author: CLINTON, Judge.

text:
    Robert Emmett HOULIHAN, Appellant, v. The STATE of Texas, Appellee.
    No. 58386.
    Court of Criminal Appeals of Texas, En Banc.
    March 28, 1979.
    Rehearing En Banc Denied April 25, 1979.

      Dick DeGuerin and Percy Foreman, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and Ned B. Morris, Asst. Dist. Attys., Houston, and Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CLINTON, Judge.

What is denominated an appeal comes to us after the court below heard a motion to reduce sentence filed by petitioner and declined to grant relief. The motion invoked the “shock probation” provisions of Article 42.12, Section 3e, V.A.C.C.P. The ruling of the court was verbally amplified as follows:

“THE COURT: I think it’s a jurisdictional question. The fact that he had probation and a motion to revoke his probation was filed, and he appealed it through the court of this state removes it from this Court’s jurisdiction as to whether or not he can get probation again. Actually he had had probation and he is now asking for another probation, so I don’t really think it falls within the statute.
“MR. DEGUERIN: So the Court is holding that you have no jurisdiction?
“THE COURT: I have no jurisdiction. Plus the fact I think that he has already had his probation. I don’t think he is eligible for shock probation under this statute.”

A chronological order of pertinent events concerning petitioner that lead up to the ruling we are asked fo review is as follows:

October 13, 1972: Appellant placed on five years probation after plea of guilty for offense of felony possession of marihuana;
April 18, 1973: Motion to revoke probation for again possessing marihuana was filed;
November 25,1975: After hearing probation was revoked and notice of appeal given;
May 25, 1977: Order revoking probation was affirmed by this Court, Houlihan v. State, 551 S.W.2d 719 (Tex.CriApp. 1977);
June 22, 1977: Leave to file motion for rehearing was denied;
June 24, 1977: Mandate of affirmance was issued by the Clerk of this Court;
June 29, 1977: Alias capias after mandate was issued out of the trial court;
July 12, 1977: Alias capias was executed by arrest of appellant;
July 13, 1977: Appellant was delivered to Texas Department of Corrections;
August 29, 1977: Section 3e, Article 42.--12, V.A.C.C.P., became effective;
October 25, 1977: Motion to reduce sentence was filed in the court below;
November 29, 1977: Hearing on motion to reduce sentence was begun and re- ' cessed without ruling;
December 16, 1977: After completing hearing on motion, the court below overruled motion to reduce sentence and appellant gave notice of appeal in open court.

In this Court the relief sought by appellant in his brief is that we “reverse the Trial Court and remand the case with directions to consider the merits of Defendant’s Motion for Reduction of Sentence.” For its part, the State says, “This court should not take jurisdiction in this action. Petitioner’s application should be dismissed.”

In several respects this is a matter of first impression, but on the question of the appellate jurisdiction of this Court to decide the issues in the posture in which they are presented the answer is settled. Basaldua v. State, 558 S.W.2d 2 (Tex.Cr.App.1977) after exhaustively reviewing all grants of power and authority to this Court, through Presiding Judge Onion writing for a majority of the Court, at 558 S.W.2d 5, held:

“We find neither constitutional nor statutory authority which would confer jurisdiction on this court to hear an appeal from an order entered pursuant to Article 42.12, Sec. 6, supra (footnote # 1), altering or modifying probationary conditions or an order, as in the instant case, refusing to alter or modify such conditions. It must be remembered that this is not an appeal from an order granting probation, cf. Article 42.04, Vernon’s Ann.C.C.P., nor is it an appeal from an order revoking probation. Article 42.12, Sec. 8, Vernon’s Ann.C.C.P. We conclude that this court lacks the authority to entertain a direct appeal from the order entered. See and cf. Walker v. State [537 S.W.2d 36 (Tex.Cr.App.1976)], supra; Hardin v. State, 157 Tex.Cr.R. 283, 248 S.W.2d 487 (1952); Morgan v. State, 135 Tex.Cr.R. 76, 117 S.W.2d 76 (1938); Griffin v. State, 29 S.W.2d 349, 350 (Tex.Cr.App.1930). See also Bretz v. State, 508 S.W.2d 97 (Tex.Cr.App.1974); Swanson v. State [169 Tex.Cr.R. 390, 334 S.W.2d 179 (1960)], supra.”

While Basaldua was decided before the constitutional writ jurisdiction of this court was expanded by the November 8, 1977 adoption by the voters of S.J.R. No. 18, Acts 1977, 65th Leg., p. 3359, which became effective January 1, 1978, still that amendment did not enlarge the appellate jurisdiction of this Court. In the absence of some newly enacted “regulations as may be prescribed by law,” Article V, 5, Constitution of Texas, granting what Basaldua did not find, this Court remains without appellate jurisdiction to decide the question appellant poses in his brief. The amendment that added Section 3e to Article 42.12 is silent as to right of appeal from a refusal to grant “shock probation,” and we neither have been referred to nor located ourselves any other statutory regulation that would permit a direct appeal from denial of such relief on whatever ground. Accordingly we adhere to. the holding of Basaldua and conclude that this Court lacks authority to entertain a direct appeal against the ruling of the court below in this manner.

In earlier times our conclusion would call for this cause to be dismissed for lack of jurisdiction. But, as indicated above, since January 1978, this Court has additional writ powers it may exercise in conformity with applicable principles of law. It has done so in appropriate circumstances on several occasions: Thomas v. Stevenson, 561 S.W.2d 845 (Tex.Cr.App.1978), mandamus to compel a speedy trial; State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978), mandamus to set aside judgment for recovery of less than face amount in bond forfeiture case and directing entry of judgment in full amount; Broggi v. Curry, 571 S.W.2d 940 (Tex.Cr.App.1978), mandamus to accord right of appeal to a defendant who was not shown by the record to have personally consented to a plea bargain implemented by the court. It has declined to do so on others: Ex Parte Paprskar, 573 S.W.2d 525 (Tex.Cr.App.1978), purported appeal from denial of motion under Art. 55.01, V.A.C.C.P. to expunge records of arrest; State v. Henson, 573 S.W.2d 548 (Tex.Cr.App.1978), purported appeal from grant of motion to expunge arrest records. Nor, as we were recently reminded, does the form in which the matter is originally presented control the form of writ by which the matter is disposed. Indeed, in its brief in this case, the State points to other writs that might be considered and, conceding it is “obviously a ‘criminal matter’,” extends this invitation to the Court: “The only approach is to treat this purported appeal as an application for the extraordinary writ of mandamus.” Unlike our response in Paprs-kar, supra, we accept the invitation and proceed to determine whether to direct the court below to consider the merits of the motion for reduction of sentence by granting “shock probation” pursuant to Section 3e, Article 42.12, V.A.C.C.P.

The concern about its jurisdiction was expressed by the court below in terms of whether an affirmance by this Court of an order of the trial court revoking probation and pronouncing sentence of confinement in the Texas Department of Corrections precluded subsequent assertion of power and authority by the trial court to hear and determine the motion. We find, for the reasons about to be stated, that in the circumstances of this case the trial court did not lack jurisdiction on the basis of its expressed concern.

First, execution of the sentence imposed by the trial court after revoking probation was suspended by reason of and pending final determination of appeal and issuance of mandate by this Court. Ordinarily receipt of mandate of an affirmance merely triggers the ministerial acts of issuing capi-as after mandate, Article 44.05, V.A.C.C.P., and a direction to the sheriff to attach to commitment papers a statement assessing conduct while in jail, if the defendant were, Article 42.03, Sec. 4, V.A.C.C.P., and will not vest any further jurisdiction in a trial court to modify the judgment and sentence upheld by this Court. State ex rel. Vance v. Hatten, 508 S.W.2d 625, 628 (Tex.Cr.App.1974); State ex rel. Wilson v. Harris, 555 S.W.2d 470, 472 (Tex.Cr.App.1977). What is significant for our purpose here is that the period of suspension of execution of the sentence during appeal terminates with service of alias capias after mandate upon defendant — here July 12, 1977 — Article 44.-11, V.A.C.C.P.; see decisions under predecessor articles such as Hinman v. State, 54 Tex.Cr.R. 434, 113 S.W. 280 (1908); Ray v. State, 154 Tex.Cr.R. 362, 227 S.W.2d 216, 218 (1950). Thus, on that date, at the earliest, execution of the sentence imposed by the trial court actually began.

Second, Section 3e(a) provides that for purposes of considering “shock probation” the jurisdiction of the trial court in the prescribed conditions “shall continue for 120 days from the date the execution of the sentence actually begins.” We cannot, nor need we, know what situations were contemplated by the Legislature when it so obviously carefully used and reiterated the phrase. The language is clear and unambiguous and read literally — we have no valid reason to do otherwise — it means that from the date a defendant actually begins his sentence. The trial court that sentenced him continues to have jurisdiction for 120 days to suspend further execution of the sentence and place the defendant on probation.

Accordingly, as Presiding Judge Onion opined at first blush in his dissenting opinion in State ex rel. Wilson v. Harris, supra, 555 S.W.2d at 477, we conclude that the court below did not lack jurisdiction on the basis stated by it — that the motion for relief' came after return of our mandate of affirmance.

The second ground for denying relief as expressed by the court below was that because appellant had earlier been granted probation he was not “eligible” for “shock probation” under Section 3e. In other words, we construe that the denial is drawn from an interpretation of the statute — a denial in law rather than in fact. While this question is much closer than the first, since the statutory language does not specifically address the point, we believé and find that one is “eligible” in law for consideration of “shock probation” notwithstanding he has earlier been granted probation in the same case.

We begin with the obvious: Nothing in the section can be read to mean that one who has been previously granted probation is ineligible for consideration for “shock probation” — neither one who has successfully completed a term of probation in some other case nor one who “flunked” and had his probation revoked in the same case. Then we note that the section undertakes to provide conditions and standards by which one may qualify for consideration, including “prior to the execution of such sentence, the defendant had never been incarcerated in a penitentiary serving a sentence for a felony .” Here is a definite statement of ineligibility that indicates the Legislature considered the matter; that it did not declare ineligible a defendant who had been put on probation — when it could have so easily done so right at this point had it desired — weighs against a judicial determination of such ineligibility. Finally, the very article in which Section 8e was inserted specially preserves the power and authority of the judge of the trial court to grant probation to a defendant regardless of his past record or adverse recommendation from a jury. Sections 3 and 3c, Article 42.12, V.A.C.C.P. — except, of course, as to the offenses prescribed in Section 3f. From this analysis we cannot concludé that the Legislature intended to declare a defendant similarly situated as our appellant ineligible for consideration for “shock probation.” To the contrary, we believe and find that one who has previously been granted probation and has either successfully completed his term or has had the term of his probation revoked, but has never been confined in a penitentiary for a felony offense, is eligible for suspension of further execution of his sentence and probation.

Accordingly, we conclude that the court below was probably misled by a reading of “sentence” to mean “defendant” to make' the statutory interpretation it did. In any event, the interpretation is not correct for we hold that one who has previously been granted probation is not ineligible for “shock probation” under Section 3e, Article 42.12, V.A.C.C.P.

Now that we have decided the court below gave erroneous reasons for denying relief to petitioner, there still remains the question of whether this Court should direct the court, as prayed for by appellant, to consider the merits of his motion for shock probation. The State raises two barriers in the way of our granting that relief which must be hurdled if we are to do so. First, the State contends that because petitioner was arrested on alias capias before Section 3e became effective it is not available to him since jurisdiction of the court already “lost” cannot “continue.” The argument is appealing but not persuasive for we doubt that Section 3e is an amendment to a statute with respect to which punishment has been incurred or an amendment reducing punishment for any offense; rather, we perceive that the provisions of Section 3e are more procedural in nature in that they provide a means whereby a court may suspend further execution of sentence. In any event, we do not strain the intent and purpose, or the language, of Section 3e by noting that its provisions were in effect when the motion to reduce sentence was filed so that the jurisdiction of the court to decide the motion was thereby invoked.

The State contends that the December 16, 1977 ruling of the court below came after jurisdiction had terminated and, therefore, is a nullity. With this contention we do agree and, accordingly, may not direct the court to consider the merits of appellant’s motion for shock probation.

Section 3e(a) uses language concerning “jurisdiction” of a trial court in this special situation that, once again, is clear and unambiguous:

“. . . the jurisdiction of the courts shall continue for 120 days . . After the expiration of 60 days but prior to the expiration of 120 days . . . the judge of the court . may . . . suspend further execution of the sentence imposed and place the defendant on probation . .”

Plainly and unequivocally the Legislature sought to accomplish two purposes: One, to expand jurisdiction for 120 days and, two, to require a ruling by the court in the second 60 day period. Taken together the two provisions admit of no other construction than that jurisdiction to act ceases when the 120 day period has expired.

Appellant, however, points to decisions of United States Courts of Appeals construing Federal Rule 35, F.R.Crim.P., for the proposition that the 120 day period contemplates only filing of a motion rather than ruling of the court, as in, e. g., United States v. Stollings, 516 F.2d 1287 (4th Cir. 1975). But even Stollings and like decisions agree that “a strictly literal reading” of Rule 35 applies the time limit to the ruling of the court, but as characterized by Wright, 2 Federal Practice and Procedure 573, Sec. 587, the courts have avoided “so singular a result” by holding the time limit applies to filing a motion for relief rather than ruling by the court. Unlike Rule 35, Section 3e is cast in terms of “jurisdiction” of the court to act during the second 60 day period and within the deadline prescribed. Thus, opinions of Federal courts that refuse to follow their own “literal reading” of Rule 35 that would require the same result we reach here are not persuasive. In this connection, we note the United States Court of Appeals for the Fifth Circuit, on the other hand, has held the period is jurisdictional and power of a federal district court to act does not extend beyond the 120 day deadline, U. S. v. Norton, 539 F.2d 1082 (5th Cir. 1976) but more recently in United States v. Mendoza, 581 F.2d 89 (5 Cir. En Banc 1978) modifying 565 F.2d 1285, the Fifth Circuit held that a federal district court retains jurisdiction for a reasonable time after 120 days to rule a motion that was filed during the 120 day period.

If applying our own literal reading to Section 3e is thought to bring on “devastatingly and arbitrarily fortuitous” consequences, the solution is similar to that suggested by the dissent in Stollings, supra, 516 F.2d at 1290:

“. . . It is my opinion that this (remedial purpose of majority) should be brought about by an amendment to Rule 35 . and not through a ruling by Federal court.”

So here, the forum to petition for redress for relief from untoward consequences of clear meaning of unambiguous statutory language is the Legislature that enacted it.

Holding as we do, then, that the court below lost jurisdiction before it denied relief on the grounds stated, the prayer for mandamus directing the court below to consider the merits of the motion for shock probation must be denied.

Treating the purported appeal as an application for writ of mandamus, the writ is denied for want of jurisdiction in the court below to grant relief sought by petitioner under Section 3e, Article 42.12, V.A.C.C.P.

It is so ordered.

DOUGLAS, DALLY and W. C. DAVIS, JJ., concur in result.

PHILLIPS, J., dissents.

      . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

      . Although power to issue certain kinds of writs was added, overall the writ authority of this Court was restricted by insertion of the qualifying phrase “regarding criminal law matters.”

      . Odom, J. dissenting in State v. Henson, supra, 573 S.W.2d at 551:
      “The fact that the matter was not urged as mandamus should not deter us. In State ex rel. Vance v. Clawson, Tex.Cr.App., 465 S.W.2d 164, this Court accepted an application for writ of prohibition and then disposed of it as an application for writ of mandamus. In Ex parte. Giles, Tex.Cr.App., 502 S.W.2d 774, a case that started in mandamus concluded in habeas corpus. In Basaldua v. State, Tex.Cr.App., 558 S.W.2d 2, what arrived as an appeal left as habeas corpus. Broggi v. Curry, Tex.Cr.App., 571 S.W.2d 940 (1978, Odom, J.) saw a habeas corpus application transformed to mandamus. And the case of Ex parte Clear, Tex.Cr.App., 573 S.W.2d 224 (Roberts, J.) a multiple application for habeas corpus, mandamus, and prohibition, was ultimately disposed of as habe-as corpus, although the substantive relief awarded bears a closer resemblance to mandamus. In each of these cases this Court did not hesitate to dispose of the case under the form of writ considered most appropriate, regardless of the form in which it was originally presented.”

      . For purposes of this opinion, we assume that execution of sentence actually began on either the day appellant was arrested and confined in the Harris County Jail or the following day when he has delivered to the Texas Department of Corrections. It is unnecessary to decide which date was truly contemplated by the Legislature and we do not do so.

      . This conclusion is not intended, and is not to be taken, as holding that the court below did have jurisdiction to grant the relief requested by the motion at the time its ruling was stated by the court.

      . In a trial brief presented to the court below the State agreed with this proposition and argued from it that by including language that a defendant be “otherwise eligible for probation” the Legislature must have intended to exclude one who had been on probation. The problem with the argument is the statute requires the “sentence,” not the defendant, to be eligible.

      . As a “fallback” position the State translates a statement made by the court below to be a discretionary ruling denying the motion on its merits. Clearly the statute endows the court that reaches the merits wide discretion — “in the opinion of the judge the defendant would not benefit from further incarceration in a penitentiary” — but since the court did not particularly allude to that factor, we prefer to believe the judge did not really reach the merits. Of course, if the court had considered the merits and denied relief after consideration, mandamus would not lie. It is axiomatic that the writ of mandamus may not be utilized to revise or correct error in discretion committed in exercise of a judicial duty unless in the particular case there is a clear abuse of discretion. See Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 682 (1956); State v. Markie, 363 S.W.2d 332, 335-336 (Tex.Civ.App., Houston 1962).

      . The State refers us to the Code Construction Act, Article 5429b-2, Section 3.11(a)(3) and (b), declaring saving provisions in situations therein described.

      . Moreover, we prefer not to rule the case on this basis for, as we see it, a more serious question likely to arise generally throughout the State is presented and should be determined here for guidance to the bench and bar.

      . The State would have us support our reading of the statutory provisions by analogizing from failure of the court to rule on motion for new trial under Article 40.05, V.A.C.C.P., or to act on a bill of exception under Article 40.09, Section 6, V.A.C.C.P. But in Section 3e the Legislature did not expressly state the consequence of a failure to rule within 120 days. Thus the analogy is too imperfect to lead us in this different situation, and we do not hold that a Section 3e motion is overruled by operation of law if not acted upon within the 120 day period of jurisdiction. In this unique situation the legislative intent is best served by simply regarding a failure to rule within 120 days as just that, and no more. To equate a failure to rule with a denial of “shock probation” might conceivably impart such unforeseen consequences that we are unwilling to sanction blindly the drawing of any conclusion that may be said to follow from a denial of “shock probation.”


source: Caselaw Access Project

author: PHILLIPS, Judge.

license: Public Domain

text:
    Alfonso de la GARZA, Appellant, v. The STATE of Texas, Appellee.
    No. 53331.
    Court of Criminal Appeals of Texas, En Banc.
    April 11, 1979.

      Roger Rocha, Laredo, for appellant.
    Charles R. Borchers, Dist. Atty., Donato D. Ramos, Stephen A. Whitworth and Sharon S. Trigo, Asst. Dist. Atty’s., Laredo, and Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction by a jury on a plea of not guilty of the lesser included felony offense under a bribery indictment of conferring compensation for past official behavior in violation of V.T. C.A., Penal Code, Sec. 36.07(a): The jury assessed punishment at confinement in jail for 12 months and a fine of $2,000.00, and recommended probation as to the jail term.

The State moves to dismiss the appeal herein upon the grounds that appellant’s notice of appeal which is noted on the docket to have been given in open court on December 12, 1975, immediately below the docket entry of said date, “Defendant placed on probation for a term of twelve months”, was premature and a nullity, since a written order granting probation to appellant was not entered until January 27, 1976, and no further notice of appeal was ever given. The State contends that McIntosh v. State, 534 S.W.2d 143, requires such disposition by reason of the following statement in said decision at page 145:

“Reading Article 42.13, Sec. 4, [V.A.C.C. P.], and Article 44.08(b) [V.A.C.C.P.] together, we hold that in misdemeanor cases where probation is granted notice of appeal must be given within ten days after entry of the written order granting an appellant probation if no motions for new trial are timely filed.”

The State fails to give proper importance to the immediately preceding statement by this Court in McIntosh, to-wit:

“. . . under the terms of Article 42.-13, Vernon’s Ann. C.C.P. no judgment is to be entered in such cases. See Ex parte Smith, 493 S.W.2d 958 (Tex.Cr.App.1973); Coby v. State;4 518 S.W.2d 829 (Tex.Cr.App.1975). Article 42.13, Sec. 4, supra, provides that the trial court shall record the fact and date that probation was granted on the docket sheet or in the minutes of the court.”

The State further fails to take due cognizance of footnote four thereunder, to-wit: “ 4

‡ # # ⅜ ⅜
It is the better practice to enter a formal order granting probation as was done in the instant case . . . ”

We think it plain, upon due consideration of said quoted matter that this Court intended the phrase “entry of the written order granting an appellant probation” to mean the written recordation of the fact and date that probation was granted, either on the docket sheet or by a formal order in the minutes of the court. The State’s motion to dismiss is overruled.

Appellant challenges the sufficiency of the evidence. Erasmo Rodarte, a sergeant at the Webb County Jail, testified that due to guidelines established by the Sheriff of Webb County it was his duty not to recommend bail bondsmen to prisoners. However, on January 28, 1975, Sgt. Rodarte called appellant to post bond for one Antonio Castillo, alias Tony Cordoba, an undercover officer who had been arrested on a drug charge. Rodarte had not been asked by Castillo to call the appellant nor had he been requested to call any bondsman.

Rodarte further testified that the names of three bondsmen approved to make bond in Webb County were posted in the jail. The appellant was one of the bondsmen on that list. Rodarte stated that he had been told to call one of the three bondsmen in rotating priority. Rodarte was unable to say who had given him these instructions nor if it constituted jail policy.

Concerning the benefits received, Rodarte testified that on ten separate occasions he had borrowed money from Alfonso de la Garza, the appellant, without paying interest. The loans varied in amount between $5.00 and $35.00. At other times Rodarte had accepted small amounts of money as outright gifts. Sgt. Rodarte explained that the loans were made because appellant was a cousin of his wife. All of the gifts and loans were made prior to January 29, 1975, the day Sgt. Rodarte was discharged.

Tony Cordoba, an undercover officer with the Texas Department of Public Safety, testified that on January 28, 1975, he was charged with misdemeanor possession of marihuana and placed in the Webb County Jail under the name of Tony Castillo. Bond was set at $1,000.00. Castillo told Rodarte that he wanted to get out of jail. After approximately 20 to 25 minutes Sgt. Ro-darte introduced Castillo to the appellant, at which time the.appellant agreed to post bond for Castillo for a fee of $150.00. Castillo had not specifically requested a bondsman nor been shown a list from which to choose a bondsman.

The bond reflected that Alfonso de la Garza, the appellant, signed the bond as attorney in fact for the surety, Jorge de la Garza, his brother.

Humberto Gutierrez, a deputy sheriff at the Webb County Jail, testified that one of his duties as a jailer was not to refer the prisoners to any lawyer or bail bondsman. He stated that the jailers were given a list of guidelines which stated that they were to show the prisoners the actual list of bondsmen. He further testified that he had been on duty in August 1974 at which time he observed the appellant hand one Sgt. Lugo some money “in a handshake type situation.”

J. J. Ortegon, a sergeant at the Webb County Jail at the time of the offense, reiterated that one of the duties of a jailer was not to recommend bail bondsmen. He further testified, after a grant of immunity, that he had violated this duty on numerous occasions. He stated that when a prisoner would ask for a bondsman he would call the appellant and for these services he would receive ten percent of whatever fee was charged the prisoner by the appellant.

Fred Everett, an insurance and bond broker, testified that in August 1974 he and appellant entered into an oral agreement whereby appellant would make bonds in Webb County on Everett’s behalf for a commission of 30 percent of the ten percent bond fee charged the prisoner. Later that agreement was modified to provide for a commission of 40 percent of the ten percent bond fee. Appellant told Everett at that time that he needed the additional ten percent commission to pay the jailers at the Webb County Jail.

The testimony of two defense witnesses established that there was an index card posted in the jail which contained the names of three bondsmen approved to make bond in Webb County. This list of names was changed each month in an alternating manner.

P. L. Flores, Sheriff of Webb County, testified for the defense that he prepared guidelines for his employees which he updated each year. He gave a copy of these guidelines to each employee, but did not know if these were posted within the jail. These guidelines provided that the jail employees were not to recommend bail bondsmen to prisoners. On cross examination Sheriff Flores distinguished between a surety and a bondsman and stated that in his opinion appellant was a bondsman.

Mike Volpe, County Clerk of Webb County, testified that he had not received any rules or regulations from the Sheriff’s Department to be filed in his office. He further stated, however, that he knew of no law which required the Sheriff to file any such rules or regulations.

Appellant testified at the punishment phase for the purpose of establishing his eligibility for a probated sentence.

This point hinges upon whether it was the official duty of the Webb County Jailer, Rodarte, to refrain from recommending a particular bail bondsman. The State contends that Art. 2372p-3, Sec. 15(c), V.A. C.S., which specifically prohibits such recommendation by any sheriff, peace officer or his deputy or employee, imposes such duty. Sec. 3(c) of said article specifically provides that the provisions of said act do not apply to the execution of bail bonds in counties having a population of less than 124,000 according to the last preceding federal census. We take judicial notice that Webb County’s population is less than 124,-000. It is argued by the State that the recommending of a bail bondsman does not relate to the execution of bail bonds and that said Sec. 15(c) therefore is thus applicable in all counties. With this contention we disagree. We find, however, that defendant’s exhibit one, shown by the testimony of the Sheriff of Webb County to contain the official duties published by him for jailers at Webb County Jail, specifically provides “deputies are not authorized to recommend professional bail bondsmen specifically.” We hold that the Sheriff’s statutory right of supervision and control over the jail granted by Art. 5116, V.A.C.S., authorizes the Sheriff to legally impose such restriction on his jailers and that an official duty may consist of an obligation to refrain from action as well as to affirmatively take action. The testimony of Deputy Rodarte that he recommended appellant as bondsman and that he thereafter received monies from him without any explanation other than Rodarte’s claim that such were loans and his wife was a cousin of appellant is sufficient to support the finding that appellant conferred benefits on him for his violation of a negative obligation he was under in the performance of his official duties as jailer.

Appellant’s first ground of error complains of the failure of the clerk to furnish him with a written statement of the period and terms of his probation. There is no showing in the record that this did not occur and any relief from such failure can only be raised by mandamus or as a possible defense in the event of revocation.

In ground of error two appellant contends.that the trial court erred in declining to give the requested charge on his affirmative defense to prosecution and in overruling his objection to the charge as given by the trial court. The appellant’s contention will hinge upon whether the charge given to the jury had the same effect in law as the charge which was requested. In Mitchell v. State, 517 S.W.2d 282, 286, we stated:

“It is well established that special requested charges may be properly refused where the instructions given by the court are adequate and fully protect the accused as. to the matters included in the requested charges.”

The court instructed the jury on appellant’s defensive issues as follows:

“It is a defense to the lesser included offense of Conferring Compensation for Past Official Behavior if the benefit involved was a gift, or other benefit conferred on account of kinship or a personal, professional, or business relationship independent of the official status of the recipient; or a trivial benefit incidental to personal, professional, or business contacts that involves no substantial risk of undermining official impartiality.
Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, Alfonso de la Garza, on or about the 21st day of January 1975, in the County of Webb, and State of Texas, as alleged in the indictment, did then and there intentionally or knowingly confer a benefit, to-wit: deliver as a gift current money of the United States to Erasmo Rodarte, a public servant, to-wit: an employee of the Sheriff’s Department of Webb County, Texas, with intent to influence the said Erasmo Rodarte in a specific performance of his official duties, to-wit; to recommend a professional bail bondsman, to-wit: Alfonso de la Garza, when he, the said Erasmo Rodarte was not to recommend a professional bail bondsman while on duty as a jailer at the Webb County Jail, you will find the defendant guilty of the offense of Conferring Compensation for Past Official Behavior and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, or if you find from the evidence that the benefit conferred upon Erasmo Rodarte, if any, was either a gift or other benefit conferred on account of kinship or a personal, professional, or business relationship independent of the official status of the recipient, or a trivial benefit incidental to personal, professional, or business contacts that involves no substantial risk of undermining official impartiality, you will acquit the defendant and say by your verdict ‘Not Guilty.’ ”

This charge sufficiently defined appellant’s affirmative defense and adequately submitted the case from his standpoint. See Skidmore v. State, 530 S.W.2d 316. This ground of error is overruled.

Appellant’s third ground of error alleges that the second paragraph of the charge quoted above is grammatically incorrect and misleads the jury in that it tells the jury that Erasmo Rodarte had an official duty “to recommend a professional bail bondsman, to-wit: Alfonso de la Garza”, rather than not to recommend a particular bondsman.

In Bailey v. State, 532 S.W.2d 316, 322, we stated:

“In considering a charge on appeal, we will not review isolated portions, but will consider the charge aá a whole.”

The charge in this case, when viewed as a whole, cannot be considered ambiguous when, following the language relied on by appellant, the charge plainly states that “Erasmo Rodarte was not to recommend a professional bail bondsman while on duty as a jailer at the Webb County Jail.” Further, the charge accurately instructs the jury, under the law as reflected in the indictment, when it should return a verdict of guilty and when it should return a verdict of not guilty. Eanes v. State, 546 S.W.2d 312; Williams v. State, 547 S.W.2d 18; Smith v. State, 541 S.W.2d 831.

Finding no reversible error, we affirm the judgment.


author: DALLY, Judge.

text:
    Joe Henry DeRUSSE, Appellant, v. The STATE of Texas, Appellee.
    No. 56070.
    Court of Criminal Appeals of Texas, Panel No. 3.
    April 11, 1979.

      Robert D. Thorpe and Michael G. Morris, Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty. and Eric G. Brown, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for murder. The punishment is imprisonment for twenty-six years.

Appellant contends that: (1) a psychiatrist was erroneously permitted to testify to statements made by appellant during a competency examination; (2) the prosecutor improperly referred to the order of the trial court finding that appellant’s confession was voluntary; (3) testimony concerning an unrelated crime was erroneously introduced; (4) the prosecutor offered in evidence photographs which had previously been ruled inadmissible; (5) evidence as to appellant’s lack of a prior criminal record was erroneously excluded; (6) the trial court erroneously refused appellant’s requested charges on assault and on the presumption of innocence; (7) the trial court erroneously charged the jury on the offense of injury to a child; (8) the prosecutor engaged in improper jury argument; (9) the district attorney should have been required to honor a pretrial plea bargain agreement; and (10) the State should not have been allowed to have two attorneys present its case.

The evidence establishes that appellant and his wife fatally beat their three-year-old son with their hands, a board, a belt, and an electric cord. The child was pronounced dead- on arrival at the Robstown Riverside Hospital on October 4,1975. Two of the nurses on duty in the emergency room at the time testified that the child appeared to have been run over by a car.

The Nueces County Medical Examiner testified that:

“ . . . the child was severely beaten. I estimated that about seventy-five percent of the body surface was covered with contusions and bruises and that the bruising was from the top of the head to the tops of the feet. There was literally no area spared of the bruising . . . ”

Asked the cause of death, the Medical Examiner testified:

“. . . the underlying cause of death was extensive contusions and ecchymoses of the body.
“Q. In layman’s terms, what does that mean?
“A. He was beaten to death.”

Appellant’s defense was that he was insane at the time of the offense. Dr. Henry Hammer, a clinical psychologist, testified that he had examined appellant in October, 1975. He described his conclusions, based upon this examination, as follows:

“I saw Mr. deRusse as suffering from a paranoid state which is transitory, psychotic episode of indeterminate length. This means that for a specific part of his life, Mr. deRusse was out of contact with reality. The greater portion of his life he was in contact with reality and continues to be in contact with reality. That is, he would be perceived by most reasonable people to be okay, to not be crazy. However, when you get into that segment of his life that encapsulates a delusional belief system, his perception of the situation and yours might be very radically different. His area of interest, which was delusional, happened to be in the sphere of religion. He believed — and I haven’t spoken with him since — October, ’75, so I can’t say what his belief system might still be, but at that time he believed very deeply in possession by demons. This gets into a religious area that is tricky to deal with because a significant portion of the population, maybe small in terms of percentage but large in terms of numbers, also believed in possession by spirits. Where it gets to be important to distinguish is his particular elaboration of those beliefs, how they were in his mind. He had a very concrete belief that his son was possessed by a spirit, by a demon, that his son was acting not on his own but at the behest of a spirit, a demon.
“Now, insofar as you and I would not agree that that is in fact what has been happening, he was out of contact with reality. Now that is very superficially what went on. What we are dealing with here is a whole complex personality on which superimposed is this basic disorder. This disorder which is of indetermi-nant length but of serious proportion

Dr. Hammer testified that appellant did not intend to harm his son when he beat him:

. He was busy attacking the behavior of a demon, in his own mind, he was. As extra baggage to that,' as something that happened inadvertently, he— undésirably, perhaps, undesirably is a better term, he was also causing physical harm to his son. He saw that as very undesirable. He did not want to cause harm to the son. He did want to correct this demonic behavior he perceived.”

Dr. Hammer testified that, in his opinion, appellant’s delusional belief that his son was possessed by a demon was a mental disease or defect and appellant, as a result, did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law. V.T.C.A. Penal Code, Sec. 8.01.

In rebuttal, the State called Dr. Joel Kut-nick, a psychiatrist who had been appointed by the trial court to examine appellant as to his competence to stand trial and his sanity at the time of the offense. Art. 46.02, Sec. 3, and Art. 46.03, Sec. 3, V.A.C.C.P. Dr. Kutnick testified that appellant had not beaten his son to get rid of a demon, but as means of discipline:

“. . . [A]s I see the case, the religious issue, in one way, is kind of a red herring because Mr. deRusse himself doesn’t feel or doesn’t in any way say that the reason he was disciplining his child was because he was trying to get rid of the demon. He was- doing it as a way of trying to teach his boy the correct way of behaving and in his own mind felt that he was doing the right kind of thing in terms of bringing up his son. The religious issue is kind of, wasn’t the kind of thing that motivated him to act in terms of delivering punishment to his son at all.”

Moreover, Dr. Kutnick did not believe that appellant’s religious beliefs constituted a mental disease or defect. He expressed his disagreement with Dr Hammer as follows:

“Dr. Hammer feels . . . that because his religious beliefs are such that a majority of the population don’t have the strong conviction or as a bizarre kinds of things, like demon possession and seeing smoke arise from the boy’s body, at one time, that this represents a psychosis, a mental illness, a paranoid state. I don’t see this as a mental illness. I think one has to be very careful when one gets into the area of religion and calling people mentally ill. Many, many people have all kinds of religious beliefs . . . They are not sick in the psychiatric sense, they are only caught up in their own cultural beliefs. I feel that the way Mr. de Russe presents with his rational thinking and being able to explain, if you accept his basic premises that there is a good and • evil in the world and that the evil is because of Satan and his henchmen demons and good comes out of the world because of God . . ., if you accept all of those basic tenets, that what he says and how he views things makes perfect sense and is not illogical at all, if you accept those tenets. That to me is not mental illness . . .”

As a basis for his testimony, Dr. Kutnick described the history of the case as related to him by appellant during the course of his examination. Most of this testimony was a repetition of testimony by other witnesses, including witnesses called by appellant, but this testimony also included certain facts which were not otherwise in evidence. Specifically, Dr. Kutnick testified that appellant had told him that he had burned the soles of his son’s feet with matches; that appellant and his wife had poured jalapeno pepper juice in the boy’s eyes; and that on the night he died, the child had been left tied to a door so that he could not raid the refrigerator, a habit which his parents were trying to break.

Prior to Dr. Kutnick’s testimony, a discussion as to the admissibility of any statements made by appellant during the doctor’s examination was held outside the presence of the jury. At that time, appellant contended, as he does now on appeal, that, such statements were inadmissible under the terms of Art. 46.02, Séc. 3(f), as it read at the time of the trial. The trial court overruled appellant’s objection, and held that Dr. Kutnick could testify as to the contents of his report.

Art. 46.02, Sec. 3(g), supra, reads:

“No statement made by the defendant during the examination or hearing on his competency to stand trial may be admitted in evidence against the defendant on the issue of guilt in any criminal proceeding.”

There is no comparable provision in Art. 46.03, supra, relating to examinations on the issue of sanity at the time of the offense.

Art. 46.03, Sec. 3(g), V.A.C.C.P., provides that experts appointed to examine a defendant with regard to the insanity defense may also examine the defendant with regard to his competence to stand trial. Appellant’s pretrial motion for a psychiatric examination, which is in the record, expressly requests such a dual purpose examination, and the order appointing Dr. Kut-nick directs that he conduct such an examination.

We are presented with the question of whether Art. 46.02, Sec. 3(g), supra, applies to statements made by a defendant during an examination pursuant to Art. 46.-03, Sec. 3(g), supra. We hold that it does not. v

Any psychiatric examination with regard to the defendant’s sanity at the time of the offense, and any testimony by the psychiatrist based on that examination, must necessarily deal with the defendant’s conduct, and his perception thereof, at the time of the offense. The statements of the defendant to the psychiatrist concerning that conduct are, therefore, highly probative on the issue of the insanity defense. As a consequence, Art. 46.03, Sec. 3, V.A.C.C.P., contains no prohibition against the use of the defendant’s statements at his trial similar to the prohibition found in Art. 46.02, Sec. 3(g), supra.

We can perceive of no reason to apply Art. 46.02, Sec. 3(g), so as to forbid the trial use, relative to the sanity defense, of the defendant’s statements to the psychiatrist during a combined competence/sanity examination pursuant to Art. 46.03, Sec. 3(g), supra. Psychiatric testimony with regard to the defendant’s sanity at the time of the offense would hardly be possible if statements by the defendant during his examination were inadmissible, and the jury would be deprived of valuable evidence relative to the insanity defense. Moreover, to allow the statements of the defendant during an Art. 46.03, Sec. 3(g), examination to be admitted in evidence at his trial causes no unique prejudice to the defendant; he is in precisely the same position as any other defendant who is examined with regard to the insanity defense.

Our holding in this case is not in conflict with the opinion in Ballard v. State, 519 S.W.2d 426 (Tex.Cr.App.1975). That opinion was written prior to the enactment of Art. 46.03, supra. Furthermore, the predecessor to Art. 46.02, See. 3(g), as it read at that time, provided that:

“No statement made by the defendant during examination into his competency shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding no matter under what circumstance such examination takes place.” (Emphasis added.)

The emphasized words were deleted from what is now Art. 46.02, Sec. 3(g), in 1975, the year Art. 46.03 was enacted.

Appellant gave a written statement to the police on the morning the child died. This statement reads, in part, as follows:

“I have been spanking the boy for about two years whenever he wouldn’t mind or started crying for no reason at all. I was trying to discipline him .
“I got off work on 10-3-75 and I spanked him, I had a wooden paddle, a belt, and I also used my hand. This was about 6:00 p. m. to about 7:00 p. m. I don’t remember why I spanked him.
“He wouldn’t get up this morning but I only spanked him lightly with my hand. I then told him to lie down on the floor, and when I came back he wasn’t breathing. I have spanked him with the same board and belt before, but he always came out of it. I have never spanked him as hard as I did yesterday.”

Pursuant to Art. 38.22, V.A.C.C.P., a pretrial hearing was held to determine the voluntariness of this statement. Following this hearing, the trial court entered a written order finding that the statement had been voluntarily given, and the statement was subsequently admitted in evidence at appellant’s trial.

During appellant’s examination of Dubois Williams, another psychologist called by the defense, the following exchange took place:

“Q. After spending the amount of time with Mr. deRusse and learning what you have of Mr. deRusse, is the conduct of his calling the Elder, taking the child in his arms, going to the hospital, there being arrested and giving a confession, these circumstances, one, do you think that confession was given in such a way that it would be voluntary and, two, would he or could he have been also attempting to protect his wife or for some other reason giving the confession?
“MR. MOBLEY [Prosecuting Attorney]: I feel this would be a conclusion as far as this witness is concerned, concerning Mrs. de Russe, and further, I don’t know if he is intending to encompass in his question whether or not it was voluntary — it has already been ruled to be voluntary and that he knowingly and intelligently waived his rights, Your Honor, so I don’t know if he is getting to the confession or trying to get .
“MR. THORPE [Defense Attorney]: Your Honor, I am going to move for
“MR. MOBLEY: Your Honor . . .
“MR. THORPE: Your Honor, at this time I would move for a mistrial on the basis of Mr. Mobley’s last statement with regard to the confession. It is a jury question. It has not been so ruled on by the jury and I would, at this point in time, move for a mistrial in this case.
“THE COURT: I will overrule your objection and your request for a mistrial. I will sustain Mr. Mobley’s objection insofar as your question includes the information about Mrs. de Russe. The rest of the question I will — if you can rephrase it, why then I will let Mrs. Williams answer that.
“MR. THORPE: Your Honor, I would like to request a jury instruction with reference to the remark Mr. Mob-ley made with reference to the confession.
“MR. MOBLEY: Your Honor, please.
“THE COURT: I am going to grant Mr. Thorpe’s instruction to the jury. You will have to pass upon the admissibility and voluntariness of the confession. It has been admitted but you pass on the voluntariness of the confession in the Court’s charge to you and I will instruct you to disregard the vol-untariness statement by Mr. Mobley.”

Art. 38.22, supra, provides that the order of the trial court finding the confession to be voluntary “shall not be exhibited to the jury nor the finding thereof made known to the jury in any manner.” There can be no doubt that the statement of the prosecutor objected to by appellant violated this provision of the statute.

In Johnson v. State, 510 S.W.2d 944 (Tex.Cr.App.1974), the prosecutor, in his argument to the jury, stated:

“. . .if there is anything wrong at all with the confession, Judge Power wouldn’t have let it into evidence . .”

The trial court sustained the defendant’s objection and instructed the jury to disregard the statement. This Court held that the argument, although error, did not require reversal, noting that the confession had been admitted in evidence in the jury’s presence, that the argument did not refer to the separate hearing, the court’s order, or any specific finding of the court regarding the voluntariness of the confession, and that the prosecutor subsequently told the jury, without objection, that when something is admitted in evidence the judge doesn’t vouch for its truthfulness. This Court also noted that the defendant had not asked for a mistrial, thereby indicating his satisfaction with the instruction to disregard.

In the instant case, as in Johnson, the confession was admitted in evidence in the jury’s presence, and the statement of the prosecutor did not refer to the separate hearing. Although the prosecutor in this case did specifically refer to two of the findings of the trial court regarding the confession, it should be noted that the statement was not made during jury argument, when the jury may be expected to be particularly attentive to the statements of the lawyers, but during an objection to testimony made in the midst of a trial which was filled with numerous and lengthy objections to testimony.

In Johnson, the trial court merely instructed the jury to disregard the prosecutor’s statement. In the instant case, the court instructed the jury to disregard and informed them that it would be their duty to pass upon the voluntariness of the confession. As in Johnson, appellant requested no further relief after the trial court gave its admonishment to the jury. We hold that, under the circumstances of this case, the prosecutor’s error does not require reversal of the judgment.

Phil Westergren, the attorney who had originally been hired to defend appellant, was called by the. defense to testify that in his opinion as a layman who had seen many persons who had been determined to be legally insane appellant was insane. During cross-examination by the prosecutor, for whom Westergren had worked before entering private practice, he was asked:

“Q. Do you think everybody that kills his baby is insane?
“A. No.
“Q. Judy Terry wasn’t insane?
“A. Not in my opinion.
“Q. You prosecuted her?
“A. That’s right.
“Q. She threw her baby up against the wall.
“A. The floor.
“Q. Against a hard object, resulting in its death?
“A. Yeah.
“Q. She killed two babies, didn’t she?
“A. I heard she killed another one.
“Q. She got out of jail, went to another state, killed another baby, you heard that?
“A. I don’t know the details of it.
“Q. You heard that’s true?
“A. Yeah. I think I have, but all I know personally about Judy Terry is the first case, the one I prosecuted.
“Q. You heard since then she killed another baby?
“A. I have heard that, yeah.”

Appellant contends that the trial court erred in admitting this testimony. However, appellant voiced no objection to the testimony, and nothing is presented for review. Phillips v. State, 511 S.W.2d 22 (Tex.Cr.App.1974); Randolph v. State, 499 S.W.2d 311 (Tex.Cr.App.1973).

Prior to the testimony of the medical examiner, and outside the presence of the jury, the trial court ruled that three of the seven photographs of the body of the deceased would not be admitted because they were repetitious. After the jury returned and the medical examiner began his testimony, the photographs were offered in evidence as follows:

“MR. MOBLEY: Your Honor, please, these photographs have heretofore been marked for identification as State’s Exhibits 20 through 26.
“THE COURT: Mr. Thorpe, you have had an opportunity?
“MR. THORPE: Yes, Your Honor, I have had an opportunity to look at the pictures.
“THE COURT: Under the Court’s pri- or ruling, the Exhibits 20 through 23 will be admitted and Exhibits 24 through 26 will be excluded.
“MR. THORPE: I would object for the record. I object to Mr. Mobley having offered the other three in the presence of the jury. I thought that was the reason we did it outside the jury, not to require me to — -not to have the jury know that separate pictures have been excused by the Court.”

Appellant contends, without citation of authority, that the prosecutor committed reversible error by offering the three photographs which had been previously determined to be inadmissible. He argues that the prosecutor’s action invited the jury to speculate that the photographs were not admitted due to their gruesome nature.

Although there was no reason for the prosecutor to offer in evidence the photographs that had been ruled inadmissible, we cannot conclude that this error, if error it was, requires reversal of the judgment. Moreover, other than objecting for the record, appellant made no request for specific relief, such as a motion for mistrial or an admonitory instruction. This ground of error is overruled.

Psychologist Dubois Williams was recalled by appellant to testify at the punishment stage of the trial. In a multifarious ground of error, he complains of two instances where the trial court excluded certain testimony by Williams. The first instance occurred when appellant asked Williams:

“Mrs. Williams, in your investigation, and work with Mr. de Russe, have you had indication of his ever having any other prior criminal record whatsoever or involvement, criminal record, any involvement in criminal activities of any kind?
“MR. MOBLEY: This is improper form and would be leading.
“THE COURT: I will sustain.
“Q. Of your own knowledge, are you aware of any criminal record which Joe Henry de Russe has?
“MR. MOBLEY: Again, this is the improper form of this question. This is supposed to be a character witness. It is not formed in the legal manner.
“THE COURT: I am going to sustain the objection.”

In his bill of exception, appellant again asked Williams if, to her knowledge, appellant had been previously convicted of a criminal offense. Williams answered:

“. . .1 did ask several direct questions about this to Joe and I think Mr. Mobley did make an objection, originally, about whether or not I had verified any information. My job was that of a psychologist, not an investigator, so what Joe said to me directly was that he had not been in trouble at all, even as a child in school, when a lot of kids get into minor scrapes. He was not in any of this kind of difficulty at any time and he made it very clear. I went back over this point not once or twice but several times, and he made it very clear this was the first time that he had been involved in any kind of serious legal or any other kind of legal act or behavior.”

It is obvious that Williams’ testimony was based on what appellant had told her about his past. As such, it was self-serving and hearsay. In a case similar to this, this Court held that such testimony was of no probative value, even though the testimony had been admitted without objection. Mendoza v. State, 522 S.W.2d 898 (Tex.Cr.App.1975). Moreover, appellant’s sister testified from her own knowledge that appellant had never before been arrested. The error, if any, in sustaining the prosecutor’s objection to the appellant’s questions was harmless. See Preston v. State, 481 S.W.2d 408 (Tex.Cr.App.1972); Wagoner v. State, 402 S.W.2d 738 (Tex.Cr.App.1966).

The second instance of which appellant complains occurred when he asked Williams if all cases of child abuse in Nueces County are reported. The State’s objection that the question was irrelevant was sustained. In appellant’s bill of exception, Williams testified that only one-tenth of all cases are reported, and that of the 5,000 cases reported in the previous year, 1,500 had been verified. Appellant argues that this evidence was relevant to his character, in that it shows that appellant’s conduct was part of a widespread epidemic.

The trial court did not err in sustaining the State’s objection. The county-wide total of crimes of the sort committed by a defendant is of slight relevance, if any, to the proper punishment to be assessed in a particular case. Furthermore, to have informed the jury of the widespread epidemic of child abuse might very well have led the jury to assess a harsher punishment.

The indictment in this case contains three counts. The first two counts allege the offense of murder under V.T.C.A. Penal Code, Sec. 19.02(a)(1) and (a)(2). The third count alleges the offense of injury to a child. V.T.C.A. Penal Code, Sec. 22.04. Although the State abandoned the third count, the trial court charged the jury on injury to a child, as well as on both forms of murder, voluntary manslaughter and aggravated assault.

Appellant contends that the trial court erred in charging on injury to a child, which he argues is not a lesser included offense of murder. The State argues that injury to a child is a lesser included offense of murder when the deceased is fourteen years of age or younger.

This Court need not decide this question. An error in the charge does not require a reversal of the judgment unless,the error was calculated to injure the rights of the defendant, or denied him a fair and impartial trial. Art. 36.19, V.A.C.C.P. Appellant was convicted of murder. He does not suggest how the error, if any, in including the charge on injury to a child, a second degree felony, was calculated to injure his rights or otherwise denied him a fair trial. Since injury to appellant from the charge is not apparent, this ground of error is overruled.

Appellant contends the trial court erroneously refused his requested charge on assault. He argues that the charge was required by the evidence that he did not intend to harm or kill his son.

Appellant misapprehends the nature of the offense of assault. A person commits an assault if he intentionally, knowingly, or recklessly causes bodily injury to another. V-.T.C.A. Penal Code, Sec. 22.01(a)(1). A person commits an aggravated assault if he commits an assault and causes serious bodily injury to another. V.T.C.A. Penal Code, Sec. 22.02(a)(1). A bodily injury is serious if it causes death. V.T.C.A. Penal Code, Sec. 1.07(a)(34). Since it is undisputed that the deceased died as a result of bodily injuries inflicted by appellant, the trial court did not err in refusing to charge the jury on assault. See Bowles v. State, 550 S.W.2d 84 (Tex.Cr.App.1977); Watson v. State, 386 S.W.2d 803 (Tex.Cr.App.1965).

Appellant requested that the following charge be given to the jury:

“The burden of proof in all criminal cases rests upon the State throughout the trial, and never shifts to the Defendant.
“All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial. In case you have a reasonable doubt as to Defendant’s guilt after considering all the evidence before you, and these instructions, you will acquit him.”

This charge was refused, but the following paragraphs were included in the trial court’s charge.

“You are instructed that the grand jury indictment is not evidence of guilt. It is the means whereby a Defendant is brought to trial in a felony prosecution. It is not evidence, nor can it be considered by you in passing upon the innocence or guilt of this Defendant.
“In all criminal cases the burden of proof is on the State. The Defendant in a criminal case is presumed to be innocent, until his guilt is established by legal evidence, beyond a reasonable doubt, and if you have a reasonable doubt as to the guilt of the Defendant, you must acquit him and say by your verdict ‘not guilty.’ ”

The charge given by the trial court was substantially similar to that requested by appellant and adequately protected appellant’s rights with regard to the matters contained therein. The trial court did not err in refusing the requested charge. See and cf. Art. 38.03, V.A.C.C.P., and V.T.C.A. Penal Code, Sec. 2.01.

In two multifarious grounds of error, appellant complains of four instances of allegedly improper jury argument by the prosecutor. The first instance is as follows:

“. . . Aside from a few elementary instructions, over nine pages of the charge and the instructions of this jury is telling you how you can turn him loose or how you can find him guilty of a lesser offense.
“The law isn’t fair to a Defendant, in a case such as this, when page after page after page tells you how you can turn this man loose or how you can find him guilty of a lesser offense other than murder of a three-year-old helpless, defenseless boy. Only two paragraphs in this charge are really, in my opinion, devoted to Joe de Russe, paragraph 7 and paragraph 11. You have got some forty-two paragraphs and to explain to you how you can find the killer and the murderer of Joey de Russe guilty of first degree murder those two paragraphs. Everything else in this charge and in these instructions are geared to show you how you can let him go or find him guilty of a lesser included offense, as the law describes it.
“MR. THORPE: Your Honor, I would object at this time. Mr. Mobley’s argument is prejudicial, outside the record and I would object to his argument as being prejudicial to the defendant at this time.
“THE COURT: I will overrule the objection. Mr. Mobley, keep within the Court’s charge.”

Appellant’s objection was general, and he did not request relief in the form of an instruction. Under the circumstances, nothing is presented for review. Patterson v. State, 509 S.W.2d 857 (Tex.Cr.App.1974).

Appellant contends that the prosecutor “unfairly characterized the charge of the Court” when he argued:

. . You see what they can do? Do you see what a defendant can do? He can throw out what we call a shotgun defense, looking in that charge at the number of ways that you can go to find him .
“MR. THORPE: Your Honor, I’m going to object to that as being prejudicial and move for a mistrial at this time. Mr. Mobley is going outside the record, he is insinuating that the charge is not the Court’s charge and I would object to the Court and move for a mistrial.
“THE COURT: Mr. Thorpe, I’m going to overrule your motion for a mistrial, but I want Mr. Mobley — The Court’s charge is the one that is prepared and it is not the Defendant’s charge, it is the Court’s charge and the law applicable to this case and the jury will be so instructed.”

In response to appellant’s objection, the trial court instructed the jury that the court, and not the defendant, prepared the charge. This was sufficient to overcome any insinuation to the contrary in the prosecutor’s statement, and the trial court did not abuse its discretion in overruling the motion for a mistrial.

Appellant contends that the prosecutor injected unsworn testimony when he stated:

“I submit that according to Dr. Kut-nick, relating his history to this man, when he hung him on that door, when he was tied and when he made that last yell for help or mercy .
“MR. THORPE: Your Honor, that is so far outside the record, I am going to object. I move for a mistrial at this time. I ask the Court to instruct the jury. There is nothing in the record that says anything about . . •.
“THE COURT: I am going to overrule the motion for mistrial.
“I do believe you are outside the record and I am going to sustain that objection, Mr. Mobley.
"MR. MOBLEY: All the evidence in this case, you heard Dr. Kutnick say that according to his history and talking to this man right here, that he tied him up, tied him to a door, and, this is in the record, then he went to him, after he heard him scream, and he was not moving. He was dead. How long did that child hang from that door under the evidence in this case. Before they ever went to see him, to find out he was dead, know what they were doing?”

The State argues that the prosecutor’s argument was a reasonable deduction from Dr. Kutnick’s testimony. Moreover, appellant failed to secure an instruction to disregard, and the prosecutor repeated in essence the same argument without objection. Under the circumstances, the error, if any, does not require reversal of the judgment. Patterson v. State, supra.

During his argument at the punishment stage, the prosecutor stated:

“MR. MOBLEY: You know you can’t, you can’t hang this man from a door like he did Joey.
“MR. THORPE: Your Honor, again, that is outside the record. There is nothing that says Joey was hung from the door and then died as a result from hanging from the door.
“MR. MOBLEY: The psychiatrist himself said he tied him to a door .
“THE COURT: The jury will remember the testimony that has been elicited from Dr. Kutnick. Continue, Mr. Mob-ley.”

An objection to argument must be pressed to the point of procuring a ruling or the objection is waived. The statement by the trial court that the jury would remember the evidence is not sufficient to preserve error; nothing is presented for review. Mayberry v. State, 532 S.W.2d 80 (Tex.Cr.App.1976); Ñichols v. State, 504 S.W.2d 462 (Tex.Cr.App.1974).

In his final ground of error with respect to the prosecutor’s argument, appellant contends that the prosecutor attempted to prejudice the jury against appellant’s argument when he stated:

“Mr. Thorpe will have a chance to talk to you and I will have a chance to close after he talks to you, to comment on some of the things that he brings up, but keep in mind all of these things that he is going to try to cloud your mind with, all these theories and all the different ways that he is going to try to get you to find some reasonable doubt, it doesn’t make any difference to him how big it is, so long as one of you has it.
“MR. THORPE: Your Honor, I’m going to object to that as being improper and I move for a mistrial, a jury instruction, and I request the Court to instruct Mr. Mobley if he continues his improper argument I request he be held in contempt of court.
“MR. MOBLEY: We have a right to comment on what the jury can do, according to the charge.
“THE COURT: Mr. Mobley, I will instruct — I will overrule the motion for mistrial and, ladies and gentlemen, you recall the evidence that you have heard in this case. I want you to draw whatever reasonable inference that you are able to draw from that evidence . . . ”

Appellant’s objection was, in effect, sustained and the jury was given a corrective instruction. Appellant did not renew his motion for mistrial. Nothing is presented for review. Reese v. State, 531 S.W.2d 638 (Tex.Cr.App.1976); Nevarez v. State, 503 S.W.2d 767 (Tex.Cr.App.1974).

On April 29,1976, appellant and an assistant district attorney entered into a plea bargain. agreement under which appellant would plead nolo contendere to the offense of injury to a child and a jury would be impaneled to assess punishment. On May 7, three days before trial was set to begin, the district attorney informed appellant’s appointed defense counsel that he was withdrawing the plea bargain agreement. On May 10, appellant requested and received a continuance until July 5 in order to prepare for trial in light of the withdrawal of the agreement. Selection of the jury began on July 12.

On June 14, appellant filed a motion requesting that the trial court order the district attorney to honor the plea bargain agreement. Appellant contends that the trial court erred in overruling this motion.

Where a defendant enters a plea of guilty or nolo contendere pursuant to a plea bargain agreement, the State is bound to carry out its side of the bargain. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 20 L.Ed.2d 427 (1971); Washington v. State, 559 S.W.2d 825 (Tex.Cr.App.1977); McFaddin v. State, 544 S.W.2d 159 (Tex.Cr.App.1976); Ex parte Jasper, 538 S.W.2d 782 (Tex.Cr.App.1976). However, a defendant has no right to demand that the State enter into a plea bargain. Morano v. State, 570 S.W.2d 550 (Tex.Cr.App.1978). In the instant case, the agreement was withdrawn prior to the entry, of appellant’s plea. Appellant was in the same position he would have been in had no agreement been made, or had the trial court indicated that it would not follow the agreement and appellant withdrawn his plea. Art. 26.13, V.A.C.C.P.; Gibson v. State, 532 S.W.2d 69 (Tex.Cr.App.1975).

There can be little doubt that the withdrawal of the agreement by the district attorney could have prejudiced appellant had he been forced to trial without adequate time to prepare his defense. But the trial court gave appellant a two-month continuance after the agreement was withdrawn, and appellant did not request a further continuance. Appellant argues that he was prejudiced by having to enter a not guilty plea after newspaper stories had been published stating his willingness to plead guilty to injury to a child. Aside from the fact that appellant had only agreed to plead nolo contendere, he has failed to point out any instance in which he was forced to accept a juror who had heard of the plea bargain agreement. In the absence of any showing of harm, we hold that the prosecutor’s withdrawal from the plea bargain agreement prior to the entry of a plea by appellant was not reversible error.

Finally, appellant contends that the trial court erred in allowing the State to be represented by two attorneys while he was afforded only one attorney. There is no rule of law limiting the number of attorneys who may appear for the State or which prevents a district attorney from conducting the prosecution of a case. Mikchel v. State, 298 S.W.2d 829 (Tex.Cr.App.1957).

The judgment is affirmed.

CLINTON, J., dissents from the disposition of the ground of error concerned with the plea bargain.

      . In a separate proceeding, Elsa DeRusse entered a plea of guilty to the offense of injury to a child, and was sentenced to imprisonment for twenty years.

      . In 1977, after appellant’s trial, Subsection 3(f) section 3(g); the text was not changed. of Art. 46.02, V.A.C.C.P., was relettered as Sub-


author: DOUGLAS, Judge.

text:
    Frank PUENTE, Appellant, v. The STATE of Texas, Appellee.
    No. 56387.
    Court of Criminal Appeals of Texas, En Banc.
    April 11, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for driving a motor vehicle upon a public highway while intoxicated. There is no transcript of the testimony and no brief has been filed. There is no contention of any error on appeal.

The punishment was assessed by the jury at one year in jail and a $500 fine. The jail time and $200 of the fine were probated. This Court has recently held in Franklin v. State, 576 S.W.2d 621 (Tex.Cr.App.1978), that where the jail time and a fine have been assessed in a misdemeanor case that the jail time cannot be probated. It also noted that the trial court could not exact a portion of the penalty not probated. Under that case, the judgment must be reversed. Accordingly, the judgment is reversed and the cause is remanded.

      . The writer did not agree then and does not agree now with the Franklin case but the majority controls.


author: ODOM, Judge.

text:
    John HARGROVE, Appellant, v. The STATE of Texas, Appellee.
    No. 57090.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 11, 1979.
    Michael W. George, Denton, for appellant.
    Jerry Cobb, County Atty., Denton, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated sexual abuse. Punishment was assessed at ten years.

In his first two grounds of error appellant challenges the sufficiency of the evidence to show there was contact between appellant’s genitals and the mouth of the complaining witness as alleged in the indictment, and to show that the complaining witness used or was prevented from using such resistance as would be exerted by a person of ordinary resolution.

With respect to the first ground of error, the record reflects the following questions and answers during direct examination of the prosecutrix:

“Q. All right. And what did he make you do?
“A. He forced me to commit oral sodomy.
“Q. What do you mean by ‘oral sodomy’?
“A. He forced my head over his genitals.
“Q. All right. In other words, he made you take his penis into your mouth, is that correct?
“A. Yes, sir.
“MR. GEORGE: Objection, Your Hon- or; it’s extremely leading.
“THE COURT: I will sustain the objection as to leading.
By Mr. Cobb:
“Q. What exactly did he make you do in ordinary terms?
“A. He put my head over his penis and then he raised it up and he said, ‘You’re not doing it right,’ and then he started talking about circumcision or something like that and he started explaining to me how he wanted it done.
“Q. All right. And did you do what he asked you to do?
“A. Yes, sir, I did.
“Q. Was he circumcised?
“A. I don’t know. I couldn’t see.
“Q. All right. Did he reach an orgasm?
“A. Yes, sir, he did.”

This evidence was sufficient.

Regarding the second ground of error on the sufficiency of the evidence, we first observe that the statutory standard of V.T. C.A., Penal Code Sec. 21.04(b)(2), is not that the victim use or be prevented from using such resistance as would have been used by a person of ordinary resolution, but it is instead that the accused compel submission or participation “by any threat, communicated by actions, words, or deeds, that would prevent resistance by a person of ordinary resolution, under the same or similar circumstances, because of a reasonable fear of harm.” Sec. 21.04(b)(2), supra. The testimony in the record before us shows appellant induced the prosecutrix to accompany him in his car on the pretext of delivering tickets to various businesses in Den-ton. He then drove her to a secluded spot on a dirt road and told her various stories of being involved with the mafia, of being watched at that time and place by his boss and other persons, of a pack of wild dogs loose in the area, and of having been injured himself by the group he was involved with. He told her they were in too deep with that operation to back out and that she would have to submit to sexual relations with one of the other men or with appellant himself. He pulled a knife and flashed it in her face, and told her of another girl who had been cut up by the group he was involved with. The prosecutrix was distraught and had been crying from when he first parked on the dirt road and began to tell her of their “situation.” We find the evidence is sufficient and overrule the ground of error.

In his fifth ground of error appellant asserts there was no corroboration of the prosecutrix as required by Art. 38.07, V.A.C.C.P., which provides in part:

“A conviction under Chapter 21, Penal Code, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within six months after the date on which the offense is alleged to have occurred. . . . ”

The prosecutrix here testified that she told her roommate of the offense on the day it occurred, and reported it to the police the next week. Thus, under the express terms of the statute no corroboration was required. This ground of error is overruled.

In his fourth ground of error appellant asserts that at the punishment stage evidence was admitted over objection that was not within the scope of Art. 37.07, Sec. 3(a), V.A.C.C.P. He argues in his brief, “The State was apparently attempting to bolster its case by introducing evidence which went to the guilt or innocence of the appellant.” We decline to hold it is error to admit evidence at the punishment stage that would have been admissible at the guilt stage, as appellant appears to propose that we should. Furthermore, the provision of Art. 37.07, supra, relied on by appellant is not an exclusive list of matters that may be shown at the punishment stage. See, Williams v. State, 535 S.W.2d 637 (Tex.Cr.App.), and authorities cited and discussed there.

Finally, appellant asserts improper jury argument by the prosecution. No objection was urged at trial, so nothing is presented for review. See, Cain v. State, 549 S.W.2d 707, 715 (Tex.Cr.App.).

The judgment is affirmed.


text:
    Murray JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 57104.
    Court of Criminal Appeals of Texas, Panel No. 3.
    April 11, 1979.
    Jack R. Chappell, Lubbock, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Convicted of the misdemeanor offense of possessing beer for sale in a dry area and being assessed punishment at confinement for six months in the Floyd County Jail and a $500.00 fine, appellant brings this appeal on four grounds of error. He challenges validity of a search warrant on a multifarious ground that the affidavit for search warrant does not state when the information relied on was received and that both failed to identify the person or persons who occupy and control the premises; he contends the evidence is insufficient to prove “possession” as alleged; the charge of the court is assailed for failing to charge on the law of circumstantial evidence and he complains that the information is fundamentally defective for failing to allege a culpable mental state. Of course, if the last contention is valid the judgment must be reversed and the prosecution dismissed.

Section 101.31, V.A.T.C., Alcoholic Beverage Code, that became effective September 1, 1977, forbids any person in a dry area to “possess with intent to sell an alcoholic beverage.” That section was derived from Article 666-4(b), P.C., 1925, the Texas Liquor Control Act, which declared it unlawful for any person in a dry area to “possess for the purpose of sell beer etc.” The offense here is alleged to have occurred January 16,1977 and the information is, therefore, couched in terms of the former act — “possess for the purpose of sale an alcoholic beverage, to-wit, beer.” In McBride v. State, 137 Tex.Cr.R. 236, 129 S.W.2d 315 (1939) this Court observed that a complaint and information under that act should charge “the offense as defined under the present statute.” The information here does so.

Pretermitting a determination of whether Titles 1, 2 and 3 are applicable to the late Texas Liquor Control Act and the present Alcoholic Beverage Code through operation of Section 1.03(b), V.A.P.C., Penal Code, we proceed to determine whether the complaint, cast in terms of the statute, sufficiently alleges a culpable mental state.

By definition “purpose” means that which one sets before him to accomplish; “an end, intention, or aim, object, plan, project,” Black’s Law Dictionary, Revised 4th Edition, 1400. The revisor’s note to Section 101.31 reports that language of the former act, “for the purpose of sale .,” was eliminated because all of the activity proscribed is “included in the prohibition against possession with intent to sell.” Possession, within the contemplation of the act, requires “the care, control, and management of the beer,” Alston v. State, 154 Tex.Cr.R. 148, 226 S.W.2d 443 (1950) — much like the definition in Section 1.07 of the Penal Code, “actual care, custody, control, or management.” But mere possession does not offend the act. Possession must be coupled with a purpose or intent to sell. Alston, supra, 226 S.W.2d at 445. Thus the culpable mental state of this offense is not directed at the fact of possession but the “reason.” for possession. The gravamen of the offense is possession with the requisite intent and an information that alleges the act of possession “for the purpose of sale” states the requisite intent. Compare Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1976). It also follows that one who intends to sell the beer in his care, control and management “intentionally” engages in the act of possessing the beer. Ground of error four is overruled.

Reverting to ground of error one, challenging sufficiency of the affidavit for and validity of the search warrant, we quote the “probable cause” representations in their entirety:

“That your affiants have received information that alcoholic beverages are being kept, stored, possessed, and sold at the above described premises in violation of the Texas Liquor Control Act. Our informer has personally observed large quantities of alcoholic beverages being stored and sold at these premises in violation of the law, and we have relied on information from this informer in the past and have found it to be true and correct and we do believe this information to be true and correct. Our informer insists that his identity be kept secret.”

In Odom v. State, 121 Tex.Cr.R. 209, 50 S.W.2d 1103 (1932) it was alleged that at the described location certain property “is being used as a means of violating the intoxicating liquor laws” and the grounds for the belief were that the affiants, themselves, “purchased one pint of liquor or whiskey . . . out of the above described building.” The Court held that it did not appear from the affidavit that the act or event upon which probable cause was based occurred within a reasonable time before the affidavit was made. In Garza v. State, 120 Tex.Cr.R. 147, 48 S.W.2d 625, 627 (1930) the affidavit alleged that at the described place intoxicating liquors “are illegally possessed, sold and manufactured . in violation of the law” by the party named and for probable cause one of the affiants stated that he “personally saw a man leave the house aforementioned with some beer he claimed to have purchased therein.” This Court found that nothing in the statement conveyed any definite idea as to when the described incident took place, held that the right to issue a search warrant is dependent upon a sworn statement “making clear” the right to issue it and that such affidavit is “inadequate if it fails to disclose facts which would enable the magistrate to ascertain from the affidavit that the event upon which the probable cause was founded was not so remote as to render it ineffective,” and concluded that the affidavit was insufficient. More recently we held in Heredia v. State, 468 S.W.2d 833 (Tex.Cr.App.1971) following Odom and Garza, supra, that the facts in an affidavit “must be so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at the time.” Here, as in Heredia and Garza the supporting statement was that the informer “has personally observed” without any indication of when the observation was made.

Only recently, in Gonzales v. State, 577 S.W.2d 226 (1979) we reached the same conclusion regarding an affidavit for search warrant for alcoholic beverages containing substantially the same defects we find in the one before us.

Sustaining ground of error one requires that we reverse the conviction and remand the case. Accordingly, we do not pass on the sufficiency of the evidence to prove possession but if another trial is had and the evidence is essentially the same we believe the trial court would not be amiss in submitting a charge on circumstantial evidence.

For the reasons stated judgment of conviction is reversed and the cause remanded.

      .Section 1.03(b) applies the provisions of those titles to offenses defined by other laws “unless the statute defining the offense provides otherwise.” Article 667-2 of the Liquor Control Act and Section 1.06 of the Alcoholic Beverage Code provide that the manufacture, sale, distribution, transportation, and possession of beer or alcoholic beverages “shall be governed exclusively by the provisions of’ the act or the code. Whether this language “provides otherwise” within the meaning of Section 1.03(b), Bocanegra v. State, 552 S.W.2d 130 (Tex.Cr.App.1977), is a question we leave for decision another day. See, however, Morrison and Blackwell, 7 Texas Practice, Criminal Forms Annotated 135, § 24.04: “A. B. did then and there intentionally and knowingly possess for the purpose of sale . . . ”

      . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

      . In that burglary case it was held that the conduct that is the gist of the offense is entry into the habitation with the requisite intent so that an indictment alleging entry “with the intent to commit theft” alleges a culpable mental state.


author: ONION, Presiding Judge.

text:
    Ex parte McDonald A. SPENCER, Jr.
    No. 59640.
    Court of Criminal Appeals of Texas, En Banc.
    April 11, 1979.

      John Paul Davis, Beaumont, for appellant.
    James S. McGrath, Dist. Atty. and Paul E. Ñaman, Asst. Dist. Atty., Beaumont, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal stems from a district court’s denial of an application for writ of habeas corpus.

The record reveals the Juvenile Court of Jefferson County certified the petitioner to stand trial as an adult for allegedly committing three offenses of aggravated robbery. Jurisdiction was transferred to the Criminal District Court of Jefferson County. No examining trials were conducted in the District Court, but at the April term, 1977, of the grand jury of Jefferson County, the petitioner was indicted for the three offenses. On September 7,1977, the petitioner pleaded guilty to the three indictments, but before he was sentenced the case of Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977), was decided. Based upon the Mene-fee decision, the District Court dismissed the indictments because the petitioner had not been afforded examining trials. On June 6, 1978 an examining trial or trials were held on the three offenses. The State announced it would offer no evidence as to one of the offenses. It offered only the confession as to one of the offenses, which apparently did not state the name of the complaining witness or other details so as to identify the offense, and admitted another robbery was committed the same day without more so that the offense could be identified as one of the robberies charged. The judge noted that the confession was not sufficient to identify any of the offenses charged. At the conclusion of the examining trials, the judge announced that he was dismissing all three “complaints” since the State had failed to show probable cause to bind the petitioner over to the grand jury for any of the three cases. The judge announced he was retaining jurisdiction over the petitioner until July 7, 1978. He also stated, “I will not take any action on returning him to the custody of the Juvenile Court until July seventh. If you (prosecutor) care to file additional complaints or indictments are returned, and I have no idea what the status of the law is . The setting on July seventh is to determine whether or not in Cause No. 3222 — J the defendant should be returned to the custody of the Juvenile Court . . .

Prior to July 7th, the grand jury returned new indictments against the petitioner for the same three offenses. The record does not reflect whether the court proceeded with a formal hearing on July 7th, but the docket sheet reflects that on that date petitioner was arraigned, pleaded not guilty and a trial date was set on these cases. On August 21, 1978, petitioner filed this application for a writ of habeas corpus and it was denied by the trial court. Notice of appeal was given.

Petitioner contends that the new indictments returned against him are void and should be set aside because at the examining trial or trials the District Court found no probable cause on any of the causes, dismissed the “complaints” and did not bind him over to the grand jury, and he did not afford him an opportunity to be remanded to the Juvenile Court. Petitioner relies upon Ex parte Menefee, supra, and V.T.C.A., Family Code, § 54.02(h). Ex parte Menefee, supra, held that an indictment returned against a juvenile after a discretionary transfer from the juvenile court is void if an examining trial in district court has not been afforded the juvenile prior to the return of the indictment. In Ex parte Menefee, supra, the court wrote:

“It is clear from these enactments that the legislative intent has been that a three step procedure be followed before a juvenile, sixteen and later fifteen years old or older, is tried in district court as an adult. At each step safeguards were provided. If the juvenile court decides to retain jurisdiction at the hearing to determine if the court should waive jurisdiction and certify the juvenile for criminal proceedings, that ends the matter with regard to certification. The juvenile then will be handled as a juvenile. If there has been certification and the district court, following an examining trial, decides to remand the juvenile to juvenile court, then the juvenile will not be tried as an adult but will be subject to the jurisdiction of the juvenile court. If the juvenile, after an examining trial in district court, is bound over for action by the grand jury and the grand jury does not indict, the district court certifies such failure to indict to the juvenile court and the jurisdiction of the case is resumed by the juvenile court. Thus, at any of the three steps if there is a. decision not to prosecute the juvenile as an adult, then the juvenile will not be so prosecuted.
“While there have been changes in the language in the various enactments, the purpose and basic procedure has remained the same.”

See also White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979); Jones v. State, 576 S.W.2d 853 (Tex.Cr.App.1979); Ex parte Gloston, 579 S.W.2d 212 (Tex.Cr.App.1979); Ex parte Hunter, 577 S.W.2d 496 (Tex.Cr.App.1979); Ex parte Chatman, 577 S.W.2d 734 (Tex.Cr.App.1979).

In the instant case there was an examining trial, although the trial court, and rightly so, found that the State had not presented sufficient evidence to establish probable cause to bind the petitioner over to the grand jury. Does the fact that an examining trial was accorded, regardless of the outcome, change the result called for by Menefee and White, etc.? We do not so conclude. Ex parte LeBlanc, 577 S.W.2d 731 (Tex.Cr.App.1979), is dispositive of the question. In LeBlanc, after finding the indictment void, citing Menefee and White and Jones, this court wrote:

“While it is not uncommon nor improper for a grand jury to return an indictment against an adult discharged at an examining trial, we conclude that such is not possible in the case of a juvenile because of the three vital steps that the Legislature has provided must be accomplished before a juvenile may be tried as an adult. Ex parte Menefee, supra. Here the State faltered at the second vital step when the court discharged appellant at the examining trial. We find that such action terminated the criminal proceedings against appellant and effectively remanded appellant to the jurisdiction of the juvenile court. To hold otherwise would render the examining trial a meaningless sham because the State could simply refuse to put on any evidence and then take the juvenile before the grand jury, thus, depriving the juvenile of the valuable right of a meaningful examining trial as provided by the Legislature in V.T.C.A., Family Code, § 54.02.”

We find it passingly strange that while appellant’s cases were apparently such as to cause the juvenile court to certify him for discretionary transfer to the district court and were such as to cause the grand jury to prematurely indict, that the State could not establish probable cause at the examining trial for any of the cases, unless these cases were obviously designed or “set up” by the State and the trial court as test cases for this court. Nevertheless, we conclude, under the facts presented to us, that Ex parte LeBlane, supra, is controlling.

The judgment is reversed and remanded.

      . The statement of facts of the examining trials (which were consolidated) are in the habeas corpus record before us. The record reflects that the confession was introduced and the court reporter’s note reflects the confession is set out on the following page which, however, is blank.

      . These statements were orally made and are reflected in the statement of facts. We find no other orders, oral or written, in the record.

      . The District Attorney has filed no brief.

      . See Ex parte Porter, 16 Tex.App. 321 (1884).

      . Article 16.17, V.A.C.C.P., provides:
      “After the examining trial has been had, the judge shall make an order committing the defendant to the jail of the proper county, discharging him or admitting him to bail, as the law and facts of the case may require. Failure of the judge to make or enter an order within 48 hours after the examining trial has been completed operates as a finding of no probable cause and the accused shall be discharged.”
      When this statute is considered together with V.T.C.A., Family Code, § 54.02, we consider the same to be in harmony with the LeBlane opinion.