Cf., Wood v. State, 511 S.W.2d 37, 47 (Tex. Cr.App.1974); Miles v. State, 499 S.W.2d 175, 177 (Tex.Cr.App.1973).

From the record before us, we conclude that the constitutional error committed by allowing the State to take a blood and saliva sample from the appellant was harmless beyond a reasonable doubt. Jackson v. State, 548 S.W.2d 685, 693 (Tex.Cr.App. 1977); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

The judgment of the trial court is affirmed.

DOUGLAS, J., concurs in the result for reasons set out in the dissenting opinion in Escamilla v. State, supra, on motion for rehearing.

      . Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), applies in its own factual setting. We are not dealing with the threatened “destruction of evidence.” Id., at 770, 86 S.Ct. 1826. A person’s blood type is constant.
      “It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the State’s minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.” Id., at 772, 86 S.Ct. at 1836.

      . We do not hold, however, that appellant waived his right to complain of the blood and saliva tests because he took the stand and testified. See, Nicholas v. State, supra; Alvarez v. State, 511 S.W.2d 493, 498 (Tex.Cr.App. 1974, Opinion on State’s Second Motion for Rehearing).


author: ROBERTS, Judge. DOUGLAS, Judge,

text:
    Lonnie Wayne DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 53247.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1977.
    Will Gray, Houston, for appellant.
    Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated robbery. As enhanced, the punishment was assessed by the jury at 30 years’ confinement in the Texas Department of Corrections.

The record reflects that appellant and two companions robbed at gunpoint the proprietor of a pool hall and domino parlor in Houston.

By supplemental brief, appellant urges fundamental error in that the charge “. . . authorized a conviction under every conceivable theory under V.T.C.A. Penal Code, Section 29.02 and Section 29.03, rather than limiting it to the theory alleged in the indictment.” Appellant argues that our recent decision in Robinson v. State, 553 S.W.2d 371 (delivered July 13,1977), is controlling. We agree and reverse.

Omitting the formal parts, the indictment in the case at bar alleged that the appellant

“. . . did then and there while in the course of committing theft of one watch and money owned by Paul Schiro, hereafter styled the Complainant, and with intent to obtain and maintain control of the property intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol.”
The court charged the jury “Now if you find from the evidence beyond a reasonable doubt that on or about the 12th day of January, 1975 in _County, Texas, the defendant, did, without the effective consent of Paul Schiro the owner, take and exercise control over the corporeal personal property of Paul Schiro to-wit, one watch and money from the possession of Paul Schiro with intent then and there to deprive Paul Schiro of said money, and that said defendant, in so doing, and with intent to acquire and maintain control of said watch and money intentionally, knowingly, or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts if you do so find, the defendant caused serious bodily injury to Paul Schiro or defendant used or exhibited a deadly weapon, to-wit, a pistol then you will find the defendant guilty of aggravated robbery as charged in the indictment.
“If you find from the evidence that the defendant committed the offense of robbery, as herein defined, but you have a reasonable doubt as to whether he caused serious bodily injury to Paul Schiro or as to whether he used or exhibited a deadly weapon in committing said robbery, then you will find the defendant guilty only of robbery, and not of aggravated robbery.
“If you have a reasonable doubt as to whether the defendant is guilty of any offense, that is, aggravated robbery or robbery, then you will acquit the defendant and say by your verdict not guilty.”

As can be seen, the indictment alleged robbery under V.T.C.A., Penal Code, Section 29.02(a)(2), by alleging that the appellant intentionally and knowingly threatened and placed the complainant in fear of imminent bodily injury and death. The indictment then alleged the aggravating factor “by using and exhibiting a deadly weapon, namely, a pistol.” V.T.C.A., Penal Code, Section 29.03(a)(2).

The instant indictment and charge are practically identical to those in Robinson, supra. In Robinson, we held

“This charge authorized the jury to convict the appellant as charged of aggravated robbery if they found, among other things, he intentionally, knowingly or recklessly caused bodily injury to the complainant and if they further found, beyond a reasonable doubt, the appellant caused serious bodily injury to the complainant. This was simply not alleged in the indictment. Further, the charge would have authorized a conviction for aggravated robbery if the jury found he intentionally, knowingly or recklessly caused bodily injury by using and exhibiting a deadly weapon. This was not alleged either. In fact, the charge authorized a conviction under every conceivable theory under V.T.C.A., Penal Code, Section 29.02 and Section 29.03, rather than limiting it to the theory alleged in the indictment.”

Accord Dowden v. State, 537 S.W.2d 5, 7 (Tex.Cr.App.1976), and the other authorities cited in Robinson, supra.

Because of the fundamental error we recognize, we need not discuss appellant’s other grounds of error.

The judgment is reversed and the cause is remanded.

DOUGLAS, Judge,

dissenting.

The majority reversed this conviction because the charge permitted the jury to find appellant guilty of aggravated robbery under a theory not alleged in the indictment. Article 36.19, V.A.C.C.P., governing errors in the charge, provides in part that “. . . the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. . . . ” Because no objection was made to the charge, and because no harm has been shown to appellant, the judgment should be affirmed.

V.T.C.A., Penal Code, Section 29.02, provides:

“(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
“(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
“(b) An offense under this section is a felony of the second degree.”

V.T.C.A., Penal Code, Section 29.03, provides:

“(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:
“(1) causes serious bodily injury to another; or
“(2) uses or exhibits a deadly weapon.
“(b) An offense under this section is a felony of the first degree.”

The indictment alleged, in substance, that appellant intentionally and knowingly threatened and placed the complainant in fear of imminent bodily injury and death by using and exhibiting a pistol while in the course of committing theft. The court’s charge authorized the jury to convict appellant of aggravated robbery upon a finding that the allegations in the indictment were true, and further authorized a conviction for the same offense upon a finding that appellant had caused serious bodily injury to appellant while in the course of committing theft. A fair evaluation of this charge, however, requires an evaluation in the context of the entire record.

The evidence presented at trial shows that the complainant, Paul Schiro, owned a pool hall and domino parlor in Houston. On January 12, 1975, appellant and two other men entered the establishment and robbed Schiro and several customers at gunpoint. While the robbers made the customers lie on the floor, appellant ordered Schiro to come to the front of the building. Appellant told him that he had been “casing” the establishment during the three months preceding the robbery.

Although appellant had his own pistol, he found Schiro’s .38 caliber revolver behind the counter and started waiving it in the air, saying that he was “badder than A1 Capone ever was.” The robbers then made Schiro lie on the floor in front of a confec-tionary counter. They tied his hands behind him and put a chair over his head before they left.

Schiro testified that he was afraid the robbers would injure or kill him, but that they did not hurt anyone. He further testified that he gave the robbers his money because they exhibited guns.

The record is clear that appellant placed the complainant in fear of his life by displaying and exhibiting a gun. There is no evidence whatsoever that anybody sustained a bodily injury during the robbery. While the jury charge is not a model of clarity, it could not have misled any jury under the facts of this case. No harm is shown. Moreover, “. -by failing to object to the jury charge”, appellant may have “. . . injected into the trial process the very type of error which the objection requirement was designed to avoid.” Henderson v. Kibbe, 431 U.S. 145, 157, 97 S.Ct. 1730, 1738, 52 L.Ed.2d 203, 214 (1977) (Burger, J., concurring).

No reversible error is shown. The judgment should be affirmed.


author: GREEN, Commissioner. DOUGLAS, Judge,

text:
    Thomas Walter SHAW, Appellant, v. The STATE of Texas, Appellee.
    No. 53783.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1977.

      Joe Bob Golden, Jasper, for appellant. Bill A. Martin, Dist. Atty. and Monte D. Lawlis, Asst. Dist. Atty., Jasper, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of burglary of a building. V.T. C.A. Penal Code, Sec. 30.02. Punishment was assessed at twenty years and a fine of ten thousand dollars.

A review of the appellate record discloses fundamental error in the court’s charge to the jury at the guilt stage, which error we should consider in the interest of justice. See Art. 40.09, Sec. 13, V.A.C.C.P.; Harris v. State, Tex.Cr.App., 522 S.W.2d 199; Morter v. State, Tex.Cr.App., 551 S.W.2d 715; Peoples v. State, 548 S.W.2d 893; Windham v. State, Tex.Cr.App., 530 S.W.2d 111.

The indictment charged that on or about June 23, 1975, in Jasper County, Texas, appellant

“did then and there enter a building without the effective consent of George Gee, the owner, and therein attempted to commit and committed theft ...” (Emphasis added).

V.T.C.A. Penal Code, Sec. 30.02, Burglary, provides in its pertinent parts:

“(a) a person commits an offense if, without the effective consent of the owner, he:
“(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; or “(2) remains concealed, with intent to commit a felony or theft, in a building or habitation; or (3) enters a building or habitation and commits or attempts to commit a felony or theft.”

From the above, it is clear that Section 30.02(a), supra, provides for three separate ways in which the offense of burglary may be committed. See, for comparison, Ex parte Cannon, opinion on motion for rehearing, Tex.Cr.App., 546 S.W.2d 266, at p. 271, et seq. The indictment charged appellant with burglary as the offense is provided for in 30.02(a)(3), supra. However, in its jury charge, after stating the provisions of Section 30.02(a)(1), (2), and (3), supra, and giving the definitions of certain terms used in that section, the court applied only the law as stated in (a)(1), supra, to the evidence, as follows:

“Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant Thomas Walter Shaw, on or about the 23rd day of June, 1975, in the County of Jasper, and State of Texas, as alleged in the indictment, did then and there without the effective consent of George Gee, the owner thereof, enter a building not then and there open to the public, with intent to commit theft, to wit: with intent then and there to obtain property unlawfully from George Gee, without the effective consent of George Gee the owner of said property, and with intent to deprive the said owner of said property, you will find the defendant guilty of the offense of burglary and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict ‘Not Guilty.’ ”

In Morter v. State, supra, the trial court, in applying the law to the facts, allowed the jury to convict if it found that the defendant committed other conduct proscribed by the applicable statute but not alleged in the indictment. In holding this to be fundamental error for which the judgment must be reversed, this Court quoted from Dow-den v. State, Tex.Cr.App., 537 S.W.2d 5, as follows:

“ ‘It is fundamental that a conviction for an offense cannot stand unless the charge authorized the jury to find a defendant guilty only for conduct constituting that offense (citation); the indictment alleged such conduct (citations); and the evidence at trial showed such conduct (citations).’ (Emphasis added).”

See also Peoples v. State, supra; Long v. State, Tex.Cr.App., 548 S.W.2d 897; Ross v. State, Tex.Cr.App., 487 S.W.2d 744.

A charge is fundamentally defective if it erroneously authorizes a conviction only on a theory not charged in the indictment. Morter v. State, supra; Peoples v. State, supra; Long v. State, supra; Ross v. State, supra. Although the indictment alleged burglary as provided for in subsection (a)(3) of Section 30.02, supra, the charge did not apply the law of that subsection to the facts; instead, it applied the law as provided in subsection (a)(1), supra, providing for a form of burglary not alleged in the indictment. It thus authorized a conviction only on a theory of burglary not alleged. As a result, fundamental error is presented for which the judgment must be reversed and the case remanded. Mitchell v. State, Tex. Cr.App., 543 S.W.2d 637; Davis v. State, Tex.Cr.App., 557 S.W.2d 303 (1977).

It is so ordered.

Opinion approved by the Court.

DOUGLAS, Judge,

dissenting.

The conviction should be affirmed. The proof shows that the appellant entered the building and committed theft. The indictment alleged that appellant “did then and there enter a building without the effective consent of George Gee, the owner, and therein attempted to commit and committed theft. . . . ”

The court instructed the jury that if appellant entered the building with intent to commit theft to find him guilty of burglary, otherwise to find him not guilty.

There was no objection to the charge. The indictment alleging “attempted to commit and committed theft” included “intent to commit theft” which was the basis of the court’s instruction to the jury.

The evidence shows that appellant was caught by the officers while he was in the process of committing the burglary.

Article 36.19, V.A.C.C.P., provides that if there is error in the instruction in the charge the conviction should not be reversed unless the error was calculated to injure the rights of a defendant. There was no such injury in the present case.


author: ODOM, Judge.

text:
    Ex parte Freddie Lee WASHINGTON.
    No. 55502.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1977.
    Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is a post-conviction application for habeas corpus brought pursuant to Art. 11.-07, V.A.C.C.P. Petitioner challenges the sixteen year term of confinement imposed upon his conviction in 1976 for the offense of escape. The indictment in that cause alleged the offense was committed on November 9, 1973, and alleged two prior convictions for enhancement. Arts. 353b, 63, V.A.P.C. The indictment did not allege the use of a firearm or other deadly weapon. See Art. 353b, supra. The state waived one of the enhancement paragraphs, and petitioner entered judicial confessions admitting the escape and the prior conviction alleged in the remaining paragraph. The court found appellant guilty of escape committed on November 9, 1973, found the allegation of the prior conviction true, and assessed punishment at 16 years.

The prior conviction alleged in the indictment was for theft, and would not support enhancement of punishment under Article 62, V.A.P.C. The maximum punishment allowable for this conviction under Article 353b, V.A.P.C., would be five years. It appears from the record before us that punishment was assessed under V.T.C.A., Penal Code Sec. 12.42(a). The record does not contain any election by petitioner to be punished under the 1974 Code. Section 6(a, c) of the Penal Code Act (Acts 1973, 63rd Leg., ch. 399, Sec. 6(a, c)) provides:

“(a) Except as provided in Subsections (b) and (c) of this section, this Act applies only to offenses committed on or after its effective date, and a criminal action for an offense committed before this Act’s effective date is governed by the law existing before the effective date, which law is continued in effect for this purpose, as if this Act were not in force.
* * * * * *
“(c) In a criminal action pending on or commenced on or after the effective date of this Act, for an offense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court before the sentencing hearing begins.”

It thus appears from the record before us that petitioner should have been punished under Art. 353b, supra, and that the maximum that could have been properly assessed was five years.

Petitioner contends that he has served in excess of the minimum and is entitled to be discharged. In Ex parte Hill, Tex.Cr.App., 528 S.W.2d 125, we expressly overruled the authority relied on by petitioner in his prayer for discharge, and held this Court has the power in habeas corpus cases to grant partial relief and remand the case to the trial court for a proper assessment of punishment by the trial judge where the error relates to punishment only and punishment was assessed by the court without a jury. Such relief is appropriate in the instant case.

Accordingly, the sentence is set aside and petitioner is remanded to the trial court for a proper assessment of his punishment by the trial judge.

It is so ordered.


author: DOUGLAS, Judge.

text:
    Richard Eugene MEARS, Appellant, v. The STATE of Texas, Appellee.
    No. 55935.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1977.
    Melvyn Carson Bruder, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell J. Templeton and Daniel P. Garrigan, Asst. Dist. Attys., Dallas, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for unauthorized use of a motor vehicle. Punishment was assessed by the court at four years.

On January 16,1976, appellant waived his right to prosecution by indictment, trial by jury and appeal and pled guilty to an information charging him with unauthorized use of a motor vehicle. After he was convicted, he did not waive his right to appeal. On January 20,1976, he filed a notice of appeal dated January 16, 1976, but the court disallowed the appeal.

This Court, in a per curiam opinion dated February 23, 1977, held that the waiver of appeal was ineffective because he did not waive his right to appeal after he had been convicted. The cause is now properly before us.

Appellant’s sole contention is that the information is fundamentally defective because it fails to describe the motor vehicle alleged to have been operated by him. The information alleges, in substance, that on December 2, 1975, appellant “intentionally and knowingly operate[d] a motor vehicle owned by John R. Eagle, without his effective consent.”

V.T.C.A., Penal Code, Section 31.07, provides, in part:

“(a) A person commits an offense if he intentionally or knowingly operates another’s boat, airplane, or motor-propelled vehicle without the effective consent of the owner. . . . ”

The information in the instant case tracks the language of the statute and thus charges an offense. Appellant’s contention regarding the description of the motor vehicle relates to the certainty of the allegations and notice. Complaints regarding the sufficiency of an indictment or information must be raised in the trial court. Articles 21.21(7) and 27.09(2), V.A.C.C.P.; Stribling v. State, 542 S.W.2d 418 (Tex.Cr. App.1976). Since appellant did not move to quash the information in the present case, or object thereto, his complaint as to its sufficiency cannot be considered on appeal. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974), and cases cited therein.

“One tire of the value of ten dollars” was held sufficient in Hendley v. State, 313 S.W.2d 296 (Tex.Cr.App.1958); “one camera” was sufficient in Beland v. State, 160 Tex.Cr.R. 351, 271 S.W.2d 430 (1954); “one cattle guard” was sufficient in Johnson v. State, 168 Tex.Cr.R. 177, 324 S.W.2d 221 (1959). The allegation of “a railroad bridge span” was held not subject to collateral attack for the first time on appeal. Crye v. State, 391 S.W.2d 57 (Tex.Cr.App.1965).

The offense was charged in plain and intelligible language with such certainty as to have enabled appellant to know what offense he was called upon to defend against. No error is reflected. Wilson v. State, 520 S.W.2d 377 (Tex.Cr.App.1975); Gaines v. State, 501 S.W.2d 315 (Tex.Cr. App.1973).

The judgment is affirmed.