author: DALLY, Judge. DOUGLAS, Judge,

text:
    Harold Francis RONK, Appellant, v. The STATE of Texas, Appellee. Nancy Carol RONK, Appellant, v. The STATE of Texas, Appellee.
    Nos. 58853, 58854.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 17, 1979.
    Rehearing En Banc Denied March 28, 1979.
    Herbert Green, Jr., Dallas, for appellant.
    Henry M. Wade, Dist. Atty., W. T. West-moreland, Jr. and Brady W. Sparks, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DALLY, Judge.

Each appellant is appealing from a conviction for murder; the punishment in each case is imprisonment for life.

The appellants, husband and wife, pled guilty to the murder of Heath Lambert, the two-and-a-half year old son of Nancy Ronk by a previous marriage. The appellants were previously convicted for injury to a child, based on the same incident, and sentenced to imprisonment for twenty years. V.T.C.A. Penal Code, Sec. 22.04. Because the indictments omitted an essential element of the offense, the earlier convictions were reversed and the indictments were ordered dismissed. Ronk v. State, 544 S.W.2d 123 (Tex.Cr.App.1976). The indictments on which the convictions before us were based were then returned.

The appellants contend that, in obtaining murder indictments against them following their successful appeals from their earlier convictions for injury to a child, the State violated the rule announced in Blackledge v. Ferry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). We agree, and reverse the convictions.

In Blackledge v. Perry, supra, the appellant, Perry, was initially charged with and convicted of misdemeanor assault, for which he was given a six-month sentence.* Perry then filed notice of appeal, which under North Carolina law entitled him to a trial de novo in the appellate court. After Perry filed his notice of appeal, but before the trial de novo, the prosecutor obtained an indictment charging Perry with felony assault. This indictment was for the same conduct for which Perry had previously been tried and convicted. Perry entered a plea of guilty to the latter indictment and was sentenced to a term of five to seven years in the penitentiary. The United States Supreme Court held that, under the rationale of its decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), a person convicted of an offense is entitled to pursue his statutory right to appeal without apprehension that, if the appeal is successful, the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. The Court held that the action of the prosecutor in bringing the more severe charge violated the Due Process Clause of the Fourteenth Amendment.

The similarities between the instant case and Blackledge v. Perry, supra, are apparent. The appellants, by exercising their right to appeal, succeeded in setting aside their original convictions. They were then indicted for a more serious offense, based on the same conduct for which they had previously been tried. They waived a jury and pled guilty to this new indictment, and received sentences much more severe than they received following their first trial.

The State argues that, because the original indictments were fundamentally defective and void, they alleged no Offense, and that in securing the new indictments the State merely undertook to present correct and valid indictments. We do not find this argument convincing. Even though the child was dead, the State first elected to obtain indictments against the appellants for injury to a child rather than indictments for murder. If murder were the proper charge to be brought against the appellants, why were they not originally charged with murder? In obtaining the new indictments the State did not merely seek to present valid indictments for injury to a child, but rather sought to charge the appellants with the more serious offense of murder. That the appellants’ original indictments were found to be void does not distinguish these cases from Blackledge v. Perry, supra, because under North Carolina law, the exercise by Perry of his right to trial de novo wiped the slate clean; “the prior conviction [was] annulled, and the prosecution and the defense [began] anew ...” 417 U.S. at 22, 94 S.Ct. at 2100. Furthermore, the right of a defendant to be free from apprehension that the State will retaliate if he successfully appeals his conviction should not turn on the ground on which his appeal is based.

There is no evidence that the prosecutor in this case acted maliciously or in bad faith in seeking the murder indictments, but the rules of North Carolina v. Pearce, supra, and Blackledge v. Perry, supra, do not require such a showing. We hold that, under the facts in this case, it was impermissible for the State to respond to the appellants’ successful invocation of their right to appeal by bringing the more serious charge against them. Because the State could not permissibly require the appellants to answer to the murder charge, their guilty pleas do not foreclose them from attacking their convictions on appeal. Blackledge v. Perry, supra.

In the dissenting opinion it is observed that when a jury uninformed of the prior proceedings assesses a greater punishment, or the increased punishment is based on identifiable objective facts which occur after the original sentencing, the due process clause is not offended. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). However, this is wholly inapplicable to the facts of this case since the appellants’ punishment was assessed by the court and not a jury and there is no evidence of identifiable objective facts which occurred after the original sentence.

The dissent admits that there is a violation of due process as applied by the United States Supreme Court in Blackledge v. Perry, supra. However, the dissent says that these judgments should be reformed to show conviction for the offense of injury to a child and the judgment should then be remanded to the trial court for assessment of punishment. To do so would circumvent the rule of Blackledge v. Perry, supra. The rule of Blackledge v. Perry was transgressed when the appellants were indicted for murder and required to stand trial for the more serious offense following their successful appeals from the convictions for injury to a child. If the appellants had been reindicted for the offense of injury to a child rather than murder they might very well have decided on a jury trial or a not guilty plea. They would certainly have been in a better position for attempted plea bargaining.

The reliance on Moss v. State, 574 S.W.2d 542 (1978) and Jones v. State, 532 S.W.2d 596 (Tex.Cr.App.1967) in the dissenting opinion is inappropriate since neither dealt with the Blackledge v. Perry, supra, violation of due process. There were no rein-dictments in these cases. The State in apparent good faith had obtained indictments for burglary of a residence; the proof failed to sustain these allegations, but was sufficient to sustain the lesser included offense of attempted burglary of a building.

Bouie v. State, 565 S.W.2d 543 (Tex.Cr.App.1978) is not authority for reaching the result sought in the dissenting opinion. This can be readily seen by reading a portion of the concurring opinion from which we quote:

“In the instant case the prosecutor had to seek a new indictment for robbery if he intended to prosecute the appellant since the first indictment was held to be fundamentally defective. He later sought and obtained a third indictment, this time for robbery by assault with a' firearm, rather than the original charge of robbery by assault. Though a difference in penalty exists between the offenses, Article 1408, V.A.P.C., 1925 [footnote omitted], the difference was largely neutralized by the decision in Furman v. Georgia, 408 U.S. 288, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). However, the prosecutor did not stop with changes in the offense charged in the primary court, but alleged two prior convictions for enhancement whereas only one had been alleged in the first and second indictments. The indictments were not identical, and it appears clear that there was an escalation of the charges which, if proven, would require an automatic life sentence to be imposed and which, if not used, would give the prosecutor greater leverage in any plea bargain. Thus, like Perry, we are presented with facts suggesting a likelihood of potential prosecutorial vindictiveness. A person convicted of an offense is entitled to pursue his right of appeal without apprehension that the prosecution will retaliate by substituting a more serious charge for the original one thus subjecting him to a significantly increased potential period of incarceration.” [Emphasis added.]

Under Art. 1408, supra, the maximum punishment for robbery by assault was imprisonment for life, while the maximum punishment for robbery by assault with a firearm was death. This difference in potential punishments was abolished by Furman v. Georgia, supra, which declared unconstitutional the death penalty as it was then imposed. Thus, unlike the instant case, the error in Bouie v. State, supra, did not result from the substitution of a more serious offense for that originally charged.

The judgments are reversed and the causes remanded.

DOUGLAS, Judge,

dissenting.

The majority holds that a defendant, after setting aside a void indictment, can be given neither an increased sentence nor charged with a more serious offense. They also conclude that this case must be reversed and remanded rather than returned for assessment of punishment.

An indictment is fundamentally defective only when it fails to allege an offense against the laws of Texas and, thus, does not invoke the jurisdiction of the trial court. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974); Ex parte Cannon, 546 S.W.2d 266, 268 (Tex.Cr.App.1976) (concurring opinion). When a case is tried on such an indictment, the proceeding and judgment are void.

The instant case presents a question concerning the effect of such an absolutely void conviction. The majority concludes that following a void conviction the State may not reindict on a charge more serious than the purported charge contained in the original indictment and the subsequent sentence may not be greater than the original sentence. In so doing, the majority improperly attaches significance to the original proceeding. A void conviction has no significance; it was obtained by a court lacking jurisdiction and is a nullity. This case should be considered as if the original trial, a nullity, did not occur. Thus, the record would indicate only that the State attempted to indict the appellant for injury to á child. At a subsequent date, the State secured a murder indictment. The majority would not hold that such a reindictment would be improper.

The logic of the majority quickly falls apart when other situations are considered. For example, had appellants been acquitted at the void proceeding, would the majority hold that double jeopardy prevented a subsequent trial upon a valid indictment? Its logic in this case indicates that double jeopardy would bar such a prosecution. Thus, we would be left with the curious result that a void proceeding is void with respect to a conviction but not an acquittal. A good rule of law works both ways. A void proceeding must be just that — void; for legal purposes, it never happened. The majority makes it void sometimes and not-so-void at other times.

The majority reverses and remands this case because “the appellants have been convicted of the more serious offense of murder.” Even assuming there was error in the case, the disposition is not proper.

In determining the proper relief, it is appropriate to determine the exact injury of which complaint is made. Here, appellants complain of both prosecutorial and judicial vindictiveness. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Both Blaekledge and Pearce are bottomed on the theory that a defendant should neither be deterred from, nor penalized for, appealing a conviction. Thus, after successfully attacking a conviction, the State may not prosecute on a more serious charge nor may a judge impose a more severe sentence. However, Pearce and Blaekledge did not impose an absolute bar to increased punishment. When a jury, uninformed of the prior proceedings, assesses a greater punishment or the increased punishment is based on identifiable, objective facts which occur after the original sentencing, the due process clause is not offended. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973); North Carolina v. Pearce, supra.

The injury, then, is a vindictive indictment and sentence which would serve to deter the defendant. The vindictive nature of the punishment could be cured by a remand for punishment. Bouie v. State, 565 S.W.2d 543 (Tex.Cr.App.1978). However, the majority rejects the remand for punishment because “murder”.is more severe than “injury to a child.” The legal consequences of both convictions are the same.

If the causes must be remanded, they should be sent back for the proper assessment of punishment not to exceed twenty years.


source: Caselaw Access Project

author: ROBERTS, Judge. DOUGLAS, Judge,

license: Public Domain

text:
    Michael Wayne BLEDSOE, Appellant, v. The STATE of Texas, Appellee.
    No. 55048.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 14, 1979.
    Rehearing En Banc Denied March 28, 1979.

      Thomas L. Cox, Jr., Dallas, for appellant.
    Henry M. Wade, Dist. Atty., William M. Lamb, William C. Dowdy, III (“Trey”) and Sam G. Longoria, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for attempted burglary of a vehicle. V.T.C.A., Penal Code, Sections 15.01 and 30.04. Upon a plea of not guilty, appellant was convicted by a jury; punishment was assessed by the court at one year of confinement in the county jail.

After careful consideration, we sustain appellant’s contention that the evidence is insufficient to support his conviction, and accordingly, pursuant to the dictates of Burks v. United States and Greene v. Massey, we order that the judgment of conviction be set aside and reformed to show an acquittal.

Viewing the evidence in the light most favorable to the verdict, Fernandez v. State, 564 S.W.2d 771 (Tex.Cr.App.1978), the record reflects that on July 10, 1976, at approximately 9:45 a. m., Dallas Police Officer Fred Sibley received a radio message that an automobile was being burglarized on the parking lot of a nearby doctor’s office. Immediately responding to the call, Sibley arrived on the scene and observed appellant near the passenger side door of a 1973 Ford L.T.D. automobile. Sibley then observed appellant duck between the cars as if he were trying to conceal himself.

A search of the immediate area revealed a screwdriver and clothes hanger lying on the ground approximately three feet away from appellant. On cross-examination Sib-ley testified that as he entered the parking lot he observed appellant standing near the complainant’s car, but that he could not see the appellant’s hands because the appellant was facing away from him. Sibley was then asked by defense counsel:

“Q Then when you say he appeared to be unlocking the door then you’re just guessing that, you have nothing — other than he was standing with his back, that’s all you observed, is that correct?
“A Yes, sir, with his hands in front of him.
“Q His hands were in front? You couldn’t see his hands.
“A Right, where I couldn’t see his hands.”

It was further established that a close inspection of the complainant’s car revealed no scratches or pry marks which would indicate that entry had been attempted; also, there was no evidence of flight by the appellant.

Section 15.01, supra, of the Penal Code defines the offense of criminal attempt and delineates the punishment attached thereto. Section 15.01(a) provides:

“(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”

The intended offense in the present case is that of burglary of a vehicle, V.T.C.A., Penal Code, Sec. 30.04, which provides that:

“(a) A person commits an offense if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft.
“(b) For purposes of this section, ‘enter’ means to intrude:
“(1) any part of the body; or
“(2) any physical object connected with the body. . . . ”

Thus, criminal attempt responsibility attaches when one commits an “act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” (Emphasis supplied.) V.T.C.A., Penal Code, Sec. 1.07(a)(1) defines the word “act” as “a bodily movement, whether voluntary or involuntary. . .."

After reviewing and considering all of the evidence in the present case, including the incriminating circumstances surrounding appellant’s arrest, we are unable to conclude that the appellant committed an “act,” as that word is defined by Section 1.07(a)(1), supra, that amounted to more than mere preparation to effect the object offense; he was not seen touching the complainant’s car and, as previously stated, there were no scratch or pry marks on the car which indicated an attempted entry. Appellant’s mere presence at the scene is not alone sufficient to support his conviction. Ashabranner v. State, 557 S.W.2d 774, 776 (Tex.Cr.App.1977). Nor, under the present circumstances, do we attach significance to the fact that a screwdriver and clothes hanger were found within the area of appellant’s immediate control. A person should not be held criminally responsible simply because a vigilant police officer intervenes before he begins to implement his criminal designs. See and cf. Jackson v. State, 145 Tex.Cr.R. 46, 165 S.W.2d 740 (1942).

We find that the State’s reliance on Hines v. State, 458 S.W.2d 666 (Tex.Cr.App.1970) (Opinion on the State’s Motion for Rehearing) is misplaced in light of the facts of the present case. In Hines, the defendant was observed at the back door of the complaining witness’s house with one hand on the screen door handle through which he was peering. Also, the evidence showed that the defendant gained access to the premises by going through a fence gate. In the present case, however, there is no evidence that appellant touched the complainant’s vehicle, or that he was unlawfully upon the premises where the vehicle was parked, consequently, we are unable to point to an affirmative aet by the appellant which amounted to more than mere preparation which tended but failed to effectuate the intended offense, i. e., there is no evidence that appellant committed an act tending to effectuate the breaking into or entering of the complaint’s car. See and cf. Pickett v. State, 542 S.W.2d 868 (Tex.Cr.App.1976) (broken glass door); Johnston v. State, 477 S.W.2d 891 (Tex.Cr.App.1972) (hole in roof); Smith v. State, 477 S.W.2d 274 (Tex.Cr.App.1972) (pried door); Smith v. State, 460 S.W.2d 927 (Tex.Cr.App.1970) (pried window screens). See also Stone v. State, 396 S.W.2d 882 (Tex.Cr.App.1965).

We conclude that the evidence, when viewed in the light most favorable to the verdict, shows, at very best, that at the moment of his arrest appellant was preparing to commit the offense of burglary of a vehicle, but that his conduct had not yet reached a point where it could be said to amount to more than mere preparation. The evidence to support appellant’s conviction was therefore insufficient.

The judgment of conviction is set aside and reformed to show an acquittal.

DOUGLAS, Judge,

dissenting.

The evidence in this case is sufficient to support the conviction for attempted burglary. At approximately 9:45 in the morning an Officer Sibley received a message that an automobile was being burglarized on a parking lot near a doctor’s office. In a very short time, Officer Sibley arrived at the scene and saw the appellant standing next to a Ford automobile. The officer approached appellant from behind. Appellant ducked between the cars in an apparent attempt to conceal himself when he saw the officer. Within two or three feet from the appellant the officer found a clothes hanger and a screwdriver. The car had a tape player and police scanner inside that could be seen from the outside. As the officer approached it appeared to him that appellant might have been unlocking the door; he then whirled and ducked down, kneeling to the ground between two cars.

Appellant testified that he was tying his shoe but the officer testified that he was not. Appellant told the officer that he was coming from the doctor’s office but when he testified he said that he was coming from a store. He testified that the previous year he had been convicted for misdemean- or theft and that he had been convicted of burglary of a motor vehicle and had been placed on probation. Appellant also testified that he had one foot on the car.

The majority opinion says that there was no flight in the present case. Apparently appellant thought attempted flight would be useless in view of the proximity of the officer who walked upon appellant from his back side. The facts in this case are somewhat like those in Hines v. State, 458 S.W.2d 666 (Tex.Cr.App.1970), where the conviction was for attempted burglary. In that case, Hines was seen at the back door of a house with his hand on the door handle and one hand on the wall of the house looking through the screen door into the house. When the owner came up the appellant jumped off and ran. On the night in question, one passing the house could have seen a ladies’ purse on the couch in the room. The door from which Hines fled opened to the room where the purse was located. In that case we found the evidence sufficient to support the conviction. There were no tools found on or near the defendant in that case. In the present case there were tools found within two or three feet. Appellant gave an explanation to the officer that he had been to the doctor’s office but when he testified he testified that he was coming from a store. His testimony also showed that he knew how to use a hanger to enter a motor vehicle. The evidence is sufficient to support the conviction for attempted burglary. It shows more than mere preparation. He had gone to the automobile, he had the tools there. By his own testimony he had one foot on the car and it appeared to the officer that he was trying to unlock the car.

The judgment should be affirmed.

      . Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1.

      . Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15.

      . Sibley testified on direct examination that when he first entered the parking lot and observed the appellant “[i]t appeared that he might be unlocking the door or something.”


author: TOM G. DAVIS, Judge.

text:
    Emma Jewel COLE, Appellant, v. The STATE of Texas, Appellee.
    No. 59957.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 14, 1979.
    Rehearing En Banc Denied March 28, 1979.
    Melvyn Carson Bruder, Dallas, for appellant.
    Henry M. Wade, Dist. Atty. and Stephen J. Wilensky, Asst. Dist. Atty., Dallas, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from an order revoking probation.

On March 1, 1974, appellant entered a plea of guilty to the offense of burglary of a habitation. Punishment was assessed at three years, probated.

On September 8, 1975, the State filed a motion to revoke appellant’s probation, alleging, inter alia, that the appellant violated a condition of her probation in that She failed to report as directed in July, August, and September, 1975. The appellant pled true to this allegation, but was allowed to present “circumstances” for the court’s consideration. The trial court revoked the probation, and reduced punishment to two years.

Appellant contends that the trial court erred in not withdrawing the appellant’s plea of true when defensive issues were raised. The appellant also maintains that the evidence was insufficient to support a finding that the appellant failed to report as alleged.

In Roberson v. State, 549 S.W.2d 749, this Court held that the trial court should have withdrawn a plea of true when the probationer took the stand and raised a defensive issue. The Court cited Gates v. State, Tex.Cr.App., 543 S.W.2d 360, and Woodberry v. State, Tex.Cr.App., 547 S.W.2d 629, in support of this holding. In Roberson, the State alleged that the probationer had committed a burglary, and thus violated a condition of his probation. The probationer pled true to the allegation, but testified that he had no intent to commit theft when he entered the habitation. Although this Court affirmed the revocation on other grounds, it held that the trial court should have withdrawn the plea and entered a plea of not true.

In Moon v. State, 572 S.W.2d 681, this Court was faced with the similar situation of whether a trial court is obligated to withdraw a plea of guilty when the evidence raises defensive issues. This Court held that when the defendant waives a jury trial and pleads guilty to the trial court, the trial court has no duty to withdraw the plea sua sponte even if the evidence raises defensive issues. The Court stated:

“The 1965 Code of Criminal Procedure provides that a defendant may waive a jury trial and enter a plea of not guilty before the court in all ‘ except capital cases. Articles 1.13 and 1.14, V.A.C.C.P. There now seems no valid reason for the court to withdraw the guilty plea and enter a plea of not guilty for the defendant when the defendant enters a plea of guilty before the court after waiving a jury. It is the duty of the trial court to consider the evidence submitted and as the trier of the facts the court may find the appellant guilty of a lesser offense and assess the appropriate punishment or it may find the defendant not guilty. It would serve no purpose to withdraw the plea of guilty and enter a not guilty plea. Those cases in which this Court has reached a different result are overruled to the extent they conflict with the opinion in this case.” 572 S.W.2d at 682.

Those prior cases reaching a different result included Gates v. State, supra, and Wood-berry v. State, supra, relied on by the Court in Roberson.

A probationer is not entitled to a jury at the hearing to revoke his probation. Article 42.12, Sec. 8(a), V.A.C.C.P.; Valdez v. State, Tex.Cr.App., 508 S.W.2d 842. In probation revocations, just as in guilty pleas after a waiver of jury trial, the trial court is the sole trier of facts. Battle v. State, Tex.Cr.App., 571 S.W.2d 20; Grant v. State, Tex.Cr.App., 566 S.W.2d 954; Kelley v. State, Tex.Cr.App., 550 S.W.2d 69. As the Court noted in Moon, the trial court must make its findings after consideration of all evidence presented, including defensive issues. See Houlihan v. State, Tex.Cr.App., 551 S.W.2d 719; Hulsey v. State, Tex.Cr.App., 447 S.W.2d 165. Thus, here, as in Moon, there is no reason for the trial court to withdraw the defendant’s plea of true even if he later presents defensive issues.

We hold that the trial court did not err in failing to withdraw the plea of true.

Roberson v. State, supra, also held that since Roberson’s plea of true should have been withdrawn, his challenge to the sufficiency of the evidence would be reviewed notwithstanding the plea of true. 549 S.W.2d at 750-751. This Court had previously held that the sufficiency of the evidence could not be challenged in the face of a plea of true. Benoit v. State, Tex.Cr.App., 561 S.W.2d 810; Jiminez v. State, Tex.Cr.App., 552 S.W.2d 469; Guillot v. State, Tex.Cr.App., 543 S.W.2d 650; Mitchell v. State, Tex.Cr.App., 482 S.W.2d 221. In light of our discussion above, we find that appellant’s plea of true, standing alone, is sufficient to support the revocation of probation.

We find that the trial court did not abuse its discretion in revoking the appellant’s probation. Insofar as our decision in Roberson v. State, supra, conflicts with this decision, it is overruled.

The judgment is affirmed.

ONION, P. J., dissents.


author: ODOM, Judge.

text:
    John L. REDD, Appellant, v. The STATE of Texas, Appellee.
    No. 56216.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 28, 1979.
    Rehearing En Banc Denied March 28, 1979.
    Peter A. Lesser, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Tatum, Winfield Scott and D. Mark Elliston, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for burglary of a vehicle wherein punishment was enhanced to life imprisonment. Appellant claims error was committed by improper prosecution jury argument, undue limitations on voir dire and discovery, and dismissal of a juror.

Appellant’s first through fourth grounds of error concern a claim of improper jury argument. Careful examination of the record indicates that the statements complained of could be viewed as either a response to appellant’s argument or a reasonable deduction from the evidence but it is not necessary to go that far. Each of the four statements was objected to, the objection was sustained and the jury instructed to disregard the statement. “It is well established that a jury instruction to disregard a statement or remark will ordinarily cure the error, if any.” Watson v. State, Tex.Cr.App., 532 S.W.2d 619. That principle holds true in this case. Any error was cured by the instructions to disregard. See Fowler v. State, Tex.Cr.App., 500 S.W.2d 643.

Appellant’s fifth ground of error claims error was committed when the trial judge excused a juror on his own motion. He stated the juror was excused for “health and other reasons.” The juror had stated on voir dire that she had an inner ear problem which would keep her from coming to court if it acted up and it was liable to do so at any time. She had not had any problem with it for six months but earlier it had kept her in bed off and on for a year. She testified that she never knew when it would act up and she was on medication for it at the time. The judge excused her.

Article 35.19, V.A.C.C.P., mandates an absolute disqualification of a prospective juror by stating: “No juror shall be impaneled when it appears that he is subject to the second, third or fourth cause of challenge in Article 35.16, though both parties may consent.” The fourth cause of challenge in 35.16, V.A.C.C.P., states in part:

“(4) That he . has . such bodily . . . defect as to render him unfit for jury service,. . ."

No error is shown. See Ex parte Bronson, 158 Tex.Cr.R. 133, 254 S.W.2d 117, at 121. The fifth ground of error is overruled.

Appellant’s grounds of error six through nine complain about the trial court’s refusal to allow him to determine what the verdicts were in previous trials where prospective jurors had served on a jury. He made a motion for discovery, which was denied, requesting the court to order the prosecutor to divulge that information if he had it. Appellant also filed a motion for a continuance to be allowed to go search the county’s jury records to find the verdicts in question. This too was denied and defense counsel was not allowed to ask prospective jurors the verdicts rendered by the juries they had served on. The record reflects that this information was in the prosecutor’s possession as the district attorney’s office kept records of all past criminal juries and the verdicts they rendered. Appellant claims the fact that the State had this information and he did not constitute fundamental unfairness and a violation of his constitutional rights in that it kept him from intelligently using his peremptory strikes. The prosecutor asked the jurors who indicated previous criminal jury service what the offense had been, how long ago it was, if a verdict had been reached and if anything about their previous experience would render them unable to be fair and impartial in this case. Defense counsel was allowed to inquire more specifically into when the prior trial had been, the number of the court, and the name of the defendant and the judge.

In Smith v. State, Tex.Cr.App., 513 S.W.2d 823, we held that permissible areas of interrogation to determine use of peremptory challenges are broad and not to be unnecessarily limited.

“However, the decision as to the propriety of any question is left to the discretion of the trial court and the only review will be for abuse of that discretion.” Smith at 826.

See also Moore v. State, Tex.Cr.App., 542 S.W.2d 664. Discretion was not abused in Smith because the proposed question duplicated other questions. Discretion was abused in Abron v. State, Tex.Cr.App., 523 S.W.2d 405, where defense counsel was not allowed to question deeply enough into racial prejudice in a rape case involving people from two different races. In the present case defense counsel was prevented from inquiring into and discovering what verdicts had been reached in cases where those prospective jurors with prior jury service had served. This was not an abuse of discretion. Some limitation on voir dire is necessary or many trials would never end. See Freeman v. State, Tex.Cr.App., 556 S.W.2d 287. See also Martin v. State, Tex. Cr.App., 577 S.W.2d 490 (1979).

Appellant’s motion for discovery asserted that the information in question was available under the Open Records Act, Art. 6252-17a, Vernon’s Ann.Civ.St., and claims on appeal that the Act was violated by failure to produce this information. We do not reach this question because of appellant’s failure to follow the procedures set out in the Act. See Sections 7 and 8 of the Act. The ground of error is overruled.

The judgment is affirmed.

ROBERTS, J., concurs in the result.


author: CLINTON, Judge.

text:
    Llan Howard SEWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 56437.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 14, 1979.

      Anthony C. Aguilar, El Paso, for appellant.
    E. W. Boedeker, Dist. Atty., Levelland, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Upon a conviction of possession of more than four ounces of marihuana and a subsequent assessment of punishment at ten years, probated, appellant brings this appeal. Four grounds of error are presented for review. We conclude that the first ground of error, which challenges the sufficiency of the evidence to sustain the conviction, is dispositive of the case.

Analysis of the sufficiency issue requires a detailed review of the facts, including activities of multiple defendants and law enforcement agents over a period of several days in at least six towns and two states. The case presented by the State is circumstantial, and it revolves primarily around appellant’s association with persons at critical times and places.

The State’s first witness was William Garcia, a narcotics officer with the New Mexico State Police. Garcia testified that based on information received from an informant he set up a surveillance of Otley Smith in El Paso, Texas beginning on May 24,1976. Smith was suspected of dealing in marihuana. On May 25, 1976, Smith drove a black Trans Am automobile to the airport in El Paso and picked up appellant there. Over the next two days Garcia observed Smith and appellant in the Trans Am at various locations in El Paso. At one point the car was taken to a shop which installed two powerful accessory lights on the front bumper.

Garcia stated that Smith and appellant left El Paso on the afternoon of May 27, 1976, traveling toward Carlsbad, New Mexico in the Trans Am. At a point about sixty miles east of El Paso, the Trans Am stopped next to a “pink colored” Lincoln automobile and a white Oldsmobile hitched to a trailer. Garcia observed Smith and appellant talking to a man identified as Noah Castle. Smith and appellant got back into the Trans Am and drove to Carlsbad, New Mexico. The Oldsmobile followed the Trans Am, but Garcia did not see it actually enter the town. The Trans Am next stopped at a discount store in Carlsbad. After a brief stay at the store, Smith and appellant got back in the car and drove to Lovington, New Mexico. After stopping for food and fuel, the Trans Am headed north toward Tatum, New Mexico. Garcia stated that he identified both Smith and appellant as the occupants of the car at that time. The car arrived in Tatum at around 10:30 p. m., and without stopping it headed east toward the town of Bronco, Texas. Upon arriving at Bronco, the Trans Am headed south for a short distance, and then it came back to Bronco. It then headed east for a short distance, and again returned to Bronco. Garcia did not follow the car during those short trips, but did begin to follow it again as it headed north. Garcia stated that he observed two people in the car at that time, though he did not identify them. The Trans Am drove north for about eight miles and pulled off on a side road. Garcia and his partner stopped their car north of the Trans Am. He estimated that they remained there for about an hour in the darkness, during which time they lost radio contact with the other agents and saw only “[r]eflections of light” on the highway.

Garcia testified that he and his partner heard what sounded like gun shots. They headed south toward some reflecting lights, and after traveling for about ten minutes they discovered that other officers had arrested Noah Castle and his wife at that spot. The white Oldsmobile was also at the scene partially loaded with bags of marihuana. Garcia and his partner waited in the area about an hour, then headed south where they observed that another officer had arrested Smith in the Trans Am.

On cross-examination Garcia stated that he never saw the Lincoln automobile after the sighting east of El Paso. He testified that when he saw appellant in Carlsbad he was wearing “blue jeans and a light colored shirt.” Garcia stated that he had constant sight of the Trans Am from Lovington, New Mexico until it arrived in Bronco, Texas. However, he admitted losing sight of the car for ten minutes when it headed south from Bronco, during which time he did not know the activities of the car or its passengers. When the car returned to Bronco it had two persons in it, but Garcia could not identify them. He testified that appellant was not at the scene where the arrests took place and the marihuana was discovered. He admitted that the last time he could positively identify appellant in the Trans Am was in Tatum, New Mexico around an hour and forty-five minutes prior to the arrests and discovery of the marihuana. He further admitted that the last time he saw two people in the Trans Am was as it left Bronco about an hour and a half before the arrest occurred. Further, Garcia stated that he searched the Trans Am and found no marihuana in it.

The next State witness was Alvin Miller, a narcotics officer with the New Mexico State Police. He also participated in the surveillance of Smith in El Paso and saw him pick up appellant at the airport on May 25, 1976. Miller observed the black Trans Am with Smith and appellant as occupants leave El Paso and travel to Carlsbad. He verified that the car stopped east of El Paso next to the Lincoln and Oldsmobile automobiles. When they arrived at Carlsbad, Miller split the agents into two teams; one followed the Trans Am, and one followed the Oldsmobile. Miller kept the Trans Am under observation from Lovington, New Mexico to Tatum, New Mexico, and he lost visual sight only temporarily several times along the way. Miller identified Smith and appellant as having been in the car at Lov-ington, but could only say that two people were still in it at Tatum, New Mexico. The Trans Am was then followed to Bronco, Texas. Two persons were still in the Trans Am which stopped on a side road north of Bronco. Surveillance units parked north and south of the Trans Am and waited. Miller said that he heard an airplane which was flying south of their location. It was flying with no lights on, and it was in the area for “around 15 or 20 minutes.”

Shortly after he stopped hearing the aircraft, Miller heard gun shots to the south. He and his partner headed south and found that the Oldsmobile and trailer, which contained “a large amount of sacks,” had been seized and Noah Castle had been arrested. He also observed that the Trans Am was stopped and Smith was arrested. An officer turned over to Miller a “plastic container” which included an “identification of” appellant.

On cross-examination Miller stated that no one followed the Lincoln automobile, and he had no idea where it went. He stated that the last time he could positively identify appellant was in Lovington, New Mexico, but he did observe two people in the car after that. He admitted that he lost sight of the Trans Am when it turned south temporarily at Bronco, but that the car was out of view for only a short time. He estimated that he was parked for only about “15 or 20 minutes” north of Bronco before he heard the gun shots to the south. He also verified that appellant was not at the scene of the arrests, that the Trans Am was around a mile to a mile and a half from the Oldsmobile when Smith was arrested, and that no contraband was found in the Trans Am. He stated that appellant was wearing blue jeans and a light colored shirt.

The next State witness was Glen Alexander, an agent for the New Mexico State Police. He first observed Smith in the discount store in Carlsbad. He was not able to identify appellant, but saw Smith get into the Trans Am with another person. Alexander folLwed the car out of town to Lov-ington. He was unable to identify appellant there either, but again observed two people in the Trans Am. He followed the car to the point at which it stopped north of Bronco, Texas, and parked on a side road. Alexander stood on top of his car and observed the Trans Am about a mile north of him by looking through binoculars. Shortly thereafter he heard an airplane, and he observed it fly over them at “about a hundred feet.” It had no lights on. Alexander looked back at the Trans Am parked on the road, and he saw the car lights flash on. He described the lights as “very bright.” The airplane circled back around and “floated in" close to the Trans Am. Alexander did not actually see the plane land, but he got back into his car and headed toward the Trans Am. When he approached the area, Alexander saw a trailer with the back doors open. He also said that he observed two people, Noah and Betty Castle, whom he pursued and arrested. The Trans Am was about a mile north on the highway making a “u-turn.” The car sped by and headed three or four miles south where it was stopped by another officer. Smith was arrested in the Trans Am.

On cross-examination Alexander stated that he never saw appellant, and he could not identify him as having been involved. He then admitted that the bright light he saw before the airplane circled around could have come from the Oldsmobile rather than the Trans Am.

The next State witness was Yance Adams, also a narcotics agent for the New Mexico State Police. He testified that he was Agent Alexander’s partner in a surveillance beginning in Carlsbad, New Mexico. He observed two people in the Trans Am, but did not identify either of them. He verified Alexander’s testimony as to the events leading up to the arrests. He observed Noah and Betty Castle arrested by the trailer, and he saw Smith arrested in the Trans Am. He estimated that the large bags in the area weighed around 900 pounds. Adams testified that when he first observed the trailer there were three people standing by it, but he could not identify them. The three ran toward a fence on the side of the road. Agent Alexander fired three warning shots and then pursued them. Adams said all three people he observed were about the same size as Smith and all three wore light colored shirts.

On cross-examination Adams admitted that he never saw appellant during the course of the surveillance. He further said that he had no idea where the third person he saw by the trailer came from or went to after the arrests took place.

The State next called Jesse Franco, another narcotics agent for the New Mexico State Police. He participated in the surveillance in El Paso, and he also followed the Trans Am to Carlsbad. He observed Smith and appellant stop and talk to three people by a Lincoln and an Oldsmobile. He identified two of them as Noah Castle and his wife. He followed the Oldsmobile to Hobbs, New Mexico, and then to Bledsoe, Texas. He saw the car and trailer again when it was taken into custody by other agents. He did not see appellant at any time after the discussion next to the Lincoln and Oldsmobile.

The next witness for the State was Ken Thompson, a New Mexico State Policeman. He was working in the Tatum area on May 27, 1976, when he was solicited by other agents to join a surveillance. He traveled to a spot north of Bronco, Texas where he parked on a side road. He was radioed that the Trans Am was coming his direction. He stopped the car and arrested Smith, who was the only passenger. While chasing the Trans Am, Thompson observed several pieces of paper thrown out the driver’s window. He recovered those papers, and they included appellant’s driver’s license and University of Texas at El Paso student identification card. Also among the various cards and pictures found was a business card with the name “Noah” on it and a phone number.

The State next called Fred Jack, a narcotics agent for the Texas Department of Public Safety. His testimony showed chain of custody of the automobiles and bags found north of Bronco, Texas. He stated that the Trans Am was registered to Jeannie Merrill. The final witness for the State was a chemist that identified the substance in the bags as marihuana. Appellant did not present any evidence.

The general rule for reviewing the sufficiency of evidence is that it will be viewed in the light most favorable to the jury verdict. Bowers v. State, 570 S.W.2d 929, 932 (Tex.Cr.App.1978). However, this Court has applied a different test when the verdict is based on circumstantial evidence; the evidence is insufficient if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused. Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977). As was stated in Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969):

“In ascertaining whether the guilt of the accused has been established to a moral certainty, the appellate court will review evidence in light of the presumption that the accused is innocent. The court will not presume any acts against the accused that are not shown to have been committed by him. Furthermore, a conviction will not be sustained on appeal if the evidence does not sufficiently establish all material elements of the offense charged.”

The State’s evidence in a possession of controlled substances case must establish that the accused (1) knew the substance possessed was a controlled substance, and (2) exercised care, control and management over the contraband. Herrera v. State, 561 S.W.2d 175 (Tex.Cr.App.1978); Harrison v. State, 555 S.W.2d 736 (Tex.Cr.App.1977). We have held that both of these elements may be proved circumstantially:

“[CJontrol may be shown by actual or constructive possession; and knowledge, being subjective, must always be inferred to some extent, in the absence of an admission by the accused. An affirmative link to the person accused with the possession of narcotics may be established by showing independent facts and circumstances which indicate the accused’s knowledge and control of the narcotics.” Rodriguez v. State, 496 S.W.2d 46 (Tex.Cr.App.1973).

The defendant’s possession need not be exclusive, and evidence showing joint possession with another is sufficient. Harrison v. State, supra; Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977). The question presented, therefore, is whether the independent facts and circumstances shown by the testimony summarized above excludes every other reasonable hypothesis other than that appellant knew and exercised control over the marihuana found north of Bronco, Texas.

This Court has carefully reviewed the “affirmative link” in numerous cases. We have held that even when the defendant is present at the scene, there must be additional facts to show knowledge and control. Underwood v. State, 571 S.W.2d 7 (Tex.Cr.App.1978); Harrison v. State, supra. For example, in Hausman v. State, 480 S.W.2d 721 (Tex.Cr.App.1972) we concluded that even though officers had observed persons smoking around a campfire and appellant was found sleeping by the fire with a bag of marihuana one foot from his head, the evidence was insufficient to show exercise of control over the substance. In the recent case of Nieves v. State (No. 57,011, delivered January 3, 1979), we concluded that the evidence was insufficient to find knowledge of the contraband when the defendant was sitting in the cab of a truck containing over 600 pounds of marihuana.

Since appellant was not identified at the scene where the marihuana was found, we must look with even closer scrutiny at the independent facts from which we are to infer that he knew of and exercised control over the substance. The evidence presented by the State shows that appellant was seen in the company of Otley Smith in El Paso and that he traveled at least as far as Lovington, New Mexico in the Trans Am driven by Smith. The positive identification of appellant was made at Lovington. However, since the car was followed from Lovington to Bronco, Texas without stopping, and two people were observed as passengers in the car, we may reasonably conclude that appellant traveled as far as Bronco. However, the car was lost temporarily south of Bronco, and the passengers in the Trans Am were not viewed during the time the car was parked on the side road north of Bronco. The officers’ testimony as to the time the car was parked in that location varied from twenty minutes to one and a half hours. One agent saw three people at the scene of the trailer, and only two were arrested. However, the agent could not identify that third person. The State’s case requires a finding that: (1) the evidence circumstantially proves that appellant was in the area where the marihuana was found, and (2) that his presence in the area combined with his association with Smith is sufficient to show knowledge and control over the contraband. We conclude that the evidence does not justify such a finding.

This case differs from Powell v. State, 502 S.W.2d 705 (Tex.Cr.App.1973), which also involved possession of marihuana unloaded from an airplane. However, in Powell three people were observed loading marihuana into a pickup truck, the defendant was found in the pickup, a small quantity of marihuana was found on the defendant, and testimony showed that the defendant appeared to be under the influence of narcotics. The facts established directly that the defendant was at the scene and that he exercised control over the marihuana by loading it in the truck.

The State also contends that the driver’s license and business cards found on the road help prove appellant’s guilt. That evidence only indicates that appellant was in the Trans Am at one time and that he knew “Noah,” who was possibly the same Noah Castle who was arrested at the trailer. Those facts are undisputed, but fall far short of bolstering the State’s case. See Reid v. State, 474 S.W.2d 702 (Tex.Cr.App.1972), in which the defendant’s driver's license was found in a box of marihuana, but we held the evidence of the affirmative link to be insufficient.

The question remains whether the evidence was sufficient to show that appellant was a party to the possession of marihuana. Under the prior penal code the State had to prove that a defendant was actually present at the time of commission of the offense or, if not present, actually engaged in furtherance of a common purpose and design in some other place. Cain v. State, 551 S.W.2d 728 (Tex.Cr.App.1977); Robinson v. State, 493 S.W.2d 780 (Tex.Cr.App.1973). While under that code an “accomplice” could not be convicted as a “principal,” the new Penal Code has abolished such distinctions. Cain v. State, supra; V.T.C.A. Penal Code, Sec. 7.01(c). The State must prove that the defendant acted with intent to promote or assist in the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person in its commission. Y.T.C.A. Penal Code, Sec. 7.02(a)(2). This can be done by circumstantial evidence. Ex Parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976). Further, the evidence is viewed in regards to events before, during and after commission of the offense. Wygel v. State, 555 S.W.2d 465 (Tex.Cr.App.1977); Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975).

The only evidence in this case involving appellant was as to events before the offense occurred. The evidence shows that appellant was a passenger in the Trans Am driven by Smith for a prolonged period of time before the commission of the alleged offense. There is no evidence, however, of any aiding in the carrying out of the offense in any way other than riding in the car. We do not believe that the new party statute was intended to extend criminal liability to that extent. Absent other facts and circumstances showing that appellant encouraged or aided the criminal conduct, we hold the evidence to be insufficient.

For these reasons the judgment is reversed and the cause remanded with instructions to the trial court to enter a judgment of acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

      . See V.T.C.A. Penal Code, Sec. 7.01, 7.02.


author: ODOM. Judge.

text:
    William David TINNEY, Appellant, v. The STATE of Texas, Appellee.
    No. 56459.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 14, 1979.

      Paul J. Chitwood, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Steve Wilen-sky and Les S. Eubanks, Jr., Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ODOM. Judge.

This is an appeal from a conviction for burglary wherein punishment was enhanced by two prior felony convictions and assessed at life imprisonment. The sufficiency of the evidence is not challenged but appellant asserts error was committed during the punishment phase with regard to the enhancement provisions.

This case was tried before a jury. Appellant did not make an election to have the jury assess punishment. At the end of the guilt phase of the trial, Tinney was convicted. The trial judge thereupon dismissed the jury over appellant’s objections. The judge then found true the allegations in the indictment that appellant had been twice previously convicted of a felony and assessed punishment at life in accordance with the provisions of Art. 12.42(d), Penal Code.

Appellant complains that the trial court exceeded its authority by finding true the prior conviction allegations in the indictment. He contends that these were fact questions and, as such, should have been determined by the jury. The contention is not well taken. There is no constitutional right to have the jury assess punishment. Allen v. State, Tex.Cr.App., 552 S.W.2d 843; Jones v. State, Tex.Cr.App., 502 S.W.2d 771; Hill v. State, Tex.Cr.App., 493 S.W.2d 847. It is possible, however, to have the jury do so if the provisions of Art. 37.07, Section 2(b), V.A.C.C.P. are adhered to. That article requires a defendant to make a written election when he enters his plea if he wishes the jury to determine punishment. Absent such an election, the judge automatically assesses punishment.

Appellant relies particularly upon Art. 36.13, V.A.C.C.P., which provides:

“Unless otherwise provided in this Code, the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby.”

The State in turn cites Art. 37.07, V.A.C. C.P., which provides in part:

“Sec. 2. (a) . . .
“(b) Except as provided in Article 37.-071, if a finding of guilty is returned, it shall be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, that (1) in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began, and (2) in other cases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury.”

The truth or untruth of the allegations in an habitual offender indictment pertaining to prior convictions is clearly a matter to be taken up in the punishment phase of the bifurcated trial utilized in this state. Appellant’s failure to make the election for jury assessment of punishment left all questions to be considered in the punishment phase up to the trial judge and waived his right for a jury determination of the allegations of prior convictions.

Appellant next alleges error was committed when the trial court admitted into evidence pen packets containing copies of indictments, judgments, and sentences pertaining to his prior convictions. He states there is a fatal variance between the indictments and the final judgments. In cause no. D-4822-IJ his complaint is that the indictment states that the case is in Criminal District Court No. 2 while the conviction, as evidenced by the judgment and sentence, was obtained in Criminal District Court No. 3. Appellant asserts that the variance is fatal because there is no order showing that the case was transferred from Court No. 2 to Court No. 3 and alleges that without such an order there is nothing to show Court No. 3 had jurisdiction over the case. He contends that since there was no showing of jurisdiction in the trying court the conviction cannot be used against him for enhancement purposes. A similar claim is made for cause no. C-71-1769 NK, the other prior conviction used.

Article 12.42(d) Penal Code, requires that before a life sentence can be imposed on a defendant as an habitual offender, it must be shown that he has been twice previously convicted of felony offenses and that the second previous offense occurred subsequent to the conviction for the first offense becoming final. The state can carry its burden by introducing copies of the judgment and sentence in each of the felonies used for enhancement and connecting them with the defendant. In this case the judgments and sentences were properly certified and appellant was identified with them by fingerprint evidence. They were in all respects in conformity with the enhancement allegations in the indictment. Once the state made a prima facie case, the burden shifted to appellant. Cf. Lewis v. State, Tex.Cr.App., 501 S.W.2d 88. The evidence was sufficient to find appellant had been convicted twice before of felonies.

The judgment is affirmed.


text:
    Steve ESCOBAR, Appellant, v. The STATE of Texas, Appellee.
    No. 56888.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 14, 1979.

      Robert J. Kuhn, Austin, for appellant. Ronald D. Earle, Dist. Atty. and Charles E. Hardy, Asst. Dist. Atty., Austin, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for burglary; punishment was enhanced to life pursuant to V.T.C.A., Penal Code Sec. 12.-42(d).

Appellant urges reversal due to a fatal variance between the allegation and proof of the complainant’s name. The indictment alleged the complainant was Dan Wiederhold. The witness at trial testified his name was Donald Ray Wiederhold, and on cross-examination he testified that he had not ever been known as Dan Wieder-hold.

In Martin v. State, Tex.Cr.App., 541 S.W.2d 605, the Court held:

“[W]e will . . . refrain from disturbing on appeal a jury or trial court determination that names in question are idem sonans unless evidence shows that the names are patently incapable of being sounded the same or that the accused was misled to his prejudice.

This test on appeal is stated in the alternative and requires reversal if the names are patently incapable of being sounded the same.

In Grant v. State, Tex.Cr.App., 568 S.W.2d 353, we applied this test and held that “Mary” and “Marion” were patently incapable of being sounded the same, and reversed. In this case the witness testified that he had not ever been known by the name alleged in the indictment. That testimony, we conclude, constitutes evidence that the witness’s name, “Donald,” and the alleged name, “Dan,” are patently incapable of being sounded the same. We also note that here, as in Grant, supra, appellant timely raised the issue at trial by motion for instructed verdict. We accordingly sustain the ground of error.

The indictment and proof being at fatal variance such as to render the evidence insufficient to support a conviction for the burglary of the residence of Dan Wieder-hold as alleged, the judgment is reformed to show an acquittal.

      . We note that an acquittal on the charge of burglary of the residence of Dan Wiederhold would not bar a prosecution for the residence of Donald Wiederhold. We also note that a prosecution for the burglary of Donald Wieder-hold’s residence will not lie on the indictment in this case, in any event, but must be initiated by a separate accusation.


author: ROBERTS, Judge.

text:
    Ex parte Alfredo Aguilar GARCIA.
    No. 58981.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 14, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

ROBERTS, Judge.

A jury convicted the petitioner of unlawful possession of firearm by felon, and it found to be true two enhancement allegations of prior felony convictions. Accordingly, the petitioner was sentenced to confinement for life.

On appeal, we affirmed the judgment in a per curiam opinion (No. 50,243 on June 4, 1975). We denied two applications for ha-beas corpus without opinion (on October 6, 1976 and January 5, 1977).

In his third application for habeas corpus relief, the petitioner attacked one of the prior convictions used to enhance his punishment. This was a conviction in Criminal No. 70-B-122 in the United States District Court for the Southern District of Texas, Brownsville Division. The petitioner claimed that the federal indictment was fundamentally void for failure to allege that he possessed a firearm “in commerce or affecting commerce.” See 18 U.S.C., Appendix Section 1202(a); United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). A majority of this Court held that we could not speculate on the retroactive effect of Bass, and that comity forbade us to permit collateral attacks on federal convictions used for enhancement purposes in state proceedings. Ex Parte Garcia, 560 S.W.2d 948 (Tex.Cr.App.1978).

Taking us at our word, the petitioner turned to federal court for a determination of whether the federal indictment was invalid. It appears that on March 14, 1978, the United States District Court for the Western District of Texas granted the petitioner’s motion for writ of error coram no-bis, and ordered the conviction in Criminal No. 70-B-122 vacated and set aside. In his fourth application for habeas corpus relief, the petitioner has introduced in the trial court a certified copy of the federal court’s order.

The considerations of comity which led us to deny the petitioner’s third application are no longer present. It now appears that one of the convictions used for enhancement has been set aside by the federal court. One of the convictions properly having been voided, the relief sought is granted.


text:
    Roel Wayne GALLOWAY, Appellant, v. The STATE of Texas, Appellee.
    No. 59256.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 14, 1979.
    Donald J. Driscoll, Dallas, court appointed, for appellant.
    Henry M. Wade, Dist. Atty., J. T. Lang-ford, Reed W. Prospere and Les S. Eubanks, Jr., Asst. Dist. Attys., Dallas, Robert Hut-tash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

ROBERTS, Judge.

The appellant was charged with aggravated robbery and with being a repeat offender. Before a jury, he pleaded guilty to aggravated robbery and untrue to the enhancement allegation. The jury found that the enhancement allegation was true and assessed the punishment at 35 years’ confinement.

The appellant’s first ground of error attacks his prior conviction. The appellant was a juvenile when he was convicted for the prior offense, and the juvenile court waived its jurisdiction and transferred the matter to the district court. See Article 2338 — 1, Section 6, of Texas Revised Civil Statutes (in effect on February 21, 1973, the date of the transfer). The juvenile court’s file is in the record as an exhibit. The appellant makes three arguments: He says that the juvenile court’s order transferring the matter was “invalid” because it does not state sufficient reasons. Second, he says that the file contains no written waiver of the ten days’ time provided by the statute to prepare for the certification hearing. Third, he argues that the juvenile proceedings denied due process of law, in that appointment of counsel, appointment of guardian ad litem, a diagnostic study, an investigation, a hearing, and the transfer all were evidently accomplished on the same day. For these reasons, the appellant argues, the conviction obtained in district court cannot be used for enhancement.

A prior conviction that was alleged for enhancement may be collaterally attacked if it is void (as it would be if it were based on a fundamentally defective indictment) or if it is tainted by a constitutional defect (as it would be if an indigent defendant had been denied counsel in a felony trial). Other, lesser infirmities in a prior conviction may not be raised by a collateral attack. Such infirmities include insufficiency of evidence and irregularities in the judgment or sentence. It does not matter that such infirmities might have resulted in a reversal had they been presented by an appeal.

These principles Have been applied in juvenile cases to permit a collateral attack on the jurisdiction of the juvenile court to enter a transfer order. Johnson v. State, 551 S.W.2d 379 (Tex.Cr.App.1977) (failure to serve the child with summons is a jurisdictional defect). But a mere question of the sufficiency of a transfer order is not properly addressed to us. Dillard v. State, 477 S.W.2d 547, 550 (Tex.Cr.App.1971).

Therefore, the questions before us are whether the transfer procedure was erroneous, and (if it was) whether such errors may be the basis of a collateral attack.

The only reasons recited in the transfer order were that the appellant was 15 years old at the time of the alleged offense and 16 years old at the time of transfer, that the acts alleged in the petition would constitute felonies (robbery with firearms and theft' over $50) if committed by an adult, and that the court after diagnostic study, social evaluation, and full investigation is of the opinion that it is contrary to the best interest of the child and of the public to retain jurisdiction. A substantially identical order was held to be insufficient in In re J. R. C., 522 S.W.2d 579 (Tex.Civ.App.—Texarkana 1975, writ ref’d. n. r. e.). But we note that this holding emphasized the greater requirements for specific reasons imposed by Section 54.02(h) of the Texas Family Code. See the draftsman’s comments in Dawson, “Delinquent Children and Children in Need of Supervision,” 5 Texas Tech Law Review 509, 564-565 (1974). This requirement was not in effect at the time of this transfer. We cannot say that the order was defective under the requirements of Article 2338 — 1, Section 6, of the Texas Revised Civil Statutes, then in effect. The appellant argues that the order did not afford due process, citing Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045 (1966). We think that Kent does not support this conclusion. For one thing, Kent did not purport to do more than construe the District of Columbia juvenile statutes, and it is not clear that it sets constitutional requirements. For another, the juvenile court did not give Kent a hearing or recite any reason for transfer. At least some reasons were given for the appellant’s transfer.

The absence of a written waiver of ten days’ time to prepare for the transfer hearing is not error, for no such written waiver was required. Compare Section 6(e) with Section 7-B(c), of Article 2338-1, Texas Revised Civil Statutes.

The record does not show any denial of due process from the fact that several orders were entered on the same day. The record shows that the motion to certify the appellant was filed more than a month before the orders were entered. With that much preparation time, we cannot say as a matter of law that it was impossible to execute the various orders in one day.

Even if any of the claimed errors would have been sustained on appeal, it is not available for a collateral attack. “An appeal in juvenile cases lies with the Court of Civil Appeals, not with this Court.” Dillard v. State, 477 S.W.2d 547, 550 (Tex.Cr.App.1971). The appellant evidently did not appeal the transfer order. We have even reviewed a transfer order at the next stage, an appeal from an adult conviction, although we doubted the propriety of the review. Tatum v. State, 534 S.W.2d 678, 680 (Tex.Cr.App.1976). The appellant wants us to go even further, to permit his collateral attack on an enhancement count. Our discussion above indicates that the claimed errors would not render the prior conviction either void or constitutionally infirm, and they may not form the basis of a collateral attack. The first ground of error is overruled.

In his only other ground of error, the appellant complains of evidence of an extraneous offense: possession of a switchblade knife. A police officer testified that when he patted-down the appellant after a traffic stop he found a switchblade knife. The trial court overruled the appellant’s objection to the answer. Later the knife was introduced into evidence over the appellant’s objection. The knife had not been used in the robbery. We do not think the ground was preserved properly, for the next witness testified without objection that the officer “advised me that he had recovered a switchblade knife off of the suspect . . .” Even if the ground were preserved, and even if it were error, the error was harmless. The appellant had pleaded guilty, the jury heard evidence that he had executed a deliberate plan to rob a bank using a pistol, and the jury heard evidence that the appellant was still on parole of a ten-year sentence for robbery with a firearm. We do not think that evidence that the appellant had a switchblade knife in his pocket would have such influence on the jury’s assessment of punishment as to require reversal. See Cunningham v. State, 500 S.W.2d 820 (Tex.Cr.App.1973). The ground is overruled.

The judgment is affirmed.

      . E. g., Ex parte Sanford, 562 S.W.2d 229 (Tex.Cr.App.1977).

      . E. g., Ex parte Hall, 546 S.W.2d 303 (Tex.Cr.App.1977).

      . E. g., Owens v. State, 540 S.W.2d 324 (Tex.Cr.App.1976).

      . E. g., Bowles v. State, 550 S.W.2d 84 (Tex.Cr.App.1977).

      . The cases are in conflict. For example, compare Nichols v. State, 511 S.W.2d 269 (Tex.Cr.App.1974) with Schuenemann v. State, 501 S.W.2d 319 (Tex.Cr.App.1973).


author: SHANNON, Justice.

text:
    Alister B. MAHON, Appellant, v. L. Alvis VANDYGRIFF, Savings and Loan Commissioner, et al., Appellees.
    No. 12905.
    Court of Civil Appeals of Texas, Austin.
    Jan. 10, 1979.
    Rehearing Denied March 21, 1979.

      Jon Mercer, Houston, for appellant.
    John L. Hill, Atty. Gen., Catherine A. Brown, Asst. Atty. Gen., Austin, for L. Al-vis Vandygriff, Savings and Loan Commissioner.
    Larry Temple, Austin, for United Savings Association of Texas.
   SHANNON, Justice.

The opinion of this Court filed on January 10, 1979, is withdrawn, and the following opinion replaces it.

Alister B. Mahon appeals from the order of the district court of Travis County dismissing for want of jurisdiction his administrative appeal of an order of the Savings and Loan Commissioner. The basis for dismissal was that Mahon failed to file a motion for rehearing within fifteen days after the entry of the Commissioner’s final order. During the administrative process the Commissioner entered three orders. The determination of which of the orders was final is the controlling issue in this appeal. Tex. Rev.Civ.Stat.Ann. art. 6252-13a, § 16(e) (Supp.1978).

Five savings and loan associations applied to the Commissioner to reorganize and merge pursuant to Tex.Rev.Civ.Stat.Ann. art. 852a, § 10.03 (Supp.1978). The Commissioner conducted a hearing at which Ma-hon, a stockholder of one of the associations, participated and opposed the merger.

On November 17,1977, the Commissioner entered an order approving the merger conditioned upon (1) the receipt of a ruling from the Internal Revenue Service and (2) the receipt of a resolution from the Federal Home Loan Bank Board. Mahon filed a motion for rehearing to that order on December 2, 1977. The Commissioner overruled that motion on December 21, 1977.

Two existing savings and loan associations filed protests on November 22, 1977, to the Commissioner’s order of November 17. The protests were withdrawn later. The basis for the protests, as pleaded by the Commissioner, was that the merger would materially constrict the association’s ability to compete within the vicinity.

On December 13, 1977, the Commissioner entered a second order which incorporated the November 17 order and recited the filing and subsequent withdrawal of the two protests by the two associations. The December 13 order concluded .that “. the Commissioner acknowledges and declares that his said November 17, 1977, Order incorporated herein by reference is now final.” Mahon filed no motion for rehearing to that order.

On December 30, 1977, the Commissioner signed the third and last order in the proceeding. That order recited and incorporated by reference both the November 17 and the December 13 orders. The December 30 order stated that the conditions set out in the November 17 order had been met and therefore the merger was effective as of December 31, 1977. Mahon filed no motion for rehearing to the December 30 order.

Mahon filed his administrative appeal in district court on January 18, 1978. In his original petition Mahon pleaded that he sought “. . . review of that certain Final Order entered by the Commissioner on December 30, 1977.” The Commissioner and the savings and loan associations filed special exceptions to the original petition upon the basis that the petition did not show that Mahon had filed a motion for rehearing to the December 30, 1977, order. The district court sustained the exceptions and permitted Mahon to replead.

Mahon filed his first amended original petition on March 27, 1978, ". . . for the review of that certain Order entered by the Commissioner on November 17, 1977.” The district court sustained special exceptions to that petition in that it did not reflect that the November 17 order was an appealable order and, even if it were ap-pealable, that the petition was filed more than thirty days from the date it became final and appealable.

Finally, Mahon filed a second amended original petition, in which he recited the administrative steps leading to his filing of the original petition in district court. The parties again filed special exceptions which questioned the jurisdiction of the district court to entertain the administrative appeal. The district court sustained the exceptions and entered an order dismissing the administrative appeal for want of jurisdiction. We will affirm the order of the district court.

In defense of the order of dismissal, the Commissioner and the savings and loan associations rely upon the Administrative Procedure and Texas Register Act, Tex.Rev. Civ.Stat.Ann. art. 6252-13a (Supp.1978). The pertinent provisions of that act relating to appeals from administrative orders are set out below:

“Sec. 16(c) A decision is final, in the absence of a timely motion for rehearing. . .
⅜ * * * * *
“(e) Except as provided in Subsection (c) of this section [not applicable], a motion for rehearing is a prerequisite to an ap peal. A motion for rehearing must be filed within 15 days after the date of rendition of a final decision or order .” (Emphasis added)

The legislature could hardly express more positively its intention that the filing of a motion for rehearing is required in order to perfect an administrative appeal to district court. The cases so hold. Texas State Board of Pharmacy v. Kittman, 550 S.W.2d 104 (Tex.Civ.App.1977, no writ); Hurlbut v. State Board of Insurance, 555 S.W.2d 180 (Tex.Civ.App.1977, no writ); Tex. Alcoholic Bev. Commission v. Lancaster, 563 S.W.2d 380 (Tex.Civ.App.1978, no writ).

Mahon argues that he complied with § 16(e) by filing a motion for rehearing to the November 17 order. The Commissioner and the savings and loan associations respond that it was immaterial that a motion for rehearing was filed to the November 17 order, because the November 17 order was not a final order. The final order, say the Commissioner and the savings and loan associations, was the December 30 order to which Mahoir never filed a motion for rehearing.

For an administrative order to be final, there must be nothing left open for future disposition. If a right is made contingent upon the occurrence of some future event, the order is not final. City of Houston v. Turner, 355 S.W.2d 263 (Tex.Civ.App.1962, no writ); Allen v. Crane, 257 S.W.2d 357 (Tex.Civ.App.1953, writ ref’d n. r. e.); Payne v. Texas Water Quality Board, 483 S.W.2d 63 (Tex.Civ.App.1972, no writ). See also, Moody v. Texas Water Commission, 373 S.W.2d 793, 797 (Tex.Civ.App.1963, writ ref’d n. r. e.).

The Commissioner approved in the November 17 order the application for reorganization and merger of the savings and loan associations subject to receipt of (1) a ruling from the Internal Revenue Service that the reorganization and merger constituted a “tax free reorganization” and (2) a resolution from the Federal Home Loan Bank Board approving insurance of accounts in the newly merged savings and loan association. Until these requirements were met, there could be no merger. Had not those conditions been met, the November 17 order would have been ineffective. Because approval by the Commissioner of the merger in the November 17 order was contingent upon favorable action by two federal agencies, the November 17 order was not final.

The November 17 order was not final for yet another reason found in the provisions of the Savings and Loan Act. Texas Rev.Civ.Stat.Ann. art. 852a, § 10.03 provides that the Commissioner’s order approving the merger of associations shall become final ten days after the same is delivered “. . . unless an association within the vicinity of the . . . merging . associations shall within such time request a public hearing before the Commissioner in regard to such order, objecting to such order on the basis that the . merger . . would materially constrict the ability of the objecting association to compete in its vicinity.” (Emphasis added) Two associations filed protests on November 22 to the Commissioner’s order of merger and requested a public hearing. The protests and requests for hearing were withdrawn later. The November 17 order could not have become final until after the protests were disposed of or withdrawn.

The December 30 order recited “. . . that all conditions of the merger approved by the Commissioner’s November 17,1977, Order have now been met and [the Commissioner] further declares that at the close of business on December 31,1977 . [the associations] shall be and are reorganized and merged into one surviving association . . .” (Emphasis added)

The December 30 order left nothing open for disposition. The conditions of the Commissioner’s approval, set out in the November 17 order, had occurred. It was only with the entry of the December 30 order that the Commissioner finally and completely disposed of the application before him. The December 30 order was the only final order entered by the Commissioner. To have appealed that order, Mahon must have filed his motion for rehearing with the Commissioner . . within 15 days after the date of rendition of a final decision or order . . . ” which he failed to do.

The judgment is affirmed.

      . The preferable method to question jurisdiction is by plea to the jurisdiction rather than by special exception. Appellant made no complaint of the use of special exceptions.


author: KLINGEMAN, Justice.

text:
    SECURITY SERVICE FEDERAL CREDIT UNION, Appellant, v. Thomas W. STONG, Appellee.
    No. 16061.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 31, 1979.
    Rehearing Denied March 14, 1979.
    Terence A. Willis, San Antonio, for appellant.
    Samuel D. Dibrell, San Antonio, for ap-pellee.
   OPINION

KLINGEMAN, Justice.

This is a summary judgment proceeding. Security Service Federal Credit Union sued Thomas W. Stong to collect on a promissory note alleged to be dated October 24,1975, in the sum of $1,957.66, and bearing interest at the rate of nine per cent per annum. Defendant’s sworn answer consisted of a general denial, and an affirmative defense that he did not execute the note described in plaintiff’s petition. Defendant additionally filed a motion for summary judgment, also sworn, in which he denied the execution of the note above described; filed a general denial; and asserted that plaintiff failed to tender to the court or attach to his original petition the promissory note made the basis of this action. Attached to the motion is a sworn affidavit-of Thomas W. Stong, which is more fully set forth hereinafter. Plaintiff subsequently filed its first amended petition, seeking recovery on a note alleged to have been executed and delivered by defendant to plaintiff on November 18, 1974, in the principal sum of $2,000.00, with interest at the rate of nine per cent per annum. The first amended petition alleges default, acceleration of payments and maturity of the note, and asks judgment in the sum of $1,957.66, plus interest and attorney’s fees. In addition, plaintiff controverted defendant’s motion for summary judgment as hereinafter set forth.

At the hearing, the trial court granted defendant’s motion for summary judgment, and decreed that plaintiff take nothing.

On appeal, the credit union asserts by seven points of error that the trial court erred in rendering judgment for defendant because (1) defendant did not deny the execution and delivery of the note alleged in plaintiff’s first amended petition and made the basis of this suit; (2) plaintiff did not have the burden of proof to tender or produce the promissory note in the summary judgment proceeding; (3) plaintiff’s pleadings are not insufficient as a matter of law; (4) defendant’s contention that such pleadings are insufficient is not a proper ground for summary judgment; (5) there is a genuine issue as to a material fact (i. e., whether or not defendant is indebted to plaintiff); (6) defendant did not sustain his burden of showing that there is no genuine issue as to a material fact and that he is entitled to a judgment as a matter of law; and (7) defendant’s contention that he is not indebted to plaintiff is not supported by proper pleadings of such affirmative defense.

Defendant’s contention that the summary judgment was properly granted rests on plaintiff’s failure to introduce, attach, or file the original of the promissory note sued upon; failure to file a sworn or verified copy thereof; or to account for non-production of the note at the hearing. Defendant further insists that he did not execute the note made the basis of this action and contends that he owes plaintiff nothing. In summary, he urges that he is entitled to judgment as a matter of law on the basis of the pleadings.

The record before us contains only the transcript. The summary judgment evidence consists of a supporting affidavit made by defendant and a controverting affidavit made by the collection manager of the credit union. Both affidavits are those of interested witnesses or parties.

The contents of the two affidavits may be summarized as follows:

Supporting Affidavit of Defendant-Movant
Defendant did not on or about October 24, 1975, execute or deliver to plaintiff a promissory note in writing promising to pay plaintiff the sum of $1,957.66. As of the date of the affidavit, defendant is not indebted to plaintiff for any sum of money-
Controverting Affidavit of Plaintiff
Defendant on or about November 18, 1974, executed and delivered to plaintiff a promissory note wherein defendant agreed to pay plaintiff the sum of $2,000.00, plus interest at the rate of nine per cent per annum. Sometime around January, 1976, an employee of Security Service Federal Credit Union made a mistake in attempting to follow defendant’s instructions to apply his share accounts toward paying off all his loans at the credit union, and incorrectly put information into a computer requesting that defendant’s Loan 12 be paid off instead of Loan 13. This error resulted in defendant’s having been sent his share balances without the loan having been paid in full.
Affiant is a custodian of records at the credit union and has attached to the affidavit a quarterly statement prepared in connection with federal regulations governing federal credit unions. The statement reflects the status of defendant’s member account number 8030-04, which is the account number for the loan of $2,000.00 above described, and the statement sets forth a zero balance in a column labeled “share” and a balance of $1,957.66 in a separate column labeled “loans.” Such attached copy is a true copy of the quarterly statement showing the status of defendant’s account as of December 31, 1976. The status of such account has not changed since that date, other than accrual of interest, and defendant, as of the date of the signing of plaintiff’s controverting affidavit, is indebted to the credit union in the amount of $1,957.66, plus accrued interest, and reasonable attorney’s fees.

Rule 166-A of the Texas Rules of Civil Procedure provides that summary judgments shall be rendered if it is shown that “there is no genuine issue as to any material fact and [that] the moving party is entitled to judgment as a matter of law.” The burden of proof is on the movant, and all doubts as to the existence of a genuine issue of material fact are resolved against him. The evidence must be viewed in the light most favorable to the party opposing the motion. If the motion involves the credibility of affiants or deponents, or the weight of the showings or a mere ground of inference, the motion should not be granted. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Evidence which favors the movant's position is not considered unless it is uncontradicted. If such uncontradicted evidence is from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony. This exception is especially true where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so. After all the evidence has been sifted in this manner, the Court must determine whether the movant is entitled to a judgment as a matter of law. Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

Defendant asserts vigorously that under his pleading (which includes a general denial and a plea alleging plaintiff’s failure to introduce the original promissory note, or to produce a sworn or verified copy thereof), he is entitled to judgment as a matter of law, and that summary judgment was properly granted. Defendant relies on several cases to support this contention. See Texas National Corp. v. United Systems International, Inc., 493 S.W.2d 738 (Tex.1973); Perkins v. Crittenden, 462 S.W.2d 565 (Tex.1970); Alexander v. Houston Oil Field Material Co., 386 S.W.2d 540 (Tex.Civ.App.—Tyler 1965, writ ref’d n. r. e.). These cases differ, however, from the one before us; in each of these eases the movant for summary judgment was the owner or holder of the note sued on, and failed to produce or introduce the original of such note, or to attach a sworn or verified copy. The maker of the note in each case filed a general denial. Under these facts, the trial court in each case granted summary judgment for the plaintiff, the owner of the note involved. Each of these summary judgments was reversed by the appellate courts, and each cause was remanded for a trial on the merits. The posture of the parties in these cases, however, is exactly the reverse of what we have here. In these cases, the movant for summary judgment was the note owner or holder. In the present case, the movant is the maker of the note. We agree with the holdings in defendant’s cited decisions, since these cases correctly placed the burden of proof on the movant. The trial court in the present case, however, did not. Defendant’s reliance on these cases to support his summary judgment is misplaced.

In Swilley v. Hughes, 488 S.W.2d 64 (Tex.1972), ’the Supreme Court of Texas was faced with an appeal from a suit on a promissory note in which the defendant-makers had been granted summary judgment on the basis of an affirmative defense. The Court held that the granting of the motion was improper since the defendant had not shown, as a matter of law, that there was no consideration for the note sued on or that the agreed consideration had failed. Thus, the court’s finding established that in such situations the burden is on the defendant-movant to conclusively prove all the essential elements of his affirmative defense. Later, in Oram v. Gen eral American Oil Co., 513 S.W.2d 533 (Tex.1974), the defendant-movant relied upon the statute of limitations as an affirmative defense to bar the plaintiff’s cause of action. The Supreme Court held that the non-movant plaintiff was under absolutely no duty to respond to defendant’s summary judgment proof since the defendant had failed to conclusively establish that affirmative defense.

To support his motion for summary judgment in the present case, defendant relies on defenses that he did not execute the note and that he does not owe plaintiff any amount of money. It was his burden to establish these defenses as a matter of law. This he failed to do. The only summary judgment evidence consists of two affidavits of interested witnesses. These affidavits are conflicting and contradictory on the defenses relied upon by defendant.

Defendant also contends that plaintiff’s pleadings are insufficient as a matter of law, and that under the pleadings defendant is entitled to a summary judgment. Although certain courts of civil appeals have indicated that a motion for summary judgment oh the pleadings “partakes of the offense of a general demurrer,” a defendant’s motion for summary judgment is not per se a general demurrer to the sufficiency of the petition. Instances in which such a motion can be granted are very limited, and the case before us does not present such a situation. It is not a case in which the facts alleged by plaintiff establish the absence of a right of action, or an insuperable barrier to a right of recovery. Under the record before us, defendant was not entitled to judgment as a matter of law, and the trial court erred in granting defendant’s motion for summary judgment.

The judgment is reversed and remanded to the trial court for a new trial.

      . The Court in its opinion stated:
      Under Rule 166-A, Texas Rules of Civil Procedure, the party moving for summary judgment has the burden of establishing that there exists no material fact issue and that movant is entitled to judgment as a matter of law. When a defendant moves for summary judgment on the basis of his affirmative defense, he must, therefore, conclusively prove all essential elements of that defense. Cf. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). Respondents thus had to show, as a matter of law, that there was no consideration for the note sued on or that the agreed consideration had failed.
      The only summary judgment proof offered was the deposition of ... a party and an interested witness. In order for the testimony of an interested witness to establish a fact, as a matter of law, it must be ‘clear, direct and positive’ with ‘no circumstances in evidence tending to discredit or impeach such testimony.’ Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.1965); Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1942). (Recital of facts omitted.) Those facts are inconsistent with the testimony of [the deponent] that the bargained-for consideration had failed. So, within the summary judgment proof there lie circumstances tending to discredit [the] testimony on failure of consideration. Respondents failed to establish the defense as a matter of law and were not entitled to summary judgment.
      488 S.W.2d 64, 67.