text:
    William J. TURPIN et ux., Plaintiffs-Appellants, v. David L. WATTS et al., Defendants-Respondents.
    No. 10962.
    Missouri Court of Appeals, Springfield District, En Banc.
    Oct. 4, 1978.
    John L. Walker, Jr., Phillips, McElyea, Walker & Carpenter, Camdenton, for plaintiffs-appellants.
    John E. Curran, Lake Ozark, for defendants-respondents.
   PER CURIAM:

Plaintiffs sued to enjoin defendants from completing a building. The case was court-tried. On June 27, 1977, the court announced that the case would be taken under advisement upon filing of briefs. Thereafter on January 18, 1978, the court made a docket entry finding the issues in favor of defendants and against plaintiffs. No judgment was entered at that time. Plaintiffs filed a notice of appeal from “the appealable order entered in this action on the 18th day of January, 1978.” It was not until June 29, 1978, that the circuit court entered final judgment in the cause.

The appeal must be dismissed because no notice of appeal has been filed from the judgment of June 29,1978. We incorporate the reasoning set forth in Pomeroy v. Kympton, 572 S.W.2d 505 (Mo.App.1978). The dismissal shall be without prejudice to apply for leave to file a notice of appeal out of time. V.A.M.R. 81.07(a).

All concur.


source: Caselaw Access Project

author: MORRISON, Judge. DOUGLAS, Judge ONION, Presiding Judge. DALLY, Judge,

license: Public Domain

text:
    Paul Ray THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 50941.
    Court of Criminal Appeals of Texas.
    March 10, 1976.
    State’s Motion for Rehearing Denied Oct. 18, 1978.

      Roy B. Johnson, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Gary Love and Jay Ethington, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal from an order revoking probation.

Appellant was convicted of possession of marihuana on May 30,1973, and his punishment was assessed at two years probated.

A motion to revoke probation was filed on January 17, 1975, alleging, among other things, that appellant had on January 11, 1975, possessed a controlled substance, to-wit: biphetamine.

Appellant’s first contention is that the search of his automobile which resulted in the finding of the biphetamine capsules was without probable cause and we agree.

The record reflects that Dallas Police Officer Worth saw a 1974 Datsun automobile make a left turn at the intersection of Canada Drive and North Hampton Road where only a right turn is permitted. Worth and his partner, Officer Harrell, proceeded to stop the Datsun. The appellant was the driver and had no driver’s license. The appellant was placed in the back seat of the patrol car while Officer Harrell sat in the front seat. At this point Officer Worth returned to appellant’s car and looked through the window at some objects lying on the right front bucket seat. He was able to see large medical bottles with prescriptions on them. He opened the door and examined one bottle and found it to be cough medicine. He noted that an empty bottle had a prescription from Ft. Leonard Wood, Missouri. He then picked up a coat lying in the seat and in one of the pockets he found a bottle containing biphetamine pills. The possession of these pills is the basis for this revocation.

The appellant did not consent to the search. Appellant was clearly not in a position to leave or lunge for any weapon or to seize and destroy any evidence.

We have concluded that the trial court was in error in finding that the officers had probable cause to enter the automobile. They had no prior information about the appellant or his automobile. See Rushing v. State, Tex.Cr.App., 500 S.W.2d 667. The stop was for a traffic offense, and the appellant made no furtive gestures. See Wilson v. State, Tex.Cr.App., 511 S.W.2d 531. Cf. Borner v. State, Tex.Cr.App., 521 S.W.2d 852. The facts and circumstances within the officer’s knowledge at the time of the initial stop and prior to the search of the automobile would not warrant the belief that the appellant had committed or was committing a crime other than the traffic offense. See Frazer v. State, Tex.Cr.App., 508 S.W.2d 362 (Opinion on Appellant’s Motion for Rehearing).

The search of appellant’s automobile was not a search incident to arrest. Worth testified that appellant was being detained while a traffic ticket was being written and was not placed under arrest until after the pills were found. Cf. Wussow v. State, Tex.Cr.App., 507 S.W.2d 792. Appellant was not in custody at the time of the search, and thus the search was not incident to arrest for the traffic violation. Cf. U. S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.

The seizure of the pills cannot be upheld under the plain view doctrine. Prescription drugs are not inherently contraband, stolen goods or objects dangerous in themselves. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Cf. Hernandez v. State, Tex.Cr.App., 523 S.W.2d 410. The mere viewing of bottles with drugstore labels on them did not authorize the officers to enter the automobile and search the jacket or seize the pills.

Having so concluded, we find that the trial court abused its discretion in revoking probation.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge

(dissenting).

The majority reverses the conviction on the grounds that the search was illegal even though appellant took the stand and admitted that he possessed the biphetamine.

When a defendant testifies that he possessed the contraband, he waives any contention concerning the legality of the search. Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974); Sims v. State, 502 S.W.2d 730 (Tex.Cr.App.1973); Hunnicutt v. State, 500 S.W.2d 806 (Tex.Cr.App.1973); Creel v. State, 493 S.W.2d 814 (Tex.Cr.App.1973); Moulton v. State, 486 S.W.2d 334 (Tex.Cr.App.1972), and Palmer v. State, 475 S.W.2d 797 (Tex.Cr.App.1972). It is difficult, if not impossible, from this and previous cases to determine when the rule applies. Rules should be applied consistently and with clarity.

Sherry Láveme Rose, a. witness called by appellant, testified that the pills which had been introduced were prescribed for her the night in question. She had been in the car with appellant and they had apparently fallen out of her purse because it had a loose clip. There is other proof by the appellant that the pills were in the car.

In addition to not applying the rule that when a defendant testifies to possessing the contraband he waives the contention that a search is illegal, the majority holds that an arrest is not an arrest contrary to the statutes. The arresting officer, Robert J. Worth, testified that appellant was driving a car and made an improper turn to the left where only a right turn was authorized. Officer Worth asked appellant for his driver’s license but he did not have one. The officers then took him to the patrol car. The Legislature provides that this is an arrest.

Article 15.22, Y.A.C.C.P., provides:

“A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.”

Was appellant under arrest? Even though the officer stated that appellant was not under arrest when he was in the patrol car, he stated that appellant was not free to leave at any time after he was stopped. Courts are not bound by legal conclusions of others when facts do not support such conclusions.

The drugs were found in appellant’s coat pocket which was on the seat of the passenger side of the car. Officer Worth testified as follows when asked why the coat was searched:

“Q. (Mr. Ethington): Why did you search the coat that you gave to Thomas here before you let him put it on?
“A. We always search prisoner’s clothing to the extent that we determine if there are weapons or contraband inside that article of clothing. I wouldn’t give a man his coat without going through the pockets to make sure there wasn’t anything in there that shouldn’t have been.
“Q. It’s for your own personal safety then I take it that you’re saying you searched the coat, is that correct?
“A. Yes, sir.
“Q. Before you gave it to the Defendant?
“A. Yes, sir.”

The holding that appellant was stopped and was in the patrol car and not free to leave was not a restraint or arrest has about as much reasoning or logic as a majority of this Court’s opinion that five years’ probation was more punishment than three years in the penitentiary. See Lechuga v. State, Tex.Cr.App., 532 S.W.2d 581 (1975).

If the appellant had made an incriminating statement after he was stopped and not free to leave, would the majority hold the statement admissible on the grounds that he was not under arrest? Under past decisions the answer would be no.

The Supreme Court of the United States held in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), that Robinson, who was stopped for driving while his license was suspended, was under arrest and that a subsequent search was proper. In Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), the officers stopped an automobile. The Supreme Court of the United States wrote:

“ . . . When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete. . . ”

The Uniform Act Regulating Traffic on Highways, Article 6701d, Section 153, Y.A. C.S., provides:

“Any peace officer is authorized to arrest without warrant any person found committing a violation of any provision of this Act.”

Section 148(a) of the same Article provides:

“Whenever a person is arrested for any violation of this Act punishable as a misdemeanor, and such person is not immediately taken before a magistrate as here-inbefore required, the arresting officer shall prepare in duplicate written notice to appear in court containing the name and address of such person, the license number of his vehicle, if any, the offense charged, and the time and place when and where such person shall appear in court. Provided, however, that the offense of speeding shall be the only offense making mandatory the issuance of a written notice to appear in court; and only then if the arrested person gives his written promise to appear in court, by signing in duplicate the written notice prepared by the arresting officer; and provided further, that it shall not be mandatory for an officer to give a written notice to appear in court to any person arrested for the offense of speeding when such person is operating a vehicle licensed in a state or country other than the State of Texas or who is a resident of a state or country other than the State of Texas.” (Emphasis supplied)

In Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975), this Court held that one stopped for speeding was arrested.

Since the proof shows that the appellant was violating Article 6701d, supra, the officers had a right to arrest and taken appellant into custody as authorized by Section 153 of the Act. In Wallace v. State, 467 S.W.2d 608 (Tex.Cr.App.1971), this Court wrote:

“ . . . it is well settled that when an officer sees a person violating a traffic law, he is authorized to stop him and incident to that arrest to search his person. Ciulla v. State, 434 S.W.2d 948 (Tex.Civ.App.) . .

The arrest of the appellant being legal, the question now turns to the search of the coat in the car. Does an officer, after making an arrest for a traffic violation, have the right to search that part of a car where the arrested person might readily reach a gun if he is permitted to re-enter?

If an officer stops and arrests the driver of a car for a traffic violation, he has a right to search the driver and take any weapon that the driver might reach. If the driver is seated in the car, a search for any weapon that might be readily obtained would be permissible under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

An officer making a traffic arrest is using good judgment to have a driver who has been stopped or arrested for a traffic offense get out of the car as a safety precaution. See Grego v. State, 456 S.W.2d 123 (Tex.Cr.App.1970). If an officer decides not to take a traffic violator before a magistrate or to jail, the offender will get back üito the car and it is quite possible that a weapon could be reached and the officer could be shot.

Our Legislature has provided for such arrests and the Supreme Court of the United States has upheld arrests and searches for traffic violations with good reason. A fugitive from a murder, robbery or any other crime who might not want an officer to check to see if he is wanted for some offense could obtain a gun after returning to his car and attempt to shoot the officer who had stopped him.

In the ease of People v. Cannon, First Dist. 1974, 18 Ill.App.3d 781, 310 N.E.2d 673, a car was stopped because the brake lights were out. When the driver could not produce a license, the officer asked him to get out of the car. Passengers were also asked to get out of the car. After searching Cannon, the officer found a .38 caliber pistol under the seat. Another pistol was found in the search. The Illinois Court cited Chimel v. California, supra, in upholding the search of the automobile by the officer after the traffic arrest and wrote:

“ . . . it then became the right and duty of the officer to make at least a cursory search of the immediate vicinity of the driver’s seat. In our opinion, this type of search was not only authorized by law but it was essential to insure the safety of the arresting officer.”

In Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, Mr. Justice Black, speaking for the Supreme Court, wrote:

“The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer

See Corbitt v. State, 445 S.W.2d 184 (Tex.Cr.App.1969), and Taylor v. State, 421 S.W.2d 403 (Tex.Cr.App.1967). Agnello v. United States, 269 U.S. 20, 29, 46 S.Ct. 4, 5, 70 L.Ed. 145, 148.

In Lane v. State, 424 S.W.2d 925 (Tex.Cr.App.1967), cert. denied, 392 U.S. 929, 88 S.Ct. 2270, 20 L.Ed.2d 1387, the arrest was for a speeding violation. The conviction was for the possession of a pistol found in the glove compartment at the time of the arrest. This Court held the search to be reasonable noting that the search was not based on probable cause but a search incident to a lawful arrest, citing Hardin v. State, 387 S.W.2d 60 (Tex.Cr.App.1965).

In Sutton v. State, 157 Tex.Cr.R. 216, 247 S.W.2d 894, this Court wrote:

“There can be no claim that appellant was illegally arrested. The evidence is without dispute that the search was made after the arrest. It is a settled rule that a search warrant is not necessary in order to search the person of one under lawful arrest. 38 Tex.Jur., p. 73; Tones v. State, 48 Tex.Cr.R. 363, 88 S.W. 217, 1 L.R.A., N.S., 1024, 122 Am.St.Rep. 759,13 Ann.Cas. 455. Having a right to arrest and search appellant, he also had a right to search the car. Stokes v. State, 117 Tex.Cr.R. 307, 35 S.W.2d 727; Hayes v. State, 115 Tex.Cr.R. 644, 28 S.W.2d 556.”

In Smoot v. State, 475 S.W.2d 281 (Tex.Cr.App.1971), the arrest was for speeding. This Court held it to be an arrest and that the officers were authorized to search a cigarette box after Smoot got out of the car.

It is good police practice for officers to make a cursory search for weapons in the immediate vicinity of the driver as the Illinois court held in the Cannon case, supra.

The statutes of Texas authorize the arrest of an offender of the traffic laws and taking him into custody. This Court has upheld the search of the person after an arrest as well as a limited search of his car. The Supreme Court has upheld the arrest for traffic regulation violators and the search of their persons even though the arresting officer was not in fear of his life. It also recognizes the right of the officer to search in the vicinity of where the arrest has been made.

The search in the present ease is not unreasonable.

The order revoking probation was proper. The judgment should be affirmed.

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

The State, with leave of this court, has filed a motion for rehearing in which the State argues that the court erred in reversing the probation revocation of the appellant which was based on evidence obtained from an illegal search and seizure. The contention, which is founded on a dissent in the original opinion, is advanced that the appellant waived his objection to this evidence by taking the stand and admitting possession of the items taken in the search. Based on our reevaluation of case law and the facts as shown in the record, the State’s motion for rehearing is overruled and the judgment is reversed. In explanation of this result, we have set forth in some detail previous state law and the effects of our ruling today based on Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968).

I.

It has long been the rule of this state that the admission of improper evidence cannot be urged as grounds for reversal where the defendant gives testimony on direct examination which establishes the same facts as those objected to. Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975); Palmer v. State, 475 S.W.2d 797 (Tex.Cr.App.1972). This principle is sometimes referred to as the doctrine of curative admissibility. 5A C.J.S. Appeal and Error § 1724(3)(b) at 954 (1958). A corollary to this rule is that the harmful effect of improperly admitted evidence is not cured by the fact that the accused sought to meet, destroy, or explain it by the introduction of rebutting evidence. McLaughlin v. State, 109 Tex.Cr.R. 307, 4 S.W.2d 54 (1928); Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973); Alvarez v. State, 511 S.W.2d 493 (Tex.Cr.App.1973); 5 Tex.Jur.2d, Appeal and Error — Criminal, § 446. The distinction between these two rules was most clearly presented in Nicholas v. State, supra; at 174-175, where the following language was used:

“ . . . the improper admission of evidence over objection is rendered harmless by the unobjected-to admission of other evidence of substantially the same facts; whereas, the introduction of evidence seeking to meet, destroy, or explain the erroneously admitted evidence does not render the error harmless. The rationale should be equally clear: if a fact be proven without objection, its erroneous proof over objection, although still error, is harmless error since the same facts have been proven without objection. On the other hand, presentation of other evidence which does not prove those facts erroneously admitted, but only tends to meet, destroy, or explain the erroneously admitted evidence, can hardly be considered to cure the error within the rationale of the first rule. . . . "

Thus if a defendant takes the witness stand to refute, deny, contradict, or impeach evidence or testimony properly objected to, no waiver of the objection occurs. But if a defendant in testifying admits or confirms the truth of the facts or evidence objected to, even if attempting to create a defense based on or beyond those facts, a waiver of the objection does occur. The one possible exception to this principle is that no waiver will be found where a defendánt objects to evidence or testimony not tied directly or indirectly to the elements of the case and then in testifying himself admits those facts to be true. This exception is illustrated by Alvarez v. State, supra, in which a portion of a confession saying, “I always carry a pistol with me because I shot and killed a man in Lubbock not too long ago and am afraid of his people,” was properly objected to as showing an extraneous offense. This court found that the objection was not waived when the defendant took the stand and admitted on direct examination that the statement was true in attempting to explain the incident. This was an extraneous offense, not evidence tied to the elements of the case but useful only to show the character of the defendant. However, this case appears to contradict Robbins v. State, 481 S.W.2d 419 (Tex.Cr.App.1972); Cook v. State, 409 S.W.2d 857 (Tex.Cr.App.1966), and Meadowes v. State, 368 S.W.2d 203 (Tex.Cr.App.1963), all of which held that objection to improper evidence of an extraneous offense was waived when the defendant on direct examination confirmed such facts. We express no opinion now as to this point. However, where the defendant’s testimony refuted the State’s extraneous offense evidence, Jackel v. State, 506 S.W.2d 229 (Tex.Cr.App.1974), or where the extraneous offense was admitted on cross-examination of the defendant, Autry v. State, 159 Tex.Cr.R. 419, 264 S.W.2d 735 (1954), there was no waiver of the objection.

The distinction this court has drawn between when a defendant admits substantially the same facts thereby waiving proper objection to other testimony or evidence on those facts and when a defendant has merely sought to meet, destroy, or explain the erroneously admitted evidence and thus not waived his objection is best understood by examining the specific facts of individual cases.

The principle that a defendant can waive a proper objection by his own testimony confirming the same facts or evidence objected to was established early in Texas. In Dawson v. State, 38 Tex.Cr.R. 9, 40 S.W. 731 (1897), in a trial for conspiracy to commit arson, a letter written by a third party which was sent but never received by the defendant was admitted into evidence. This court reversed the trial court even though the defendant, when he took the stand, confirmed the identity of the party who had written the letter and then attempted to explain the contents of said letter. This court noted that “ . this did not render said letter admissible. It was admitted over his objections, and he was then driven to make the best shift he could to explain its contents.” This case, standing for the principle that making use of evidence objected to in order to refute the implication given to it by the State does not waive the objection, is similar to the more recent case of Nicholas v. State, supra, where the defense witness made use of a State exhibit, entered over proper objection, to show no penetration had occurred in the rape case. This court held there was no waiver because the use of the exhibits was a predicate for rebutting their incriminating effect, i. e., that appellant was seeking to meet and destroy the evidence rather than admitting the State’s allegations as truthful.

Other early opinions include Attaway v. State, 41 Tex.Cr.R. 395, 55 S.W. 45 (1900), in which the State’s witness, in an attempt to show motive for the murder, testified to what the deceased had said he would tell as a witness against the appellant in another case. The defendant objected to this testimony as hearsay.' The court held that the objection was not waived by the defendant introducing a witness who rebutted the testimony of the State’s witness as to what the deceased would have said. Thus there was no confirming of the facts, but a refutation of them. The court therein commented, “Of course, after illegal testimony was admitted, the defendant could but make the best of the situation, and then offer other testimony if he had it, and rebut or destroy the effect of the illegal testimony. . . ”

The first case to use the often quoted phrase “meet, destroy, or explain” was McLaughlin v. State, supra. This case led to much confusion as to the meaning of the word “explain,” in regard to whether a defendant can admit as truthful evidence he objects to and still claim his objection on the ground he is “explaining” those facts. A careful reading of the case clearly shows this is not proper and waiver occurs. On its facts, the defendant objected to the use of the evidence of intoxicating beverages seized under an improper search warrant. However, the defendant took the stand and admitted that he had on hand 420 bottles of beer, a 50 gallon barrel in which to make it, and some 200 empty bottles. His defense was that he was making and had the beer to be used by himself and wife as medicine. The court affirmed the conviction on the ground the defendant had waived the objection to the improper search and seizure noting that “None of those cases, and in fact no others known to us, hold that the accused can admit the truth of the very testimony to which he is objecting and thereafter claim injury or hurt of a reversible character arising by virtue of the admission of the testimony originally objected to.”

Other eases in which no waiver of a proper objection occurred where the defendant’s testimony only refuted and did not confirm the evidence objected to include Trollinger v. State, 153 Tex.Cr.R. 364, 219 S.W.2d 1018 (1949) (Statement made by defendant to jailer which was improperly admitted over objection and objection was not waived where defendant took the stand and gave his version of conversation which refuted or rebutted jailer’s version. The difference between “I hope all the sons-of-bitches are dead” and “They may die” is apparent and would affect the jury in their deliberation.), and Lovell v. State, 525 S.W.2d 511 (Tex.Cr.App.1975) (State introduced over objection the confession of defendant that he had hit child. Information elicited by defense counsel of defense witnesses mentioned the child beating but was intended to show that defendant’s conscious appreciation was affected by previous glue sniffing at the time of the alleged incident. This court held that appellant did not waive the objection since the questions were directed to the appellant’s state of mind, i. e., his use or non-use of glue or drugs, a fact not mentioned in the confession.)

A number of recent cases have shown that waiver of a proper objection to improper evidence occurs if the defendant admits the existence of those facts or evidence even though he is trying to “explain” the circumstances of those facts: Parker v. State, 384 S.W.2d 712 (Tex.Cr.App.1964) (Defendant testified he had the capsules in his hand thus waiving his objection, even though he went on to explain that he had just picked them up off the floor of his truck and did not know what they contained); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970) (Defendant testified on direct examination he had stated to officer he had a money box in his possession and that it had come from the Piccadilly Cafeteria, thus waiving his objection to the police officer’s testimony to those same facts.); Batiste v. State, 464 S.W.2d 149 (Tex.Cr.App.1971) (Defendant waived challenge to illegality of search producing eyeglasses introduced into evidence where on direct examination defendant testified that he had the glasses, though he claimed the officer had placed them on him.); Moulton v. State, 486 S.W.2d 334 (Tex.Cr.App.1971) (Question of legality of search producing checks was waived when defendant admitted he had possession of checks at home even though he tried to explain that his wife had brought the checks home as scratch paper for children to play with.); Creel v. State, 493 S.W.2d 814 (Tex.Cr.App.1973) (Challenge to items obtained in search of car waived when defendant took stand and admitted items were in his ear and then attempted to explain them away.); Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974) (Legality of search producing tires admitted into evidence did not have to be determined when defendant took stand and admitted the presence of the tires in his storeroom.); Lester v. State, 498 S.W.2d 927 (Tex.Cr.App.1973) (Guns taken from defendants challenged as fruits of an illegal search and seizure waived when the defendants testified on direct examination that they had the guns in their possession and admitted having an exchange of gunfire with the officers.). However, all of these cases, with the exception of Alvarez v. State, supra, were decided before or without considering Harrison v. United States, supra.

II.

The record before us shows that appellant objected to the biphetamines being admitted into evidence for the reason that they were obtained as a result of an illegal search and seizure. After the trial court erroneously overruled the objection, the record shows the following exchange on direct examination of the defendant by his counsel:

“Q. Where did you find that (the bottle of biphetamines)?
“A. On the floorboard of the car.
“Q. . . . Would you state whether or not you were in the process of returning those pills to Sherry Rose?
“A. Yes, I was.”

Thus appellant made no offer to rebut or refute the facts and evidence shown by the State. He merely confirmed that the pills were in fact in his car as found by the police, but he attempted to set up a defense based on the fact that he innocently acquired possession of the pills from his girlfriend. Under our prior view, this situation would most likely fall under the doctrine of curative admissibility and appellant’s objection to the illegal search and seizure would have been deemed waived. McLaughlin v. State, supra; Creel v. State, supra; Warren v. State, supra.

However, it has been suggested by Judge Morrison in his concurring opinion in Alvarez v. State, supra, that the case of Harrison v. United States, supra, alters the doctrine of curative admissibility. In that case, the prosecutor had introduced three illegal confessions at a previous trial, the substance of which showed that the defendant had gone to the victim’s house intending to rob him and that the victim had been killed while resisting entry into his home. The defendant took the stand and testified that he had gone to the victim’s home hoping to pawn a shotgun and that the victim was accidentally killed while the petitioner was presenting the gun to him for inspection, rebutting the State’s evidence. Upon reversal and retrial, the prosecutor introduced into evidence the testimony of the defendant from the first trial. The Supreme Court, speaking through Mr. Justice Stewart, reversed, based on the reasoning that petitioner might have given the testimony placing him at the scene of the killing “in order to overcome the impact of confessions illegally obtained” so that “his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible.” The Court found that the burden was on the Government to show that its illegal action in obtaining and introducing the confessions had not impelled the petitioner’s testimony and that the Government had failed to do so. The Court’s ruling is thus an extension of the exclusionary rule and attenuation concept, which excludes the fruits of illegal evidence unless the prosecutor is able to demonstrate that the knowledge is gained from an independent source or the evidence has been obtained by means sufficiently distinguishable from the underlying illegality to be purged of the primary taint. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Under Harrison, the “question is not whether the petitioner made a knowing decision to testify, but why. If he did so in order to overcome the impact of the confessions illegally obtained and hence improperly introduced,” the testimony is tainted by the same illegality that rendered the confessions themselves inadmissible.

We find that Harrison does in fact add a corollary to the doctrine of curative admissibility, i. e., the harmful effect of improperly admitted evidence which is obtained by illegal police practices is not cured when a defendant gives testimony on direct examination which establishes the same or similar facts unless the State can show that its illegal action in obtaining and introducing the evidence did not impel the defendant’s testimony. We did not here consider the issue whether this corollary should be extended to apply to testimony impelled by mere evidentiary hearsay evidence. See United States v. Bohle, 475 F.2d 872 (2nd Cir. 1973).

In applying this rule, or corollary, to the present facts, we find that appellant properly objected to the improperly admitted evidence which was obtained by an illegal search and seizure by the police and there is no showing by the State that its illegal action did not impel appellant’s testimony. In fact, it is apparent that appellant would not have taken the stand if the illegally obtained evidence had not been admitted because that was the only evidence the State introduced. Appellant did not, therefore, waive his objection.

The State’s motion for rehearing is overruled.

VOLLERS, J., not participating.

DALLY, Judge,

dissenting.

Appellant’s direct testimony confirming his possession of the biphetamine constitutes a waiver of his objection to its introduction by the State, under the well-established doctrine of curative admissibility. E. g. Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974); Lester v. State, 498 S.W.2d 927 (Tex.Cr.App.1973); Creel v. State, 493 S.W.2d 814 (Tex.Cr.App.1973); Moulton v. State, 486 S.W.2d 334 (Tex.Cr.App.1972); Palmer v. State, 475 S.W.2d 797 (Tex.Cr.App.1972); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970); Parker v. State, 384 S.W.2d 712 (Tex.Cr.App.1964); McLaughlin v. State, 109 Tex.Cr.R. 307, 4 S.W.2d 54 (1928). I vigorously dissent to the majority opinion limiting the application of this doctrine, which results from the failure of the majority to recognize the fundamental factual and legal distinctions between the issue presented in Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968) and the issue presented by the case before us.

In Harrison, the facts of which are adequately set out in the majority opinion, the Supreme Court held that where a defendant is “impelled” to testify because of the introduction by the prosecution of an unlawfully obtained confession, his testimony is the inadmissible fruit of the unlawful confession and may not be used against him in a subsequent retrial. In the instant case, we are not asked to decide whether appellant’s trial testimony may be used by the State as evidence against him in a retrial, or for any other purpose. Rather, we are asked to decide whether appellant, by having admitted in direct testimony that he was in possession of the biphetamine at the time of his arrest, waived his objection to the admission of the biphetamine by the State. Harrison simply does not speak to this question of waiver.

It is as if you were comparing apples and oranges to compare Harrison, a Fifth Amendment case, with the Fourth Amendment cases from which the doctrine of curative admissibility has evolved. The dissimilarity of Harrison and the instant case is demonstrated by the fact that Harrison’s trial testimony more nearly fits the corollary to the curative admissibility doctrine announced in cases such as Alvarez v. State, 511 S.W.2d 493 (Tex.Cr.App.1973) than it does the doctrine itself. That is, Harrison did not testify to substantially the same facts as set out in his confessions, nor did he otherwise admit the truth of the confessions. Rather, he sought to meet or rebut the confessions by testifying to a different version of events. This is, of course, in contrast to the instant case. Appellant, in his testimony, admitted possessing the biphetamine.

The majority contends that appellant was “impelled” to testify. I cannot agree. There is absolutely no evidence in the record that appellant’s decision to take the stand was anything but completely voluntary. Granted, appellant was faced with a difficult problem of trial strategy. Believing that the biphetamine had been unlawfully seized, should he remain silent, accept the almost certain revocation of his probation, and rely on a reversal from this Court? Or, recognizing that the validity of the search was a close question and there was a chance this Court would affirm, should he take the stand to admit his possession of the drugs and tell an exculpatory version of events in hope that the probation would not be revoked? Such difficult decisions must be made in virtually every trial. It is a price that is paid for having a system of justice that generally insists upon full trials before appellate review of points of law. It is a problem that can be avoided, within our system, only by doing what is done here, namely, reaching the wrong result as between the litigants. Harrison v. United States, 392 U.S. at 228, 88 S.Ct. 2008 (Mr. Justice Harlan’s dissenting opinion).

The State’s Motion for Rehearing should be granted and the judgment affirmed.

DOUGLAS and TOM G. DAVIS, JJ., joined.

      . The evidence showed that biphetamine was a pharmaceutical trade name for amphetamine, a controlled substance.

      . Appellant’s testimony did not waive any objections to the legality of the search. Appellant testified that the coat containing the pills was not his, that it belonged to Sherry Rose, and that he was returning it to her. Sherry Rose testified the pills were hers and had been prescribed for her the day before the alleged offense and she had left them in appellant’s car. It is clear this testimony was offered to meet, destroy, and explain after the fruits of the claimed illegal search were admitted. See Nicholas v. State, Tex.Cr.App., 502 S.W.2d 169 (Opinion on State’s Motion for Rehearing); Alvarez v. State, Tex.Cr.App., 511 S.W.2d 493 (Opinion on State’s Second Motion for Rehearing).

      . Harrison’s initial confession was found to be not admissible against him because of statutory, not constitutional, grounds. Contrary to the District of Columbia Code and Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161 (1961), the first Harrison confession was elicited from him before the juvenile court waived jurisdiction over the offense which was committed just prior to Harrison’s 18th birthday. The two subsequent confessions were inadmissible because of constitutional grounds. Harrison v. United States, 123 U.S.App.D.C. 230, 359 F.2d 214 (1965).


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

text:
    Joanne Frances PFLEGING, Appellant, v. The STATE of Texas, Appellee.
    No. 53186.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 10, 1978.
    State’s Motion for Rehearing Denied Oct. 18, 1978.

      Michael Greenberg, Irving, for appellant.
    Henry Wade, Dist. Atty., and Ronald D. Hinds, Asst. Dist. Atty., Dallas, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for forgery. V.T.C.A. Penal Code, Sec. 32.-21(d). Appellant was tried before the court upon a plea of not guilty and punishment was assessed at five years, probated.

Appellant challenges the sufficiency of the evidence to support the conviction.

Carl Potts, a resident of Bastrop, testified that he was the owner of a refrigeration and air conditioning business for the past 20 years. He had a business checking account at the First National Bank of Bastrop. He testified that early in 1975 he discovered that a page of checks was missing from his business checking account. He did not make this discovery until he was notified that someone was trying to cash one of his checks in Dallas. He had no knowledge of when or how the checks were taken. He identified the check that was the subject of the instant prosecution as appearing to be one of those that had been taken from his business. He had never given the appellant permission to sign his name and stated that the signature on the check was definitely not his own.

Tim Weston, vice president of the Texas Bank and Trust Company in Dallas, testified that on February 28, 1975, the appellant entered the Texas Bank and Trust Company and presented a check in the amount of $3,500.00 to a teller. She stated a desire to make a payment on an out-of-state issued Bank Americard and receive the remainder of $2,000.00 in cash. Since this was over the teller’s range of authority, the appellant was referred to Weston. He identified the check which is the basis of the instant prosecution as the same check the appellant presented to him. The check had already been endorsed in the name of Joanne F. Pfleging. Because of the size of the transaction, the witness called the bank in Indiana which had issued the Bank Am-ericard. He was advised by the Indiana bank that “they had a pick up on the card and requested that we pick up the card and return it to them.” He also contacted the First National Bank of Bastrop to determine if the check were valid. He was advised by the bank in Bastrop that the check was one of a series of checks that had been reported stolen. According to the witness, the banker in Bastrop was sure that the signature of Carl Potts was a forgery. Weston related that during this series of transactions the appellant was at his desk. Weston stated that after he spoke with the bank in Bastrop he called the Dallas police and they immediately arrested the appellant. On cross-examination, Weston stated that no money changed hands and he never saw the appellant make any writing, either on the face or the back of the check.

The State rested at the conclusion of Weston’s testimony and the appellant rested without presenting any evidence.

V.T.C.A. Penal Code, See. 32.21, provides in pertinent part as follows:

“(a) For purposes of this section:
“(1) ‘Forge’ means:
“(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
“(i) to be the act of another who did not authorize that act;
“(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A) of this subdivision; or
“(C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B) of this subdivision.
“(2) ‘Writing includes:
“(A) printing or any other method of recording information;
* * * * * *
“(b) A person commits an offense if he forges a writing with intent to defraud or harm another.
* * * * * *
“(d) An offense under this section is a felony of the third degree if the writing is or purports to be a will, codicil, deed, deed of trust, mortgage, security instrument, security agreement, credit card, check or similar sight order for payment of money, contract, release, or other commercial instrument.”

Under this statute, the definition of forgery requires as an element of the offense an intent to defraud or harm. Jones v. State, Tex.Cr.App., 545 S.W.2d 771; Stuebgen v. State, Tex.Cr.App., 547 S.W.2d 29; Baker v. State, Tex.Cr.App., 552 S.W.2d 818.

Thus, it is clear that intent to defraud or harm is a necessary element of the offense of forgery and the burden is upon the State to prove every element of the offense charged. Reed v. State, Tex.Cr.App., 533 S.W.2d 35; Young v. State, Tex.Cr.App., 529 S.W.2d 542. In Stuebgen v. State, supra, and Baker v. State, supra, we said:

“While the requisite culpable mental state under Section 32.21(b) is ‘intent to defraud or harm,’ we fail to perceive how such culpable mental state can be shown absent proof of knowledge that the instrument is forged.”

The State may, of course, establish intent to defraud or harm by circumstantial evidence. Baker v. State, supra; Stuebgen v. State, supra; Watson v. State, Tex.Cr.App., 418 S.W.2d 822. In Castaneula v. State, Tex.Cr.App., 435 S.W.2d 146, this Court held that where the defendant “cashed the forged check in question and endorsed his name thereon, with an incorrect address, is sufficient to warrant the jury’s conclusion that he knew the check was a forgery when he passed it.” See also O’Bryan v. State, Tex.Cr.App., 397 S.W.2d 860.

The defendant in Phillips v. State, Tex.Cr.App., 488 S.W.2d 97, represented himself as the payee of a check, endorsed it in the presence of the supermarket cashier, and gave false information about the maker of the check to show knowledge that the instrument was forged. See also Hilton v. State, Tex.Cr.App., 443 S.W.2d 843.

In Golden v. State, Tex.Cr.App., 475 S.W.2d 273, the defendant stated when passing a check that the maker thereof was an insurance man. The evidence reflected that the man listed as the maker was fictitious. This was held sufficient to show knowledge that the instrument was forged. See also Colburn v. State, Tex.Cr.App., 501 S.W.2d 680.

In Cauble v. State, Tex.Cr.App., 386 S.W.2d 804, a handwriting comparison between the signature forged on the check and the defendant’s signature was held sufficient to prove intent. See also Newby v. State, Tex.Cr.App., 384 S.W.2d 133. In Baker v. State, supra, the defendant tried to retrieve the paper on which the license number of his automobile had been written. This, when taken with the other facts, was held sufficient to show knowledge.

In the instant case, the State proved that the instrument was in fact forged, but there is no evidence, circumstantial or otherwise, to show the appellant’s knowledge that the instrument was forged or that the instrument was passed with intent to defraud or harm. If there be other means of showing intent “to defraud or harm another” in cases such as this, which we are presently unable to envision, the record in the instant case is devoid of same. Stuebgen v. State, supra.

The inclusion in Sec. 32.21, supra, of the requirement, “with intent to defraud or harm,” precludes an interpretation that the presentation or passing of a forged instrument is a per se violation. Since the evidence is insufficient to show intent to defraud or harm, the conviction must be reversed.

The judgment is reversed and the cause remanded.

OPINION ON STATE’S MOTION FOR REHEARING

PHILLIPS, Judge.

On original submission, appellant’s conviction for forgery was reversed by Panel No. 3 for the second quarter of 1978, per opinion of Judge Tom Davis. The State’s motion for rehearing alleges that the facts adduced at the trial of appellant circumstantially establish that appellant attempted to cash the forged check with the requisite intent to defraud another. We remain convinced that the opinion on original submission was correct in its conclusion, especially in light of its reliance on Stuebgen v. State, Tex.Cr.App., 547 S.W.2d 29. The only facts among those cataloged by the State in its motion for rehearing that are probative are that the check was made out to the appellant, the appellant’s name appears on the back of the check, and the appellant had no prior dealings with Carl Potts, the purported maker of the check. The only fact which would distinguish this case from that of Stuebgen, supra, is the fact that appellant had no preexisting relationship with the purported maker of the check. In Stuebgen the appellant had a preexisting employer-employee relationship with the maker of the check. This Court wrote in Stuebgen :

“ . . . Although appellant had access to Chitwood’s [the employer] checkbook, and Chitwood normally paid his employees personally, we do not find that this evidence is sufficient to discharge the State’s burden of showing that appellant acted with intent ‘to defraud or harm another.’ ” Id. at 32.

The facts of this case are even stronger in light of the fact that there was no preexisting relationship of any degree between the appellant and Potts which would create a basis for the payee [appellant] to know that she was passing an instrument that was forged. In this case, as in Stuebgen :

“ . . . Appellant was listed as the payee, and appellant did not falsely represent himself [herself]. No evidence was introduced to show that anything appearing on the check was in appellant’s handwriting.” Id. at 32.

It is noted that the forged check in the instant case had the appellant’s name hand-printed as the payee. Testimony at appellant’s trial established that the check was endorsed, although none of the witnesses actually observed her endorsing the check. If Stuebgen’s conviction could not stand in light of his preexisting relationship with the purported maker of the check, appellant’s conviction must, a fortiori, fall as well. As in Stuebgen, supra, the State has failed to discharge its burden of proof in the instant case.

The State’s motion for rehearing is hereby overruled. The judgment of conviction remains reversed. However, in light of Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), and Burks v. U. S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the judgment is hereby reformed to reflect an acquittal and the cause is remanded for proceedings under Article 37.-12, V.A.C.C.P.


author: PHILLIPS, Judge. ROBERTS, Judge,

text:
    Oliver Wendell FERGUSON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 54001, 54002.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 20, 1978.
    Appellants’ Motion for Rehearing En Banc Denied Nov. 8, 1978.
    Paul J. Chitwood and Paul P. Riley, Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Hagler and Robert E. Whaley, Asst. Dist. Attys., Dallas, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

PHILLIPS, Judge.

These are appeals from two convictions for violations of the Texas Securities Act. Art. 581 — 29 et seq., V.A.C.S. In Cause No. C72-6655-MI, the appellant was convicted of the sale of an unregistered security. Art. 581 — 29(B), V.A.C.S. In Cause No. C72-6656-MI, the appellant was convicted of selling a security without being a duly registered dealer in securities. Art. 581— 29(A), V.A.C.S. Punishment was assessed by the court in each case at four years’ imprisonment.

The sufficiency of the evidence is not challenged. The securities in this case were issued by Empresa Azufrera Del Peru S.A., a Peru sulphur mining company. The securities were written wholly in Spanish. A copy of the securities was set out in the indictments and in the court’s charge. During the trial the appellant testified in his own behalf. On cross examination he admitted that the securities were not registered with the Texas Securities Commission and that he was not a registered securities dealer. The appellant testified as follows:

“Q And at the time you made these sales, was this Empresa Azu Frera [sic] Del Peru certificate of stock registered with the Securities Commission of Texas? A No, sir.
⅝ * ¡fc ⅝: % ⅜
Q And when you did, either invite officers or — or sell this investment, you said you were not registered with the Securities Commission or the State of Texas as a stock dealer, or a salesman, or an agent?
A Yes, sir.
Q You were not registered?
A I was not registered.
Q And you have read the first two counts, which says that you were not registered when the security was sold, as a dealer and the second which says that the security was not registered when it was sold, have you looked those over? A Yes, sir.
Q Are those two statements true?
A I was not a dealer, and I was not registered.
* ⅜ ⅜ ⅜ * *
Q And you definitely know that when the note is backed by a bonus, like a stock, that it is a security, don’t you?
A Yes, sir.”

William Davis, an employee of the Texas State Securities Board, corroborated appellant’s statement regarding the Empresa certificates, and testified that the certificates were securities within the meaning of the Texas Securities Act and were required to be registered.

In his first ground of error appellant contends that the trial court failed to conduct the trial wholly in the English language. Appellant argues that in failing to include an English interpretation of the security in the charge, the trial court did not conduct the trial wholly in English. The appellant offered no objection at trial to the court’s charge on this basis. The appellant cites and relies upon Garcia v. State, 151 Tex.Cr.R. 593, 210 S.W.2d 574; however, an examination of that case reveals that it is not decisive of this issue. In Garcia, this Court held that a Spanish speaking defendant was entitled to an interpreter in order to afford him his constitutional right to confrontation of witnesses.

The testimony at trial established that the stock certificates set out in the charge were securities. Further, the definition of a “security” given in the court’s charge appears to comply with Art. 581-4(A), V.A.C.S. In any event, the appellant failed to object to the form of the charge at trial and the error, if any, is waived. Nothing is presented for review. Patterson v. State, Tex.Cr.App., 509 S.W.2d 857; Rummel v. State, Tex.Cr.App., 509 S.W.2d 630; Cassell v. State, Tex.Cr.App., 507 S.W.2d 228. Appellant’s first ground of error is overruled.

In his next ground of error appellant argues that the indictments are fatally defective for failing to state an offense. Appellant contends that since the securities were wholly in Spanish and not translated into English, the indictments fail to allege an offense.

Appellant filed no motion in the trial court to quash the indictments, and this complaint is raised for the first time on appeal. Consequently, only such contentions cognizable under Art. 27.08, V.A.C. C.P., to-wit, that the indictment fails to allege the constituent elements of the offense, are before this Court. American Plant Food Corporation v. State. Tex.Cr.App., 508 S.W.2d 598; Terry v. State, Tex.Cr.App., 517 S.W.2d 554; Peterson v. State, Tex.Cr.App., 508 S.W.2d 844.

Appellant relies upon Drozda v. State, 86 Tex.Cr.R. 614, 218 S.W.2d 765. In Drozda, a case involving an indictment for libel, this Court held that a defamatory article published in the Bohemian language must be accompanied by an English translation in order to determine whether the published matter was libelous. We do not consider our holding in Drozda persuasive with regard to an indictment alleging securities violations. In a libel indictment, the contents of the published writings necessarily constitute an element of the offense. Without knowing the contents of the writing, one cannot know if the publication is libelous. The same argument does not hold true with regard to a securities violation. It is not the language of the instrument which is important, but whether the instrument itself constitutes a security. In the instant case, the instrument clearly falls within the statutory definition of a security. Art. 581-4(A), supra.

In Sharp v. State, Tex.Cr.App., 392 S.W.2d 127, an appeal from a conviction for unlawful offer to sell an unregistered security, we held:

“It is conceded that where a sale is actually consummated it is better pleading to incorporate in the indictment the stock certificate itself.”

While recognizing that it is better pleading to set out the security in haec verba in the indictment, it is not essential in order to charge a violation of the securities law. Sharp v. State, supra; Shappley v. State, Tex.Cr.App., 520 S.W.2d 766; Cox v. State, Tex.Cr.App., 523 S.W.2d 695. In the instant case, the State followed the better practice and included a copy of the security in the indictments in haec verba. We hold that the indictments were sufficient to allege the constituent elements of the offenses of unlawful sale of an unregistered security and unlawful sale of a security without being a duly registered securities dealer. Arts. 21.02, 21.04 and 21.11, V.A.C. C.P. Appellant’s second ground of error is overruled.

In his grounds of error three and four appellant contends in Cause No. C72-6656— MI that the indictment is fatally defective and, further, that there is a fatal variance between the allegations of the indictment and the evidence submitted. The indictment sets out a copy of the security. The security has the handwritten word “Copy” on its face. The security introduced into evidence does not have this handwritten word “Copy” appearing on its face. Appellant contends that this variance is fatal. Appellant offered no objection to the introduction of the security into evidence at trial. He further contends that it is not illegal to sell a copy of a security and consequently the indictment fails to state an offense. He filed no motion to quash the indictment and raises this contention for the first time on appeal. We find appellant’s contentions to be without merit.

Unnecessary words, in an indictment, when not descriptive of that which is legally essential to the validity of an indictment or information, may be rejected as surplusage. Collins v. State, Tex.Cr.App., 500 S.W.2d 168; Cohen v. State, Tex.Cr.App., 479 S.W.2d 950; Malazzo v. State, 165 Tex.Cr.R. 441, 308 S.W.2d 29.

In Burrell v. State, Tex.Cr.App., 526 S.W.2d 799, this Court noted:

“There is, however a well recognized exception to the general rule discussed above, and that is where the unnecessary matter is descriptive of that which is legally essential to charge a crime it must be proven as alleged, even though needlessly stated. See 13 Texas Law Review 489 (note); 1 Branch’s Ann.P.C., 2d ed., Sec. 518, pp. 491 — 498, and cases there cited.
It is well established that where a person, place or thing necessary to be mentioned in the indictment is described with unnecessary particularity, all circumstances of description must be proven, Smith v. State, 107 Tex.Cr.R. 511, 298 S.W. 286 (1927), and cannot be rejected as surplus-age, for they are thus made essential to the identity. Maples v. State, 124 Tex. Cr.R. 478, 63 S.W.2d 855 (1933). Thus, if the pleader makes unnecessary allegations descriptive of the identity of the offense charged, it is incumbent upon the State to establish such allegations by evidence. McClure v. State, 163 Tex.Cr.R. 650, 296 S.W.2d 263 (1956).”

Consequently, the deciding factor in the instant case is whether the word “Copy” appearing in the body of the indictment is descriptive of that which is legally essential to charge the offense. As discussed previously, it is not the language or wording of a security which defines the nature of a securities violation; rather, it is whether the instrument falls within the definition of a security. The word “Copy” appearing in the body of a security placed in the indictment does not determine its tenor as a security within the meaning of Art. 581 — 4(A). We hold, therefore, that the handwritten word “Copy” appearing in the indictment was not descriptive of the offense charged and may be disregarded as surplusage. Finding no fatal defect in the indictment nor fatal variance in the proof offered at trial, appellant’s final contentions are overruled.

The judgments are affirmed.

ROBERTS, Judge,

concurring.

Although I agree that the judgment should be affirmed, I cannot agree with all of the reasoning of the majority opinion.

In his fourth ground of error appellant contends that the indictment is fatally defective because the security set out in the indictment has the word “Copy” written across the face of the security. And, be-, cause the security introduced in evidence did not have this word appearing on it, appellant contends in his third ground of error that there was a fatal variance between the pleading and the proof.

In his argument supporting his fourth ground of error appellant relies upon Acuff v. State, 429 S.W.2d 888 (Tex.Cr.App.1968), which in its turn relied principally upon the holding in Payne v. State, 391 S.W.2d 53 (Tex.Cr.App.1965). Both of those cases were forgery cases. In Payne, the check set out in the indictment had upon its face the word “FORGERY.” In Acuff, the word “forged” appeared on the face of the check set out in the indictment. In both of those cases we held that such a check could not be the subject of a forgery because it showed on its face that it was a forged instrument.

Both Acuff and Payne were cases arising under our 1925 Penal Code. In Martinez v. State, 551 S.W.2d 735 (Tex.Cr.App.1977), the prosecutions were for forgery under the 1974 Penal Code. In those cases the words “Paid Bexar County National Bank, San Antonio, Texas” appeared on the checks set out in the indictments. That defendant contended in each of his cases that “ ‘the check set out in the indictment could not be the subject of forgery because it shows on its face to have already been honored by the bank upon which it was drawn’ and ‘the check set out by its tenor in the indictment contains notations which the evidence shows were made after the check was passed.’ ” 551 S.W.2d at 735.

The defendant in Martinez relied upon Payne and Acuff. We held that those two cases were not in point, for the following reasons:

“Under former Penal Code Art. 979, V.A.P.C., the instrument which was the subject of the forgery must have been made ‘ . . .in such manner that the false instrument so made (if the same were true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever.’ Under the former Code, Art. 989, V.A.P.C. defined ‘pecuniary obligation’ as ‘every instrument having money for its object, and every obligation for the breach of which a civil action for damages may be lawfully brought.’
“It follows that the offense of forgery as same is defined under Sec. 32.21, supra, does not require that the instrument in writing be such as to create, increase, diminish, discharge or defeat any pecuniary obligation. See Practice Commentary to Sec. 32.21, supra.
“While an instrument with ‘Forgery’ stamped on it could not have been the subject of forgery under the former Penal Code in that it could not create or defeat a pecuniary obligation, no such requirement is made by Sec. 32.21, supra, under which prosecution was brought in the instant cases. We reject appellant’s contention that instruments with ‘Paid’ on the face of them cannot be the subject of forgery.” 551 S.W.2d at 736-737.

As has been noted, Payne and Acuff dealt with allegedly forged instruments which were set out in haec verba in the indictment. It appears to be appellant’s contention that these forgery cases are analogous to his case (where the indictment charges him with selling a security without being a registered dealer in securities) because the indictment here, like those in Payne and Acuff, sets out a disputed written instrument (in this case the alleged security) in haec verba.

I believe that Acuff and Payne were correctly analyzed and explained in Martinez, and that Martinez also provides the underlying rule which helps decide the issues before us here. The essence of the Martinez holding is that any mistake in setting forth an instrument in haec verba will not vitiate the indictment where the mistake is not material to the offense charged.

As already noted, the indictment in this case charges appellant with selling a security without being a registered securities dealer. I would hold that the gravamen of this offense is the act of selling without being a registered dealer and that therefore the word “Copy” written across the face of the alleged security was not material to the offense charged. See Shappley v. State, 520 S.W.2d 766 (Tex.Cr.App.1974); and compare King v. State, 519 S.W.2d 651, 652 (Tex.Cr.App.1975) (gravamen of forgery offenses is the intent to injure or defraud). I would not reach the issue which the majority reaches when it concludes that the word “Copy” in the body of an alleged security does not ever have anything to do with the determination of whether the document is a security. . There are other securities law violations, in some of which we might be compelled to reach a different conclusion because the instrument alleged to be a security was itself of significant materiality to the offense charged.

For the reasons stated, I would hold that the indictment was not fundamentally defective and that any variance between the indictment and the proof was not material. I concur in the overruling of appellant’s third and fourth grounds of error in Cause No. 54,002.

      . It is noted that appellant testified he had training in and could read the Spanish language.

      . In Wilkes v. U. S., 80 F.2d 285 (9th Cir. 1935), the defendants were indicted for using the mails in execution of a scheme to defraud. The scheme charged in the indictment was that the defendants would organize and control a corporation which would issue and sell capital stock and would defraud the stockholders by receiving certain shares of the corporation as a bonus. The indictment copied portions of a pamphlet the defendants used in order to sell the stock. This pamphlet began with “Report of the Directors of Italo Petroleum Corporation of America and Subsidiary Companies for the Period October 31, 1928, to July 31, 1929,” and ended with certain Italian words quoted in the indictment but not translated into English. That Court held:
      “The sole objection to Count 8 is that it contains no translation of the Italian words quoted therein. Such a translation was unnecessary. The words are used merely to identify the pamphlet alleged to have been mailed. They do not constitute the gist of the offense.”
      See also People v. Martinez, 117 Cal.App.2d 701, 256 P.2d 1028 (1953).

      . The appellant refers in his brief to State’s Exhibit No. 12. The stock certificate appears to have been introduced in the record as State’s Exhibit No. 10, but was mislabeled as State’s Exhibit No. 12.

      . We thus indulged the necessary presumption that these checks were reproduced in the indictment in precisely the same form and language as they appeared when they were passed.

      . Thus, it follows that where a fatal variance is alleged — as it has been in the present case— such a mistake will not lead to reversal where the variance between the indictment and the proof is not material. See Webster v. People, 92 N.Y. 422, 425-426 (1883).


author: PHILLIPS, Judge.

text:
    Wesley HOGAN, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 57547.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 20, 1978.

      No appearance for appellant.
    No appearance for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

PHILLIPS, Judge.

Appellant waived trial by jury and entered a plea of guilty before the court to the offense of theft over $200.00. Punishment was assessed at six (6) years’ confinement in the Department of Corrections.

The record is before us without a transcription of the court reporter’s notes. No brief has been filed in appellant’s behalf pursuant to Art. 40.09, Sec. 9, Vernon’s Ann. C.C.P. The record does contain, however, some indication of indigency.

The indictment in this cause was returned on October 17, 1975, and the capias pursuant to the indictment was returned as executed on October 18, 1975. Also, on October 18, 1975, appellant was released pursuant to a surety bond in the amount of $5,000.00. The record contains a judgment nisi and the final judgment declaring a forfeiture on the above-mentioned bond in addition to a capias which was returned as executed on November 19, 1976, by arresting appellant and placing him in the county jail of Guadalupe County. On November 30, 1976, appellant executed a surety bond in the amount of $15,000.00 in order to secure his release from jail.

On January 12, 1977, appellant’s attorney filed a motion to withdraw as attorney of record alleging that defendant had wholly failed to make any contractual commitments with his attorney, and that since the attorney had not been paid any sums of money, he should be allowed to withdraw. The motion to withdraw was granted by the trial court on January 14, 1977. Likewise, on January 14,1977, appellant filed an affidavit of indigency alleging that he was wholly destitute of means to hire counsel for representation in this cause. The record reflects that on the same form containing the affidavit of indigency executed by appellant an order appointing attorney was filled in but unsigned by the judge of the 25th Judicial District.

The record contains a document which incorporates appellant’s stipulation of testimony wherein appellant agrees that evidence in the case may be stipulated and waives appellant’s confrontation and cross-examination of witnesses and consents to the introduction of testimony by affidavits, written statements or other documentary evidence. The document also contains a waiver of a jury trial and a waiver of ten days to prepare for trial by court-appointed counsel and a waiver of ten days to file a motion for new trial and application for probation. Appellant personally signed the stipulation of testimony, waiver of jury and waiver of ten days to prepare for trial by court-appointed counsel. In addition, appellant’s attorney, R. T. Monsalvo, executed the documents. The waiver of trial by jury is also executed by Houston Munson, attorney for State. The document above described contains the notation that it was subscribed and sworn to on the 12th day of October, 1975. Thereafter, a stipulation and judicial confession in which appellant confesses to the offense of theft over $200.00 was executed by appellant. The oath contained on the stipulation and judicial confession reflects that it was executed on the 12th day of May, 1975. The judgment contained in the record reflects that appellant and his counsel, R. T. Monsalvo, appeared on May 12, 1977, at which time a plea of guilty was entered, and appellant was found guilty of the offense of theft committed on March 14, 1975. The judgment reflects that the punishment was assessed at a term of six years of confinement in the Department of Corrections at that time. Appellant was sentenced on July 11, 1977. There is no written notice of appeal contained in the record, and nothing on the sentence or the docket sheet reflects that oral notice of appeal was given in this cause. The record does contain, however, an order of the court entered on October 20, 1977, which states the following:

“On this 20 day of October, 1977, it was presented to me that WESLEY HOGAN, JR., defendant in cause number 75^469, and styled The State of Texas vs. WESLEY HOGAN, JR., had given timely notice of his desire to appeal a conviction in court on in said cause (sic). Further, however, it was presented that the said WESLEY HOGAN, JR. had not properly designated any materials in this cause number for record in this appeal. Additionally, it was found that no appellant brief (sic) nor transcript have been filed in this cause for purposes of appeal. These findings are made after ninety (90) days have elapsed since the formal sentencing of WESLEY HOGAN, JR. in this cause in this court.
“WHEREFORE, all premises considered, it is found and ordered that the proposed appeal of the said WESLEY HOGAN, JR. in this cause be considered abandoned and that whatever intent the said WESLEY HOGAN, JR. may have had to properly appeal this cause has been waived and not made manifest by the proper preparation of the record for appeal.”

The above-quoted order was signed on October 20, 1977, by E. W. Patteson, Judge Presiding.

It is settled that the Texas and United States Constitutions require that an indigent defendant is entitled to the effective assistance of counsel on appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); Hawkins v. State, 515 S.W.2d 275 (Tex.Cr.App.1974); McMahon v. State, 529 S.W.2d 771 (Tex.Cr.App.1975). And, the decision of the Supreme Court of the United States in Anders v. California, supra, requires that court-appointed counsel file a brief in appellant’s behalf.

Due to the incomplete and confusing state of the record in this cause, we feel that the proper remedy is to abate this appeal due to the fact that there is some indication that appellant was indigent. The indication of indigency that we perceive stems from the fact that appellant and his attorney executed a waiver of the ten days’ preparation for trial by court-appointed counsel. While there is no formal order appointing counsel in this cause, the execution of the ten-day waiver does create some doubt as to appellant’s financial status. Consequently, the appeal will be abated so the trial court may determine whether appellant is, in fact, indigent. If the trial court so determines, it should take steps to provide appellant with effective assistance of counsel on appeal. Douglas v. California, supra; Anders v. California, supra; Lopez v. State, 486 S.W.2d 559 (Tex.Cr.App.1972); Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969); Hawkins v. State, supra. The trial court has authority to require such attorney to file a brief in accordance with the above-cited authorities. Luna v. State, 527 S.W.2d 548 (Tex.Cr.App.1975).

If the trial court finds that appellant is represented by retained counsel, it should then determine whether the failure of such counsel to file a brief was taken with appellant’s knowledge and consent under the instructions in Steel v. State, 453 S.W.2d 486 (Tex.Cr.App.1970).

It should be further noted that while we have held that it is incumbent upon the appellant, whether indigent or not, to exercise diligence in securing a copy of the court reporter’s notes and that an indigent is also required to adhere to the time requirements imposed by Art. 40.09, Vernon’s Ann. C.C.P., the trial court has no authority to unilaterally abandon appellant’s appeal and waive appellant’s appeal even though the statutory provisions for the preparation of the record and filing of appellant’s brief had not been properly pursued.

The trial court, during the hearing in order to determine the question of indi-gency hereinbefore discussed, can determine whether appellant still desires to appeal. See Lessing v. State, 509 S.W.2d 356 (Tex.Cr.App.1974). If, however, appellant is found to be indigent, and still desires to appeal, the appeal should be returned to this Court together with the trial court’s findings and a transcription of the court reporter’s notes at said hearing in order that this Court might properly review the same. See Stephens v. State, 509 S.W.2d 363 (Tex.Cr.App.1974); Hicks v. State, 544 S.W.2d 424 (Tex.Cr.App.1977).

For the reasons stated, the appeal is abated.

      . As previously stated, the record indicates that appellant’s waiver of trial by jury and stipulation of testimony and waiver of ten days for trial by court-appointed counsel was ostensibly executed on October 12, 1975. The stipulation and judicial confession, however, were sworn to on May 12, 1975. The judgment entered of record, however, indicates that the plea was taken on May 12, 1977. While it is very likely that the dates on the executions of the waiver of trial by jury and the stipulation and judicial confession were incorrectly entered, it is very difficult to determine when, in fact, appellant’s plea of guilty was entered.


text:
    Elmer Jack BONEY, Appellant, v. The STATE of Texas, Appellee.
    No. 54891.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 27, 1978.
    Appellant’s Motion for Rehearing En Banc Denied Nov. 8, 1978.
    Marvin 0. Teague, Houston, for appellant.
    Carol S. Yance, Dist. Atty., Alvin M. Titus and Ned B. Morris, Asst. Dist. Attys., Houston, for the State.

      Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of aggravated assault. V.T. C.A., Penal Code, Sec. 22.02. Punishment was enhanced pursuant to V.T.C.A., Penal Code, Sec. 12.42(d) and assessed at life imprisonment.

The evidence adduced at trial revealed that on April 4, 1975, Betty Jane Outlaw owned and operated an antique shop. At approximately 4:40 p. m. on April 4, the appellant entered this shop while witness Outlaw was alone. The appellant asked if she had “any green cabbage rose,” an antique glass. After checking, she told the appellant she did not have any such glass. The appellant then inquired about a certain plate and she testified concerning the subsequent events as follows:

“Well, as he had asked me about this green plate laying in the back and he asked what pattern it was. I said that I didn’t know and that I would have to go and look. So I went back to pick up the plate to see what pattern it was and as I picked it up, well, he put his arm around my shoulder and grabbed this arm and said, T want you to go — come in here with me.’ And I said, ‘What do you mean?’ And he said, T want you to come in here with me.’ Which indicated a little office, a little seperate (sic) room and I said, ‘No.’ And I started to hollering and trying to get away and we was standing right by the back door and I grabbed the door knob to try to pull myself away from him. I just opened the door and started to go out the back door and as I ran out the back door, well, I just felt like maybe he was trying to pull me back and I was running out the back door. As I got away from him and ran out into this little back yard, I felt this wetness and I looked down and I had blood all down on my clothes.”

After witness Outlaw ran outside, the appellant did not follow. She saw the appellant get into his car and she noted the license plate number as he left. Outlaw stated that she did not observe a knife, razor or anything in appellant’s hand but had a cut from the front of her neck around to the back of her head. She stated that the blood “gushed” rapidly from that wound. Due to her injury, she stayed overnight in the hospital and received several stitches. On cross-examination, it was established that the appellant did not threaten her with harm nor did she see a weapon of any kind.

W. T. Smith testified that he owned a business located less than half a block from Outlaw’s antique store. Smith went to her store in the late afternoon of April 4, 1975, and when she opened the door Smith saw her holding her neck and noticed she was bleeding. Smith stated that there was blood “all over on her neck and her blouse was bloody and looked like it was bleeding kind of bad.” Smith procured a towel and stayed with witness Outlaw until the police arrived.

Steven Whitney testified that on April 4 he was across the street from Outlaw’s antique shop. From Whitney’s vantage point, he could see the backyard of the antique shop. On that afternoon, he observed Betty Outlaw run out of the back door to the antique shop, screaming. Whitney observed a man run after her, but he did not come completely through the door. Whitney identified the man as the appellant.

Doctor Cleveland Purdue testified that he treated Betty Outlaw on April 4 for a laceration on the right side of her neck, measuring approximately 8V2 inches. Purdue stated that the cut severed the superficial jugular vein and that a person could go into shock from loss of blood from this vein. He stated that Outlaw’s injury was a quarter of inch deep. In Purdue’s opinion, it would take a relatively sharp instrument to cause such a laceration. Purdue also testified, in part, as follows:

“Q [By the prosecutor] Okay. Now, doctor, would a wound like this in your medical opinion be a wound that could cause a substantial risk of death to a person?
A Yes.”

Further, on cross-examination Dr. Purdue testified:

“Q [By appellant’s trial counsel] You stated that in a wound such as this if it went unattended that there’s a possibility a person could go into shock?
A Yes, sir.
Q And isn’t it true, doctor, that if any of us looses a requisite amount of blood, however amount it takes, we could go into shock regardless of how we loose it?
A Yes, sir.
Q And I guess if you stayed in shock long enough you could die?
A Yes, sir.”

Doctor Purdue stated that the laceration was too large for surgery in the emergency room and surgery had to be performed in the operating room. The laceration required 23 stitches.

Officer J. P. Powell testified that on April 4, 1975, he went to Outlaw’s antique shop. When he arrived, Outlaw ran out to meet him and he observed she was covered with blood, holding the right side of her neck. Powell stated her wound “appeared to be a vicious knife wound of some kind.”

Officer Michael Morton testified that on April 4 he received information concerning the offense, a description of the car, and the license plate number. Morton noticed a car meeting the description and license plate number at approximately 5:30 p. m. and pulled the car over to the side of the road. Morton stepped out of the police car and placed his hand on his pistol, without drawing it. At that time, the appellant jumped back into his car and drove across a pasture into a residential area. After driving between two houses, the appellant drove back onto the highway. After Morton finally stopped appellant, he placed appellant under arrest.

Officer J. W. Glenn testified that he went to the antique shop at approximately 5:10 p. m. on April 4. Glenn saw blood near the back door of the shop but did not see any broken glass. This testimony was also corroborated by Officer Glenn Rosier.

Detective P. J. Kuehn stated that he went out to the scene where Officer Morton finally stopped appellant. Kuehn noticed that there appeared to be blood on the steering wheel of the car, and Kuehn noticed a bag of clothing which had been found three feet from the appellant’s car. A subsequent search of the appellant and the appellant’s car failed to reveal any weapons.

Bob Urbanovsky, a chemist with the Texas Department of Public Safety, testified that he examined the clothing found near appellant’s car and the steering wheel. Ur-banovsky testified that he found blood on the pants and the left shoe of the clothing but did not find blood on the shirt. He also found blood on the steering wheel. He stated that there was not a sufficient amount of blood in order to determine the blood type or to determine whether the blood was human blood.

Doctor Max Roth, called to testify on behalf of the defense, testified that he treated the appellant from December 10, 1974, to March 19, 1975, for a lower back strain. Roth stated that he prescribed a medicine which might tend to make a person dizzy. Appellant sought to show by this testimony that this dizziness was the reason he placed his arm around witness Outlaw.

J. C. Livingston, the appellant’s stepfather, stated that on April 1 the appellant purchased an antique creamer and sugar bowl, with a cabbage design. The sugar bowl did not have a top. It was stipulated by the State that the appellant needed a replacement top for the sugar bowl, having purchased such at a garage sale.

In his second ground of error, the appellant contends that the evidence was insufficient to support the conviction. Specifically, the appellant contends that the evidence failed to show that Betty Outlaw sustained serious bodily injury as defined under Y.T.C.A., Penal Code, Sec. 1.07(a)(34).

V.T.C.A., Penal Code, Sec. 1.07(a)(34) provides:

“ ‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

Appellant contends that Dr. Purdue’s statement that in his opinion such a wound as that suffered by the complainant could cause a substantial risk of death to a person was more of a hypothetical rather than an actual situation. We find appellant’s contention without merit.

It was established that the laceration was a quarter of an inch deep, 8½ inches in length. Such cut severed the superficial jugular vein and blood was “gushing” from that laceration. Several witnesses stated that Betty Outlaw was covered with blood. Doctor Purdue testified that such a wound could cause shock which could result in death and that such a wound could cause a substantial risk of death to a person. We find this evidence sufficient to sustain the conviction. See Windham v. State, 93 Tex.Cr.R. 477, 248 S.W. 51; Limuel v. State, 568 S.W.2d 309 (Tex.Cr.App.), delivered May 3, 1978; cf. Sanchez v. State, 543 S.W.2d 132 (Tex.Cr.App.). Appellant’s contention is overruled.

In his first ground of error, the appellant contends that the indictment is fundamentally defective for failing to allege criminal offense. The relevant portion of the indictment alleges that the appellant:

“ . . . on or about April 4, 1975, did then and there unlawfully commit an offense hereafter styled the primary offense, in that he did intentionally and knowingly cause serious bodily injury to Betty Jane Outlaw.”

As a general rule, an indictment in the language of the statute creating and defining the offense charged will be sufficient. Neill v. State, 225 S.W.2d 829 (Tex.Cr.App.); Lopez v. State, 494 S.W.2d 560 (Tex.Cr.App.); Mears v. State, 557 S.W.2d 309 (Tex.Cr.App.). V.T.C.A., Penal Code, Sec. 22.01 provides, in part:

“(a) A person commits an offense if he: (1) intentionally, knowingly, or recklessly causes bodily injury to another;

V.T.C.A., Penal Code, Sec. 22.02 provides, in part:

“(a) A person commits an offense if he commits assault as defined in Section 22.01 of this code and he:
(1) causes serious bodily injury to another; . . . ”

Consequently, the elements of the offense under Sec. 22.02(a)(1) are: (1) a person (2) intentionally, knowingly, or recklessly (3) causes serious bodily injury to another. See Teal v. State, 543 S.W.2d 371 (Tex.Cr.App.). An indictment for aggravated assault need not allege the manner and means used to commit the assault as such is not an element of the offense but relates only to the certainty and definiteness required to enable the defendant to reasonably understand the nature and cause of the accusation against him. Eanes v. State, 546 S.W.2d 312 (Tex.Cr.App.); see also Acree v. State, 158 Tex.Cr.R. 463, 257 S.W.2d 107. In the instant case, the indictment tracks the statute and is sufficient to charge an offense against the laws of this State. We therefore hold that the indictment was sufficient, absent a motion to quash, to charge an offense under V.T.C.A., Penal Code, Sec. 22.02(a)(1). Appellant’s contention is overruled.

We have examined the appellant’s pro se brief and find that his contentions are without merit and the same are hereby overruled.

The judgment is affirmed.


author: DALLY, Judge.

text:
    Linzy WADE, Appellant, v. The STATE of Texas, Appellee.
    No. 59349.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 18, 1978.
    Appellant’s Motion for Rehearing En Banc Denied Nov. 8, 1978.
    Dain P. Whitworth, Austin, for appellant.
    Ronald D. Earle, Dist. Atty., and Bill White, Asst. Dist. Atty., Austin, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the felony offense of driving a motor vehicle on a public highway while intoxicated. The punishment is imprisonment for three years. The imposition of sentence was suspended and the appellant was granted probation.

Our disposition of this appeal requires that we interpret some of the provisions of the Speedy Trial Act, Chapter 32A, V.A.C.C.P. Subject to exceptions not applicable in this case, the Speedy Trial Act provides that if a defendant is accused of a felony, a court shall grant a motion to set aside the indictment, information, or complaint if the State is not ready for trial within 120 days of the commencement of the criminal action. Art. 32A.02, Sec. 1(1), V.A.C.C.P. The criminal action commenced in this case when the appellant was arrested. Art. 32A.02, Sec. 2(a), V.A.C.C.P.

The appellant was arrested on February 5, 1978. On July 5, the appellant filed a motion to set aside the indictment alleging that more than 120 days had elapsed since the criminal action commenced and the State had not announced ready for trial.

Does the Speedy Trial Act apply to cases pending on July 1, 1978, the effective date of the Act? If so, is the time which elapsed prior to July 1 to be considered in determining whether the motion to set aside the indictment should be granted? We answer the first question yes and the second question no.

The Speedy Trial Act contains no express provisions with regard to its application to pending cases. Although the Legislature did delay the effective date of the Act for one year, this was for the purpose of allowing prosecutors and the courts time to implement procedures to carry out the terms of the Act. This delay in the effective date does not give any indication of the intent of the Legislature with regard to the questions raised in this case.

Unquestionably the Speedy Trial Act relates to procedure; it is not substantive law defining criminal acts and providing for penalties. The general rule is that in the absence of an express intention to the contrary procedural statutes control litigation from their effective date; that is, they apply to both pending and future actions. Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976); Wilson v. State, 473 S.W.2d 532 (Tex.Cr.App.1971); Exxon Corporation v. Brecheen, 526 S.W.2d 519 (Tex.Sup.1975); Southwestern Bell Telephone Co. v. City of Kountze, 543 S.W.2d 871 (Tex.Civ.App.—Beaumount 1976, no writ); Regal Properties v. Donovitz, 479 S.W.2d 748 (Tex.Civ.App.—Dallas 1972, writ ref. n. r. e.). We hold that, in accord with the general rule, the Speedy Trial Act applies to appellant’s and other criminal cases pending on July 1, 1978, as well as to criminal cases commencing on or after that date.

Appellant argues that if the Speedy Trial Act is to be applied to cases pending on July 1, then the terms of Art. 32A.02, Sec. 2, V.A.C.C.P., require that the time which elapsed after the commencement of such cases but prior to July 1 be considered when applying the time limits set out in Art. 32A.02, Sec. 1, V.A.C.C.P. We disagree. Art. 32A.02, Sec. 2, supra, specifies when a case commences for purposes of the Act. It does not speak to the question of how the time limits contained in Art. 32A.02, Sec. 1, supra, are to be applied in cases pending on the effective date of the Act. In fact, the Act as a whole is silent as to this question. Therefore, this Court must ascertain the intent of the Legislature in this respect. We must also rely on the established rules of statutory construction.

An act of the Legislature is operative as notice of its provisions only when it becomes effective as a law. Popham v. Patterson, 121 Tex. 615, 51 S.W.2d 680 (1932); Norton v. Kleberg County, 149 Tex. 261, 231 S.W.2d 716 (1950); Regal Properties v. Donovitz, supra. The Speedy Trial Act became effective as a law on July 1, 1978. That is, July 1, 1978, was the effective date for all of the provisions of the Act, not portions of the Act. Prior to that date, prosecutors, defendants and the courts were neither required to take notice of nor to take any action under the terms of the Act. If the State was not required to take notice of its provisions or to take any action under the Act prior to July 1, the time which elapsed prior to that date cannot be considered when determining motions to dismiss under Art. 32A.02, Sec. 1, supra. The logical extension of the appellant’s argument would be that the cases pending on July 1, 1978, that were commenced even prior to the passage of the Speedy Trial Act would be controlled by its provisions. It defies reason to suggest that the State should have anticipated and followed the terms of a statute not in existence at the time such cases commenced.

In construing a statute, a rational and sensible construction should be favored. 2A Sands, Sutherland Statutory Construction, Sec. 45.12 (4th ed., 1972). We should not ascribe to the Legislature an intention to do an unreasonable thing if the statute is susceptible of a construction that will prevent such a result. Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070 (1927). If we were to construe the Speedy Trial Act in the manner suggested by appellant, and hold that the time which elapsed prior to the effective date of the Act is to be considered in determining motions to set aside the indictment under Art. 32A.02, Sec. 1, supra, we would be saying we believe that the Legislature intended that many cases pending on July 1, 1978, should be dismissed unless the State had taken some action not required by the Speedy Trial Act before that date. We are convinced that such an unreasonable result was not intended by the Legislature. Moreover, we are equally convinced that the Legislature, by specifying that the Speedy Trial Act was to become effective on July 1, intended to strike a reasonable balance between the interests of defendants and the interests of the State. This balance is achieved if, as applied to cases pending on July 1, the time limits specified in Art. 32A.02, Sec. 1, supra, run from that date.

In addition to the rights secured by the Speedy Trial Act, all defendants, including those whose cases were pending on July 1, may assert their right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution, Art. I, Sec. 10 of the Texas Constitution, and Art. 1.05, V.A.C.C.P. See Grayless v. State, 567 S.W.2d 216 (Tex.Cr.App.1978); Easley v. State, 564 S.W.2d 742 (Tex.Cr.App.1978); Turner v. State, 545 S.W.2d 133 (Tex.Cr.App.1976).

In summary, Chapter 32A, V.A.C.C.P., applies to criminal cases pending on July 1, 1978, as well as to cases commenced on or after that date. In determining whether a motion to set aside an indictment should be granted in cases pending on July 1, the time which elapsed prior to that date is not to be considered. In such cases, the time limits specified in Art. 32A.02, Sec. 1, V.A.C.C.P., run from July 1, 1978.

The judgment is affirmed.