author: DAUGHTREY, Judge.

text:
    Early L. SEIBER and Larry L. Seiber, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    June 11, 1976.
    Certiorari Denied by Supreme Court Sept. 7, 1976.

      Philip A. Condra, Oak Ridge, for plaintiffs-in-error.
    R. A. Ashley, Jr., Atty. Gen., and David L. Raybin, Asst. Atty. Gen., Nashville, James B. Scott, Dist. Atty. Gen., Clinton, for defendant-in-error.
   OPINION

DAUGHTREY, Judge.

This appeal from the defendants’ conviction by an Anderson County jury presents us with a single issue for resolution: whether after jeopardy has attached in a misdemeanor case a General Sessions Court may bind an accused to the Circuit or Criminal Court upon a finding under T.C.A. § 40-416 that the offense merits a fine in excess of fifty dollars. We hold that a subsequent indictment and retrial under such circumstances violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and the identical provision in Art. 1, § 10 of the Tennessee Constitution.

Under T.C.A. § 40-118 the General Sessions Court is given jurisdiction

. to try and determine and render final judgment in all misdemeanor cases brought before said court by warrant or information wherein the person charged with such misdemeanor enters a plea of guilty in writing or requests a trial upon the merits and expressly waives [in writing] an indictment, presentment, grand jury investigation and jury trial . . . . In such cases the trial shall proceed before the court without the intervention of a jury, and the court shall enter such judgment, and may inflict such punishment within the limits provided by law for the particular offense, as the court may determine proper . . ., but nothing herein shall be construed to grant such court the power to impose a fine in excess of fifty dollars ($50.00) . . . and the court shall have no jurisdiction of the trial of misdemeanors for which the minimum punishment is a fine of more than fifty dollars ($50.00).

The limitation on the imposable fine results from the provision in Art. 6, § 14 of the Tennessee Constitution to the effect that “(n)o fine shall . . . exceed fifty dollars, unless it shall be assessed by a jury .” Thus the legislature found it necessary to augment the jurisdictional authority of the General Sessions Court by further providing in T.C.A. § 40-416:

If the offense merit a fine exceeding fifty dollars ($50.00), or imprisonment and fine of any amount . . ., the justice shall not render judgment against the offender . . ., but shall bind the party to appear at the next circuit or criminal court.

I.

The two defendants, Early L. Seiber and Larry L. Seiber, were arrested on February 25, 1975, and charged with resisting arrest, aiding the escape of a prisoner, and destruction of public property, all growing out of an incident which occurred four days earlier. On March 4, 1975 they pleaded not guilty before the Anderson County Trial Justice Court, and executed written waivers of their right to presentment or indictment and to trial by jury. The State presented six witnesses and the defense four, including the testimony of one of the defendants. At the close of the proof, after overruling a defense motion to dismiss, the judge bound the defendants to the grand jury and placed them on bond. From the record it appears that his order was based on a. determination under T.C.A. § 40-416 that the offense merited as a penalty a fine greater than fifty dollars.

Subsequently the defendants were indicted for rescue of a person in lawful custody (T.C.A. § 39-3801) and malicious destruction of property (T.C.A. § 39-4501). They interposed a plea of former jeopardy, in the form of a pre-trial motion to dismiss, which was overruled in the Criminal Court. Again the State produced its case against the defendants, calling five witnesses and tendering a sixth. The defense presented two witnesses, and then moved unsuccessfully for a directed verdict. After due deliberation the jury assessed each defendant a total fine of $400.00, and the trial judge added thereto a sentence of eleven months and twenty-nine days incarceration. A subsequent motion for a new trial again raising the double jeopardy issue was overruled by the trial court.

II.

The facts below have been stipulated, and all parties agree that jeopardy had attached in the Trial Justice Court prior to the Magistrate’s § 40-416 bindover order. See State v. Daniels, 531 S.W.2d 795 (Tenn.Cr.App.1975). The question for our resolution is whether, by reason of the former proceedings in general sessions court, the defendants were “twice put in jeopardy.”

We think it is clear that both the proceedings in general sessions court and those in the criminal court were full adjudicatory hearings, and that both imposed on these defendants precisely the kind of jeopardy or risk encompassed by the Fifth Amendment. As the United States Supreme Court has recently described it in Breed v. Jones, 421 U.S. 519, 529, 95 S.Ct. 1779, 1786, 44 L.Ed.2d 346, 355 (1975):

. the risk to which the term jeopardy refers is that traditionally associated with “actions intended to authorize criminal punishment to vindicate public justice.” Because of its purpose and potential consequences, and the nature and resources of the State, such a proceeding imposes heavy pressures and burdens— psychological, physical, and financial — on a person charged. The purpose of the Double Jeopardy Clause is to require that he be subject to the experience only once “for the same offense.” (Citations omitted.)

In Breed the Court further quoted from United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), reaffirming “(t)he policy , of avoiding multiple trials [which] has been regarded as so important that exceptions to the principle have been only grudgingly allowed.” Id., 420 U.S. at 343, 95 S.Ct. at 1022, 43 L.Ed.2d at 357.

It is the prosecution’s contention that the situation before us should be deemed such an exception to the constitutional rule against double jeopardy, based on one of two theories.

First, the State argues that the Trial Justice Court judge was acting within his statutory authority under T.C.A. §.40-416. But it is axiomatic that a federal constitutional right may not be abrogated by the operation of a state statute. Further, the State contends that a magistrate must hear evidence in order to determine in judicious fashion whether the particular offense in fact merits a fine in excess of fifty dollars. We agree that the court’s order under T.C.A. § 40-416 should have some basis in fact and reason; it will otherwise constitute an abuse of the discretion implicitly granted to the magistrate under the statute. But we. do not think that this conclusion necessitates a full adjudicatory hearing to support a § 40 — 416 order. We see no reason why the General Sessions judge may not conduct an informal pre-trial hearing or inquiry, upon notification of the accused’s desire to waive indictment and trial by jury pursuant to T.C.A. § 40-118, as a basis for determining the applicability of §. 40-416 to the charge against the accused.

The problem posed by § 40 — 416 is closely analogous to the situation examined by the United States Supreme Court in Breed v. Jones, supra. There the seventeen year old respondent had been subjected to an adjudicative hearing in juvenile court, at which time he was found guilty of a criminal violation. His case was temporarily adjourned for a dispositional hearing, but on the latter date the juvenile judge ruled that the respondent was not amenable to rehabilitation through the facilities of the juvenile court and transferred his case to the criminal court for prosecution as an adult. In Breed the Supreme Court held that the Double Jeopardy Clause applies in juvenile cases and that the subsequent proceedings in criminal court thus violated the Fifth Amendment’s protection against double jeopardy. 421 U.S. at 528, 95 S.Ct. at 1785, 44 L.Ed.2d at 357. The Court suggested that in most cases its ruling would require “that the transfer decision be made prior to an adjudicatory hearing,” involving “evidence concerning the alleged offense (which) is considered relevant . . .” to the transfer order. Id., 421 U.S. at 536, 95 S.Ct. at 1789, 44 L.Ed.2d at 359. The Court stopped short of “prescrib(ing) criteria for, or the nature and quantum of evidence that must support, the (transfer) decision,” and said:

We require only that, whatever the relevant criteria, and whatever the evidence demanded, a State determine whether it wants to treat a juvenile within the juvenile court system before entering upon a proceeding that may result in an adjudication that he has violated a criminal law and in a substantial deprivation of liberty, rather than subject him to the expense, delay, strain and embarrassment of two such proceedings. Id., 421 U.S. at 537, 95 S.Ct. at 1790, 44 L.Ed.2d at 360.

We think the Breed rationale is equally persuasive when applied to transfer hearings under T.C.A. § 40-416. We therefore conclude that the decision to transfer a defendant by bindover order under § 40-416 must be made prior to the hearing on the merits in General Sessions Court in order to avoid conflict with the Double Jeopardy Clause.

The State’s second argument is that no new jeopardy arose as a result of the defendants’ bindover from General Sessions Court and trial in Criminal Court. According to this analysis jeopardy attached when the witnesses were sworn in the first hearing and continued until final disposition by the judge and jury in the second trial. The State cites Breed v. Jones in support of this rationale, but unfortunately for the State’s position, only the United States District Court which heard Breed adopted the concept of “continuing jeopardy” as applicable to the facts of the case. Jones v. Breed, 343 F.Supp. 690 (C.D.Cal.1972). Both the Ninth Circuit Court of Appeals and the United States Supreme Court specifically rejected this argument. Jones v. Breed, 497 F.2d 1160, 1166-67 (9th Cir. 1974); Breed v. Jones, supra, 421 U.S. at 533, 95 S.Ct. at 1787, 44 L.Ed.2d at 358. The Supreme Court noted that the concept, first articulated by Mr. Justice Holmes, had never béen adopted by a majority of the Court and was useful primarily as an analytical tool to explain why an accused who has secured the reversal of a conviction on appeal may be retried for the same offense. Id. That is not the case before us, and we conclude that the concept of “continuing jeopardy” has no application here.

III.

We hold that these defendants have been placed twice in jeopardy in violation of the Fifth Amendment to the federal constitution. The defendants did not waive their rights under the Double Jeopardy Clause, i. e. they neither instigated nor acceded to the abandonment of the first trial short of judgment. Nor does the case fall within the ambit of the “manifest necessity” doctrine of United States v. Perez, 22 U.S. 579, 6 L.Ed. 165 (1824), allowing retrial of a defendant after a mistrial where “there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” See also Etter v. State, 185 Tenn. 218, 205 S.W.2d 1, 3 (1947). Indeed, the public policy against successive trials for the same offense and in favor of judicial finality demands the result we reach here.

The remaining question involves the proper relief to be afforded these defendants. The State argues that the case should be remanded to the Trial Justice Court for reinstatement there. But this result would put the defendants in triple jeopardy and is clearly inappropriate.

We think that jeopardy having attached at the first trial, “[the defendants’] plea of double jeopardy is a conclusive bar to retrial.” Thomas v. Beasley, 491 F.2d 507, 508 (6th Cir.), cert. denied, 417 U.S. 955, 94 S.Ct. 3083, 41 L.Ed.2d 674 (1974). Accord, United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). The prohibition of the Double Jeopardy Clause is “not against being twice punished, but against being twice put in jeopardy.” Downum v. United States, supra, 372 U.S. at 736, 83 S.Ct. at 1034 quoting United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). The action of the magistrate in aborting the original trial prior to judgment thus precludes further prosecution against these defendants.

Accordingly, the judgment of the court below is vacated and the case is remanded for appropriate orders of the Criminal Court discharging these defendants with prejudice to the State.

DWYER and O’BRIEN, JJ., concur.

      .In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) the United States Supreme Court extended the Double Jeopardy Clause of the Fifth Amendment to the states through the Fourteenth Amendment’s Due Process Clause.

      .The original trial in this case actually occurred in the Anderson County Trial Justice Court, exercising General Sessions jurisdiction under the mandate of Private Acts of 1959, ch. 31, § 8.

      .See note 2, supra.


source: Caselaw Access Project

author: O’BRIEN, Judge.

license: Public Domain

text:
    Bill BLACK, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 14, 1976.
    Certiorari Denied by Supreme Court Oct. 4, 1976.
    R. O. Smith, Erwin, Walter A. Curtis, Elizabethton, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Lewis W. May, Dist. Atty. Gen., Mountain City, for appellee.
   O’BRIEN, Judge.

OPINION

Defendant was convicted of selling marijuana with punishment fixed at eleven (11) months and twenty-nine (29) days to be served in the County Jail.

On this appeal five assignments of error are made, the first four of which pertain to the preponderance and legal sufficiency of the evidence. Defendant says: (1) There was no evidence upon which a verdict of guilty could be found; (2) The evidence preponderates- against the verdict; (3) It was error to allow admission of a letter from the State toxicologist which stated that the substance he obtained (from the agent) was marijuana; (4) It was error to allow the opinion of the toxicologist to be expressed in court without him appearing personally to testify since this denied defendant the right of confrontation of the witness.

An undercover witness testified that she purchased 20.8 grams of marijuana from defendant on December 7th, 1973, for the sum of fifteen dollars ($15.00). She kept this substance in her possession until March 8th, 1974 when she transported it to the Kingsport Toxicology Laboratory where an analysis was performed. The substance was returned to her and retained in her possession until the date of trial. No toxicologist testified. Over defendant’s objection a letter over the signature of Thomas A. Smith, toxicologist, and William H. Anderson, Director, Kingsport Toxicology Laboratory, was admitted in evidence. This correspondence, addressed to the undercover agent, referred to Bill Black, Case No. 33, Laboratory No. 740509, stated that the analysis of items received from the agent consisted of, “one plastic bag containing one plastic bag which contains 20.8 grams of plant material which contains tetrahydro-cannabinols (marijuana) (Schedule VI).”

Defendant objected to the admission of the correspondence on the basis of hearsay, and for the reason that he was denied the right to cross-examine in regard to the analysis. The trial Judge sustained an objection when defense counsel endeavored to cross-examine the agent regarding the nature of the tests run on the substance submitted to the toxicologist.

The State argues that the report was admissible as a business record under the provisions of T.C.A. Sec. 24-714, or in the alternative, under the provisions of T.C.A. Sec. 59-1049 which provides for the admission of the results of a blood alcohol test under the Implied Consent Law applying to operation of motor vehicles in the State.

We conclude that neither position is tenable. The letter from the toxicologist was certainly not a record which would qualify under the provisions of the Uniform Business Records As Evidence Act in any manner whatsoever. Neither can it be fitted into the framework of the Implied Consent Law. There is no valid evidence in this record concerning the analysis of, or the actual quantity of tetrahydrocannabi-nols in, the substance which the undercover agent testified she purchased from defendant. Defendant was denied the right of confrontation and under the circumstances of this case must be granted a new trial.

Defendant says that the trial court erred in delivering a “Dynamite Charge” to the jury prior to their deliberations.

The objected to instructions, commonly referred to in this State as the “Allen-Simmons” charge is now proscribed under the authority of Kersey v. State, 525 S.W.2d 139 (Tenn.1975). The trial Judge did give the “Allen-Simmons” charge in his original instructions to the jury. No objection was made at the time the instructions were delivered. In Keene v. State, in an opinion of this court released in August, 1975, we affirmed the judgment on the same issue and a similar state of facts. On March 1st, 1976, the Supreme Court affirmed the judgment of this court in the Keene case, making the distinction that the objected to instructions, under the facts of the case, were likewise disapproved, but were not to be considered as reversible error under the circumstances. Since this case is reversed for possible retrial, we bring this to the trial Judge’s attention.

Reversed and remanded.

GALBREATH and RUSSELL, JJ., concur.


author: DWYER, Judge.

text:
    James C. McDONALD, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    June 16, 1976.
    Certiorari Denied by Supreme Court Aug. 23, 1976.
    Walker Gwinn, Memphis, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Joseph L. Patterson, Asst. Dist. Atty. Gen., Memphis, for defendant-in-error.
   OPINION

DWYER, Judge.

The questions presented in this appeal by the Public Defender’s Office of Shelby County from a conviction of murder in the second degree, T.C.A. 39-2403, with punishment of confinement for forty years go to the sufficiency of the evidence and the admission into evidence over objection the statement of the decedent. It is conceded that if the admission of the latter was proper, the evidence to support the conviction is sufficient.

The evidence accredited by the verdict of the jury reflects from our review that the plaintiff-in-error doused the decedent with kerosene and ignited that fluid on the early morning hours of April 21, 1974, at 205 Pauline, Apartment H, in the City of Memphis with resulting third degree burns to the body of decedent which ultimately resulted in his expiration on June 3, 1974.

The plaintiff-in-error did not testify but offered proof of his prior commitments to institutions because of his erratic mental behavior. There was rebuttal state proof by doctors that plaintiff-in-error was competent to stand trial.

The statement in question by the decedent was made to his sister and the attending doctor around noon on the event date naming the plaintiff-in-error as the one responsible for burning him. There was no error in allowing this statement into evidence over objection. The trial court held a full hearing on the matter out of the presence of the jury. At that hearing the doctor who treated him testified that in his opinion on the date in question the decedent’s chances of recovery from the burns was nil; that when the plaintiff-in-error asked him about his condition, he told him that he was probably going to die; that for there to be any chance at all, he had to be sent to the Brooke Army Hospital in San Antonio, Texas; that the decedent, Robert Earl Douglass, in response to the doctor’s question as to who burned him, told him “Cat Daddy did it”. The name “Cat Daddy” was an alias of the plaintiff-in-error. The sister of the decedent testified that she told her brother that he should not let someone kill him and get away with it. The decedent then told her it was “Cat Daddy”, after he first stated that he did not know who had done it.

We think the doctor’s telling the decedent he was probably going to die created a circumstance from which a reasonable inference could be drawn that the decedent was aware that death was impending. Anthony v. State, 19 Tenn. 265 (1835); Kilburn v. State, Tenn.Cr.App., 509 S.W.2d 237, 239 (1973); Beard v. State, Tenn.Cr.App., 485 S.W.2d 882, 885 (1972). The fact that death did not occur until several weeks later is not controlling. Crittendon v. State, 157 Tenn. 403, 415, 8 S.W.2d 371 (1928); Hawkins v. State, 220 Tenn. 383, 417 S.W.2d 774, 777 (1967). The fact that the doctor held out some hope if he were transferred to the burn unit of Brooke Army Hospital is also not controlling. This assignment is overruled.

Coupled with the dying declaration there is testimony that the decedent was seen running down the stairway at the apartment completely engulfed in flames and screaming for help. Two men were seen running away from the scene as this was happening. The victim fell into a flower bed and was doused by a tub of water thrown on him by a neighbor. There was testimony that the burned man and the plaintiff-in-error had been together that day drinking beer on the porch; that the porch glider they had been sitting in was charred and pieces of flesh and clothing were adhering to the metal swing. The doctor testified that decedent received third degree burns (most severe that a body can tolerate) on the extremities, buttocks, penis, abdomen, back and neck of his body and the burn penetrated to the muscle fascia.

The statement by the decedent plus the circumstance that the plaintiff-in-error was in reality known as “Cat Daddy” and was placed at the scene earlier provide the evidence sufficient to sustain the verdict. The assignment being overruled, the judgment of the trial court is affirmed.

O’BRIEN and DAUGHTREY, JJ„ concur.


author: RUSSELL, Judge.

text:
    Robert B. BEARD, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 21, 1976.
    Certiorari Denied by Supreme Court Oct. 18, 1976.

      Thomas N. Bateman, Clarksville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, John J. Hestle, Dist. Atty. Gen., Clarksville, for ap-pellee.
   OPINION

RUSSELL, Judge.

This is an appeal from the dismissal of Robert B. Beard’s petition seeking post-conviction relief from an adjudication of habitual criminality and resultant life sentence. An evidentiary hearing was held, and the evidence presented by stipulation.

The first question for review is whether or not there were two valid prior convictions to support the third (new) one for burglary at the 1972 trial which culminated in the finding that Beard was an habitual criminal as defined in T.C.A. § 40-2801. Four separate prior felony convictions were relied upon by the State, including the 1972 burglary case. A 1961 jail escape conviction, based upon a guilty plea entered without benefit of counsel, is conceded to be invalid. However, the only attack upon a 1966 burglary conviction and a 1969 armed robbery conviction is that their affirmance by this court upon direct appeal was not made the subject of a petition for certiorari to the Tennessee Supreme Court. Beard disclaims any desire for such further appellate review now, and maintains that the convictions are facially void simply because petitions for certiorari were not filed. Those convictions are not void, or even voidable, for lack of two tier review; but at most, given a following of the proper procedures and the facts to justify it, might still be reviewable by our Supreme Court. We overrule the attack upon the validity of the convictions supporting the adjudication of the habitual criminal status.

Next, Beard questions the validity of an order entered by the trial judge in conjunction with the 1972 proceeding, whereunder the sentence for the burglary conviction was ordered to run consecutively to that given for an assault to commit murder. This court addressed this exact question in the direct appeal and explicitly held it to be without merit. The question is previously determined per T.C.A. § 40-3812.

Finally, Beard erroneously contends that the habitual criminal statutes are unconstitutional. Pearson v. State, Tenn., 521 S.W.2d 225 (1975).

We affirm the dismissal of this petition. While the issues were poorly defined in the original wide-ranging petition, which grossly failed to comply with the mandatory provisions of T.C.A. § 40-3804, trial and appellate counsel and the learned trial judge (who filed an exemplary finding of fact and memorandum of law) brought the case into focus for review.

WALKER, P. J., and DAUGHERTY, J., concur.


author: WALKER, Presiding Judge.

text:
    Jerry MURPHY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 28, 1976.
    Certiorari Denied by Supreme Court Oct. 18, 1976.

      John S. Wilder, Sr., Somerville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, Preston Parks and Jon Kerry Blackwood, Asst. Dist. Attys. Gen., Somerville, for appellee.
   OPINION

WALKER, Presiding Judge.

Convicted of burglary in the second degree and sentenced to three to seven years in the penitentiary, Jerry Murphy, the appellant, contends the evidence is insufficient to sustain the conviction. We agree and reverse.

On February 28,1975, Minnie Bolden left her home in the Happy Hollow section near the business district of Somerville and went to the nearby launderette where she was employed. About 5:00 or 6:00 p. m. the appellant came in the launderette and urged several girls there to help Ms. Bolden clean the washer. She refused any assistance and the appellant left. When Ms. Bolden returned to her home an hour or an hour and a half later, she found the back door broken, the house ransacked and $850 taken. A suitcase had been taken out of the house but it was found in the back yard.

The launderette owner saw the appellant make several trips to the launderette but he saw nothing further although he was seated in his truck in front of the two-unit house in which Ms. Bolden lived.

Lillian Malone, who was selling hot dogs at a church across the street from the Bol-den home, testified she saw the appellant peep from behind the Bolden house that day and then run through the alley behind the house.

Linda Phillips, who was also selling hot dogs at the church, first said she did not see the appellant that day but then testified in substance to the same facts as Ms. Malone.

Other evidence showed that the house door had apparently been prized open but no tool was found. None of the four witnesses who saw the appellant near the scene said he had anything in his hands or any tool with him. The investigating officer was unsuccessful in his effort to take fingerprints.

Officers could not find the appellant for two or three months following the crime. He was arrested after he voluntarily returned to Fayette County.

The appellant did not testify or offer any evidence.

There is no evidence that the appellant entered the home or was seen in it or that any of the fruits of the crime were recovered from him. Although the witnesses saw him at the launderette and near the burglarized house, they also saw numerous other persons in that vicinity.

The state argues that running down the alley and the inability of officers to locate the appellant for more than two months constitutes flight which, along with other circumstances, is sufficient to support the conviction. It cites Sotka v. State, Tenn.Cr. App., 503 S.W.2d 212; Brown v. State, 4 Tenn.Cr.App. 381, 472 S.W.2d 230, and Craig v. State, 2 Tenn.Cr.App. 510, 455 S.W.2d 190. Each of those cases may be distinguished from the present case because in each one there was substantial evidence other than flight to connect the accused to the crime.

In Sotka there was evidence of marital discord that tended to show that the appellant shot his wife. In Brown the appellant admitted purchasing the stolen property and his flight was considered on the question of guilty knowledge. In Craig the appellant’s confession was admitted into evidence and he testified that he killed the deceased.

In Chandler v. State, 3 Tenn.Cr.App. 234, 460 S.W.2d 376 (1970), we sustained a third degree burglary conviction where the appellant fled from police when he was discovered at the scene of a burglary. In that case, however, the appellant’s fingerprint was found on the broken window of the premises. That fingerprint tied the appellant to the entry of the burglarized premises. We do not have similar evidence to connect this appellant.

Other than flight the only circumstance shown against the appellant is his presence at the scene of the crime. Neither presence nor flight, standing alone, is sufficient to convict. Underhill’s Criminal Evidence, Sixth Edition, Sec. 16. Taken together as evidence, appellant’s flight and presence still do not prove that he entered the premises. The evidence in this record preponderates against the verdict. State v. Crawford, 225 Tenn. 478, 470 S.W.2d 610.

Reversed and remanded for a new trial.

GALBREATH and RUSSELL, JJ., concur.


text:
    Bobby Len JONES, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    July 28, 1976.
    Certiorari Denied by Supreme Court Oct. 12, 1976.
    Monte D. Curry, Asst. Public Defender, Nashville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Harold B. McDonough, Jr., Asst. Dist. Atty. Gen., Nashville, for appellee.
   OPINION

RUSSELL, Judge.

This is an appeal by Bobby Len Jones from his conviction of armed .robbery and resultant penitentiary sentence of fifteen years. The legal sufficiency of the convicting evidence is not questioned, but two alleged errors are assigned.

The first questions the legality of the arrest and search of Jones. The main basis for this contention assumes a fact which is contrary to the actual testimony. It is argued that Jones’ car was stopped after a police broadcast announced the armed robbery of a certain motel and described the get-away car as a white and red 1968 to 1970 Buick or Pontiac. The arresting officer attempted to stop Jones, who was driving a white and red 1974 Ford. The robbery victim testified that he gave the police no auto description, other than the color of a late model car. All of the officers involved denied that the broadcast described the car specifically as a Buick or Pontiac. The basis for this argument on behalf of Jones is that the police report apparently reflected such a precise (and erroneous) description.

Based upon the testimony, an officer cruising about five miles from the robbery scene spotted Jones’ car about ten minutes after the robbery. It was traveling away from the direction of the crime, and was white over red. It was occupied by four people, while the broadcast described two robbers. Shortly after being spotted, the ear was turned off the main highway. The officer pursued it, and attempted to stop it by use of blue authority lights and a spotlight. This was unsuccessful. The officer added his siren, but still the car was not stopped. Shortly the vehicle entered an apartment complex. The officer followed, but apparently made no further attempt to force it to stop. When it was parked at an apartment building the officer required the four occupants to get out of the car. Backup officers had been summoned and arrived very quickly. A television set taken in the robbery was in plain view upon the car seat. Jones’ female accomplice ran from the scene, carrying her purse; but was caught after entering an apartment bathroom, and the two pistols used by Jones in the robbery were found in her purse. Money and a watch taken in the robbery were found on Jones’ person. All this is the evidence complained of.

Jones was identified as the robber by the victim. No evidence was presented by the defense.

We hold that the first officer acted legally in following Jones’ car, and in attempting to stop it; and, after the occupants refused to comply with the officer’s mandate to stop he was justified in following and arresting them when the opportunity presented itself. While it is well established that the legality of a search does not depend upon its fruitfulness, surely the reasonableness of this officer’s actions at this time and place and under these circumstances is fortified by the fact that he certainly caught the robbers. Our Supreme Court said, in Jones v. State, 161 Tenn. 370, 33 S.W.2d 59 (1930):

“The substance of these provisions is that an officer may lawfully proceed to arrest without a warrant any person when the officer has, with reasonable cause, been led to believe that the person has committed, is committing, or is about to commit a felony. It is essential to the protection of society that a wide discretion be vested in officers chosen to enforce our laws against felonies. It is impossible to define ‘reasonable cause’ in terms to fit all cases arising. Each case must stand on its own facts. A narrow construction would open the way for the escape of desperate criminals and the defeat of justice. One too liberal would lead to the harassment of the innocent. But the officer may not be required to wait for assurance, for evidence which would convict; when circumstances fairly point to a felony it is his duty to act, and act promptly.”

The other assignment of error complains that an “Allen” or “dynamite” charge was given by the trial judge with his general charge. The charge, in pertinent part, was:

“You will arrive at your verdict by agreement of all the members of the jury. The verdict should be that of each member of the jury and must not be arrived at by casting lots or by mere agreement among yourselves to accept the majority view. On the other hand, the Court would counsel each of you not to be stubborn or unbending in your attitude toward the case or any aspect thereof. While there is a difference of opinion in regard to any material matter, each of you should conscientiously and earnestly listen to the views and arguments of your fellow members with a disposition to be persuaded by them. Remember finally, however, the verdict must represent the belief and conviction of each individual juror.”

The leading case on this point is Kersey v. State, Tenn., 525 S.W.2d 139 (1975). While it outlawed the Allen charge, Kersey adopted the A.B.A. Standards Relating to Trial by Jury, Sec. 5.4, which includes:

“(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
(i) that in order to return a verdict, each juror must agree thereto;
(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.”

Our Supreme Court then proceeded to give the exact wording to be used in giving this charge, and added: “Strict adherence is expected and variations will not be permissible”.

Kersey was filed June 16, 1975. This trial commenced September 10, 1975. The trial judge should have used the exact wording promulgated by our Supreme Court, and the failure to do so was error.

We overrule the assignment, as it complains of an Allen charge. This was not such a charge. It was a pre-deliberation charge that conformed substantially with that approved and promulgated in Kersey, and the error in not exactly following the mandate of Kersey is here held to be harmless. We call attention, however, to the Supreme Court’s language that “variations will not be permissible”; and instruct the trial judge to use the language promulgated by the Supreme Court.

Affirmed.

GALBREATH, J., and TILLMAN GRANT, Special Judge, concur.


author: DAVIS, Commissioner.

text:
    Selwynn Barry GHOLSON, Appellant, v. The STATE of Texas, Appellee. Larry Joe ROSS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 51920 and 51921.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.

      Gerald M. Brown, Temple, James H. Kreimeyer, Belton, for appellant.
    Joe Carroll, Dist. Atty., Bob D. Odom, Troy C. Hurley, Asst. Dist. Attys., Belton, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeals are taken from convictions for capital murder. Appellants were tried in a joint trial following a change of venue from Bell County. Each appellant’s punishment was set at death.

On September 14, 1974, appellants Selwynn Barry Gholson and Larry Joe Ross entered the Walburg State Bank in Wal-burg. They ordered the bank’s vice-president, an employee, and a customer to lie down on the floor at gunpoint. About $3,000 was then taken. Before they left the bank, one of the two men shot each of the three victims in the head. All three survived and testified against the appellants at trial.

The bank’s vice-president was able to call the Williamson County Sheriff’s Office and give a rough description of the holdup men. Walter Ferguson told the Sheriff’s Department that he had seen the two men leave in a blue General Motors automobile. These descriptions were put out by radio to all Central Texas law enforcement units.

At approximately the same time as the robbery, off-duty Highway Patrolman Hollie Tull left his residence in a radio-equipped marked black and white highway patrol car. The Temple police dispatcher put out the description of the holdup men and received a radio transmission from Tull, which resulted in the dispatcher checking on license number BRT209. The dispatcher conversed with Tull four times and lost contact. Tull was subsequently found by his car shot to death, with six pistol wounds and a shotgun wound to the head.

The abandoned getaway car with license number BRT209, a blue Chevrolet, was found not far away. It was registered to appellant Ross’ father. A number of items linking appellants to the getaway car and to the scene of the murder were found. Two witnesses observed a fight between Tull and two black men, and the subsequent shooting at Tull’s car.

Appellant Gholson was captured in a field near Temple. Appellant Ross was arrested at his father’s home in Granger a week later. The murder of Tull is the gravamen of this prosecution.

Appellants urge that Art. 37.071, V.A.C.C.P. is unconstitutional (1) “in that imposition of the death penalty is a cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution,” (2) “in that its special issue procedure allows arbitrary and capricious imposition of the death penalty in violation of the due process clause of the Fourteenth Amendment to the United States Constitution,” and (3) that Art. 37.071, supra, is “unconstitutionally vague in violation of the due process clause of the Fourteenth Amendment. . . . ”

Appellants’ contention relative to the statute being violative of the Eighth Amendment was answered adversely to them in Jurek v. Texas, - U.S. -, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). See also Gregg v. Georgia, - U.S. -, 96 S.Ct. 2909, 49 L.Ed.2d 859.

Appellants’ claim that the special issue procedure set forth in Art. 37.071, supra, allows arbitrary and capricious imposition of the death penalty was likewise rejected by the United States Supreme Court in Jurek v. Texas, supra. See also Jurek v. State, Tex.Cr.App., 522 S.W.2d 934.

The contention of vagueness is directed to the second question asked the jury in accordance with Art. 37.071(b)(2), supra, “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” This argument was rejected by this Court in Jurek v. State, supra, and ultimately by the United States Supreme Court in Jurek v. Texas, supra. See also Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976).

Appellants contend that the trial court erred in admitting a notebook containing highly inflammatory writings over appellants’ objections for the reason it was not shown to have been made by appellants and for the further reason that the prejudicial nature of the notebook far outweighed its probative value.

Fingerprints of both appellants, along with unidentified prints, were found on the book. Inside the front cover appears “AUG. 74 BRO. J. ROSS.”

The notebook was recovered from the abandoned blue Chevrolet bearing license number BRT209, determined to have been registered to appellant Ross’ father.

Nine sheets in the notebook contain hand-printed statements. A few of the recitations are, “the streets run red with whitey’s blood,” “shoot whitey in the head until he is dead,” and “this is how I fell (sic) about the dog ass white honky fag ass punk type low life bastard devil swine shit ass white trash no good mother fucking white people. Kill white babys (sic) too all must die.” The latter statement was at the bottom of the first page beside “(The Black Assassins),” “(By Brother Orun Rashann Allah).” On still another page there appears:

“Thirteen stars on the origanal flag
“Thirteen devils from the demon’s bag
“Thirteen berries and thirteen leaves
“Thirten colonyies of land grabing theives
“And thers thirteen airrows in the eagels claw 67 corparations that wage the devil’s war
“Who’s Doing It For Us
“My People The Time Is Now!
“Ourun Rashann Allah”

Recitations relative to the “white devil” and the supremacy of the black man appear on other pages.

At the guilt stage of the trial, the notebook was admitted only for the purpose of showing that a book was found in the car in question bearing both appellants’ fingerprints. The court ordered that it not be shown to the jury. At the punishment stage of the trial the contents were admitted into evidence over appellants’ objections.

Pursuant to Art. 37.071(b)(1), (2), supra, the court submitted questions to the jury inquiring if they found from the evidence beyond a reasonable doubt (1) that the conduct of the appellants which caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; and (2) that there is a probability that the appellants would commit criminal acts of violence that would constitute a continuing threat to society.

Article 37.071(a), supra, provides in pertinent part that, “In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas.” See Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976).

In Jurek v. Texas, supra, the United States Supreme Court in discussing the questions asked the jury at the punishment stage of the trial under 37.071(a), supra, stated:

“What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.”

We find appellants’ reliance on Arnott v. State, Tex.Cr.App., 498 S.W.2d 166, to be misplaced. In Arnott, this Court held that a notebook containing what appeared to be records of narcotic transactions was improperly admitted at the guilt stage of the trial where the defendant was being tried for possession of heroin. This Court reasoned that the only inference to be drawn from the admission of the notebook was that appellant was dealing in narcotics and, finding no link between the notebook and the defendant, this Court concluded that the admission of same constituted reversible error. While a number of distinctions are readily discernible in the instant case and Arnott, we first observe that the notebook in the instant case was tied to appellants by their fingerprints.

The notebook in the instant case does not purport to be a personal communication by or to either of appellants. If the statements can be attributed to any person, it would appear that it would be “Ourun Rashann Allah.”

An extra-judicial statement or writing may be admitted as circumstantial evidence from which an inference may be drawn, and not for the truth of the matter stated therein, without violating the hearsay rule. Arnott v. State, supra; Phenix v. State, Tex.Cr.App., 488 S.W.2d 759; McCormick & Ray, Texas Law of Evidence, Sec. 781.

The complained-of exhibit recited intense statements of hatred toward the white race and advocated acts of violence toward the white man. The evidence reflected that the notebook had been in possession of appellants. Clearly, the evidence was not offered for the truth of the statements recited in the book. Art. 37.071, supra, provides, “. . . evidence may be presented as to any matter that the court deems relevant not secured “in violation of the Constitution of the United States or of the State of Texas.” In Livingston v. State, supra, it was noted that “such provision gives the court wide discretion in the evidence that may be offered.” We conclude that the court was not in error in deeming the exhibit to be relevant since we find that it was pertinent to the second question asked under Art. 37.071, supra, “(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”

Appellants contend that the court “erred in overruling appellants’ motion for mistrial following the State’s argument stating ‘God bless those officers who died in the line of duty like him, and their families.’ ”

The record reflects that the following occurred during the prosecutor’s argument:

“God bless Hollie Tull and his family. God bless those officers who died in the line of duty like him and their families.
“MR. KREIMEYER [defense counsel]: Your Honor, we are going to object to the other officers dying in the line of duty.
“THE COURT: Sustained.
“MR. KREIMEYER: We will ask that the jury be instructed to disregard it.
“THE COURT: The jury will please disregard anything about anything other than this particular case and specifically about other officers.
“MR. KREIMEYER: We move for a mistrial at this time.
“THE COURT: Overruled.
“MR. GREEN [prosecutor]: I will withdraw the argument, your honor. I will argue this case. God bless Hollie Tull and his family.”

In support of their contention that the court erred in overruling their motion for mistrial, appellants urge that there is little to distinguish the argument herein from that made by the prosecutor in Lopez v. State, Tex.Cr.App., 500 S.W.2d 844. In Lopez, the prosecutor argued, “I’m concerned about the open season that is coming on police officers. I believe the same week these officers were killed there were eleven killed in America.” In Lopez, this Court held that the court’s instruction to disregard did not overcome the prejudice and harm caused by the foregoing, coupled with another argument of the prosecutor that the defendants and their lawyers lied when they entered pleas of not guilty.

In Lopez, the prosecutor argued as a fact, unsupported by the record, that eleven officers were killed the same week. In the instant case, the argument generally refers to the fact that officers have been killed in the line of duty and asks God’s blessing upon them and their families. It is not a plea to punish these appellants to stop a wave of killing of police officers or to impose punishment for other similar crimes.

Normally, an instruction to disregard will be sufficient to remove the error in argument. Curtis v. State, Tex.Cr.App., 519 S.W.2d 883; Overton v. State, Tex.Cr.App., 490 S.W.2d 556. We find that the court’s instruction in the instant ease was sufficient to remove error in the prosecutor’s general statement about other officers having been killed.

Appellants contend that the court erred in not granting their motion for mistrial when the prosecutor argued:

“I don’t recall when the last person was electrocuted. I do know this that since the last person was there has been a hundred percent increase in crime.”

The record reflects that appellants’ objection to the argument as not being supported by'the record was sustained and pursuant to their request the jury was instructed to disregard.

The State responds by urging that the complained-of argument was in response to an argument by appellants that the death penalty was not a deterrent in that the members of the jury as concerned citizens who read newspapers and magazines probably did not know what crimes carried the death penalty before this case began and that people who committed crimes were less knowledgeable.

The State cites Cunningham v. State, Tex.Cr.App., 484 S.W.2d 906, for the proposition that an argument that crime was on the increase in the county is not an improper argument. The instant argument goes beyond an assertion that crime is on the increase.

White v. State, Tex.Cr.App., 492 S.W.2d 488, cited by appellants, is distinguishable. In White, this Court reversed where the prosecutor argued that sixty percent of crime in Dallas County could be attributed to narcotics. Unlike the instant case, the defendant’s objection to the argument was overruled and no instruction was given to disregard.

We find that the prosecutor exceeded the scope of proper response in replying to appellants’ argument; however, we cannot characterize such error as being so harmful as to require reversal in light of the court’s prompt action in sustaining the objection and instructing the jury to disregard. See Haywood v. State, Tex.Cr.App., 482 S.W.2d 855; Alexander v. State, Tex.Cr.App., 479 S.W.2d 44; Hughes v. State, Tex.Cr.App., 493 S.W.2d 166; Lucas v. State, Tex.Cr.App., 482 S.W.2d 236; Linzy v. State, Tex.Cr.App., 478 S.W.2d 950.

Appellants contend that the court erred in admitting over their objections the results of psychiatric examinations and opinions by Dr. John Holbrook that appellants were sociopaths who would continue to be a danger to society when such examination was made in the absence and without the knowledge of counsel.

Appellants’ position appears to be that an accused may not be deprived of counsel where counsel’s absence might derogate from the accused’s right to a fair trial, thereby resulting in denial of Sixth Amendment rights.

Dr. Holbrook, on voir dire examination by appellants, testified that he interviewed appellants in jail at the instance of the prosecution. Counsel for appellants were not advised of the interviews, nor were they present during them. Purposes listed for the interviews were to determine appellants’ sanity at the time of the offense and their competency to stand trial, and partly to do a “psychiatric evaluation.”

Dr. Holbrook’s testimony, offered by the State at the punishment stage of the trial, was that appellants were sociopaths and were likely to commit criminal acts of violence in the future.

In Stultz v. State, Tex.Cr.App., 500 S.W.2d 853, this Court said:

“A psychiatric examination is not an adversary proceeding. Its purpose is not to aid in the establishment of facts showing that an accused committed certain acts constituting a crime; rather, its sole purpose is to enable an expert to form an opinion as to an accused’s mental capacity to form a criminal intent.
Because of the intimate, personal and highly subjective nature of a psychiatric examination, the presence of a third party in a legal and non-medical capacity would severely limit the efficacy of the examination.”

Appellants argue that the instant case is distinguishable from Stultz because insanity at the time of the offense was not raised, nor was lack of competency to stand trial urged.

In Armstrong v. State, Tex.Cr.App., 502 S.W.2d 731, the defendant offered testimony at the punishment stage of the trial that he was capable of being rehabilitated. In rebuttal, the State presented the testimony of a psychiatrist that defendant was a sociopath and could not be rehabilitated. The interview upon which the psychiatrist relied for his conclusion was conducted without the presence of counsel or defendant having been advised of his right to counsel. As in the instant case, the defendant had not raised the defense of insanity. Relying on Stultz v. State, supra, and Blankenship v. State, Tex.Cr.App., 432 S.W.2d 945, this Court held such testimony to be admissible.

Thus, in Armstrong, testimony very similar to that in the instant case was held admissible for rebuttal purposes even though such testimony was obtained as the result of an interview without the presence of counsel, and where defendant had not raised the defense of insanity. We perceive no reason why higher constitutional standards should be imposed for admission of such testimony when the State is presenting its case-in-chief than is required for rebuttal testimony.

In United States v. Cohen, 530 F.2d 43 (5th Cir. 1976), it was stated,

“. . .we reject appellant’s claim of a constitutional right to have an attorney present at the psychiatric examination since that might defeat the purpose of the examination and since the examination is not the kind of critical stage at which assistance of counsel is needed or even useful. There would be no need for counsel to instruct the accused not to answer questions for fear of factual self-incrimination, for any such matter is subject to suppression; and interference with the examination by counsel on other grounds would be improper.”

In the instant case, it is not contended that the doctor testified to any incriminating statements made by appellants to him during the course of the interviews in violation of Art. 46.02, § 2(f)(4), V.A.C.C.P.

We conclude that appellants’ Sixth Amendment rights were not violated by the court permitting Dr. Holbrook to testify to conclusions drawn from examination of appellants made without the presence of counsel.

Appellant Gholson contends that the court erred in allowing over his objection Dr. James Grigson to testify as to his opinion based upon a psychiatric examination conducted on appellant when Dr. Grigson had been appointed by the court only to determine appellant’s competency to stand trial.

The record reflects that the court appointed Dr. Grigson to make an examination of appellant after a hearing on the State’s motion on November 5,1974. (Trial was in January and February, 1975.) Dr. Grigson’s conclusions were essentially the same voiced by Dr. Holbrook. We find our disposition of the last ground of error and our opinion in Livingston v. State, supra, to be dispositive of appellant’s contention.

Appellant Gholson contends that the court erred in submitting the offense of capital murder in its charge over his objection at the guilt stage of the trial in that the State had failed to prove that the deceased had probable cause to arrest appellant and therefore deceased was not acting in the lawful discharge of his duties as a peace officer.

The pertinent portion of the indictment alleged that appellant,

“. . . did then and there knowingly and intentionally cause the death of Hollie Tull, hereafter called deceased, by shooting him with a gun, and that the said deceased was a peace officer acting in the lawful discharge of an official duty and that the said Selwynn Barry Gholson then and there knew the deceased was a peace officer. . . .”

V.T.C.A. Penal Code, Sec. 19.03(a)(1), “Capital Murder,” provides,

“(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:
(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman; . . ..”

James Raabe, a Temple police officer, testified that on the day in question he was working as radio dispatcher and that he had received reports of the robbery which had occurred at the Walburg bank. In turn, Raabe transmitted such information over the Temple police radio which reflected that the suspects were two black men dressed in army fatigues and driving a blue General Motors car. Raabe then received a message over the radio which he recognized as coming from patrolman Tull and as a result of the call he checked license number BRT209. Raabe received four radio messages from Tull and in response to these communications he dispatched a Temple police unit to assist Tull.

A brief stop of a suspicious person in order to determine his identity or to maintain status quo momentarily while obtaining more information may be reasonable in light of facts known to the officer at the time. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Balli v. State, Tex.Cr.App., 530 S.W.2d 123; Hazel v. State, 534 S.W.2d 698; Wood v. State, Tex.Cr.App., 515 S.W.2d 300.

In light of the information relayed to Tull on the police radio, the officer was justified in stopping the appellants’ vehicle. The record does not reflect that Tull had done anything more than stop appellants for the purpose of investigating “possible criminal behavior” since the record is devoid of any evidence that the officer attempted to arrest appellants. See Terry v. Ohio, supra. In light of the foregoing, we find it unnecessary to reach the question of whether probable cause existed for arrest. We reject appellant’s contention that the evidence fails to reflect that the deceased officer was acting in the lawful discharge of his duties as a peace officer.

Appellant Ross contends that the court erred in admitting testimony of certain reputation witnesses.

A total of ten witnesses testified at the punishment stage of the trial that appellant Ross’ reputation as a peaceful and law-abiding citizen was bad. On appeal, he argues that the admission of the testimony of four of them constitutes reversible error.

As to all four, appellant argues that it was reversible error for the trial judge to refuse his request to voir dire these witnesses out of the presence of the jury. The trial judge granted permission to voir dire the witnesses before they testified in the jury’s presence, but appellant declined to voir dire the witnesses before the jury and relied on cross-examination to test their qualifications.

The trial judge should have granted appellant’s request for voir dire of the reputation witnesses outside the jury’s presence. See Curtis v. State, Tex.Cr.App., 519 S.W.2d 883; Gleffe v. State, Tex.Cr.App., 501 S.W.2d 672; Crawford v. State, Tex.Cr.App., 480 S.W.2d 724. However, such error is harmless where the witnesses are not shown to have been disqualified to testify. Curtis v. State, supra; Gleffe v. State, supra; Crawford v. State, supra.

After Wayne Schroeder testified that he was familiar with the reputation of Ross in the community in which he lives for being a peaceful and law-abiding citizen, he stated in response to the prosecutor’s question that his reputation was bad.

On cross and re-cross examination, the witness stated that he had not discussed anything “anyone else in the public hasn’t discussed since this had all come about.” In response to further questioning by appellant, Schroeder testified that he formed his opinion as the result of an incident that occurred “some year or so ago.” On re-direct, Schroeder testified that he had talked to people about Ross as well as having observed him.

After Mrs. Raymond Rister testified on direct that appellant’s reputation was bad, she stated on cross-examination that she was basing her opinion on personal experience. On re-direct, Mrs. Rister testified that she had discussed appellant’s reputation with other people in the community and that her opinion was based on both personal observations and “on discussion of his reputation with other people.” On recross, Mrs. Rister testified that she had rather testify from personal experience, “I wouldn’t want to testify on hearsay,” and concluded that her opinion had been formed on personal experience.

Mrs. R. T. Holubec, after stating on cross-examination that her opinion was based on personal observation, testified on re-direct examination that she had heard other people discuss the reputation of appellant and, based upon that, appellant’s reputation was bad. On re-cross, Mrs. Holubec stated that she formed her opinion based on her own personal observations.

Wesley Duncan, the last of the four witnesses whose reputation testimony appellant attacks, testified that he was familiar with appellant’s reputation in the community, and it was bad. On cross-examination, the witness stated that he formed his opinion by seeing appellant in the community, “ . . .1 would say most of it would be drawing from other people. In other words how they treated him.” The witness further stated, “ . . . not just my personal but a general feeling,” the way Duncan and appellant treated each other, and “the way students treated him” formed the basis for the opinion.

Undoubtedly, the witnesses were confused by counsel for appellant and the State phrasing questions as to how the witnesses’ “opinions” of Ross were formed. After having determined that the witness knew the reputation of appellant in the community, the proper question then is, “What is that reputation?” and not an inquiry relative to the opinion of the witness.

All of the challenged witnesses except Duncan testified that they had heard appellant’s reputation discussed in the community, and Duncan testified in terms of the “general feeling” toward appellant. The testimony of Mrs. Holubec was withdrawn from the consideration of the jury by the court.

In Lewis v. State, Tex.Cr.App., 503 S.W.2d 806, the witness testified that he knew the defendant’s reputation for being a peaceful and law-abiding citizen and it was bad. On cross-examination, the witness was asked if he were testifying from his personal knowledge and he responded, “Well, my personal knowledge and what I hear, what the general feeling is.” (Emphasis supplied) The Court held the witness was qualified.

While all of the challenged witnesses in the instant case appear to have vacillated from basing their “opinion” upon what they had heard discussed and the “general feeling” to a matter of “opinion” based on personal knowledge, we cannot conclude that the witnesses were shown to have been disqualified. Further, the testimony that appellant’s reputation in the community was bad was overwhelming and uncontro-verted. Error, if any, in the admission of the complained-of testimony was not so harmful as to require reversal.

The judgments are affirmed.

Opinion approved by the Court.

ROBERTS, J., concurs in the results.


author: ONION, Presiding Judge. GUPTON, Judge DOUGLAS, Judge

text:
    Darrell Craig WESTER, Appellant, v. The STATE of Texas, Appellee.
    No. 52542.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.

      Thomas P. Roebuck, Jr., Port Arthur, for appellant.
    Tom Hanna, Dist. Atty. and Paul E. Ña-man, Asst. Crim. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal is from an order revoking probation.

On original submission the appeal was dismissed for lack of notice of appeal. A supplemental transcript reflects that notice of appeal was timely given. The appeal is reinstated.

The question presented is whether a trial judge following a revocation hearing may continue a defendant on probation (although there is an adequate basis for revocation) and then subsequently upon report of another probationary violation revoke probation without motion by the State or a hearing basing the revocation upon the ground shown at the earlier hearing.

The record reflects that on January 22, 1975, the appellant entered a plea of guilty to forgery of a credit card sales slip and punishment was assessed at seven (7) years. Imposition of sentence was suspended and the appellant placed on probation subject to certain probationary conditions, including

“a. Commit no offense against the laws of this State or any other State or the United States.”

On July 10, 1975, a motion to revoke probation was filed. On August 21, 1975, a first amended (a three count) motion to revoke was filed. The first count alleged appellant had violated his probation

“1) By committing the offense of unlawfully carrying weapons, in that on or about June 25,1975, in Jefferson County, Texas, Darrell Craig Wester did then and there knowingly and intentionally carry on and about his person an illegal knife, namely: a knife with a blade over 5⅛ inches long, against the peace and dignity of the State.”

On August 27, 1975, a hearing was conducted on such motion. The record reflects that the court informed the appellant of the first count or ground of the motion and inquired, “is that true or untrue.”

“DEFENDANT: Yes, sir.
“THE COURT: True?
“DEFENDANT: Yes, sir.”

The State then abandoned the other two counts in the revocation motion and without hearing evidence the court found “as a fact that the allegation contained in Ground One is true.” The State recommended the appellant be continued on probation. The court then stated: “The probation granted will not be revoked and defendant will be continued on probation. . . ” The terms of probation were amended. On the order amending the probationary conditions are found the words “No Reduction if Revoked” and “Automatic Revocation if any other Violation.”

The docket sheet entry on September 5, 1975, reflects, “Based on Allegations of New Theft, Capias to Issue Instanter, Probation Revoked. Def. to be Sentenced Upon Arrest. . . . ” Such entry was signed by the trial judge.

On September 22,1975, the appellant was brought to court, where the trial judge noted that appellant had been “continued” on probation on August 27, 1975. The record then reflects:

“The Court has just received information from the Probation Department, indicating Mr. Wester was involved in an attempted burglary on September first, nineteen-seventy-five.
“Has Mr. Hawthorn explained this to you, Mr. Wester?
“MR. WESTER: Yes, sir.
“THE COURT: Do you recall what happened on August twenty-seventh, when you were in here and everybody asked that you be given another chance in addition to the chances that you had before?
“MR. WESTER: Yes, sir.
“THE COURT: Probation granted in this case is revoked, and the defendant is sentenced to seven years in the penitentiary with credit for your jail time.”

The docket sheet entry on the same date reflects, “Probation having been revoked Sept. 5,1975, defendant duly sentenced to 7 years pen. credit for jail time of 1 month and 10 days.” It was signed by the trial judge.

The written order revoking probation filed September 25, 1975, reflects that the basis of the revocation was the unlawfully carrying a knife, at which time appellant had been continued on probation.

It is clear that after appellant was continued on probation there was no further motion to revoke filed nor was there an additional evidentiary hearing.

It is well established that the fact of an arrest, standing alone, is not sufficient to support a revocation of probation based on a claim that probationer has violated a penal statute contrary to the conditions of his probation, and the mere fact that a formal complaint has also been filed does not change the rule. Rutledge v. State, 468 S.W.2d 802 (Tex.Cr.App.1971); Spencer v. State, 503 S.W.2d 557 (Tex.Cr.App.1974).

Clearly the court could not have properly revoked upon report of the commission of a new offense and probationer’s arrest.

Article 42.12, § 8, Vernon’s Ann.C.C.P., provides for the issuance of warrant and for the arrest of a probationer for violation of probationary conditions. After arrest, it provides in part:

“Thereupon, the court shall cause the defendant to be brought before it and after a hearing without a jury, may either continue or revoke the probation and, if probation is revoked, shall proceed to dispose of the case as if there had been no probation.” (Emphasis Supplied.)

It is clear from the statute that upon a revocation hearing the discretion to either continue or revoke rests in the discretion of the trial judge. Wise v. State, 477 S.W.2d 578 (Tex.Cr.App.1972); Soliz v. State, 171 Tex.Cr.R. 376, 350 S.W.2d 566 (1961); Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59 (1955).

This discretion is not unlike the discretion granted the trial court in deciding whether to grant probation (when that issue is presented to the court rather than a jury). See Article 42.12, § 3, Vernon’s Ann. C.C.P. The granting or refusing of probation in such cases lies within the discretion of the trial judge. See, e. g., Watson v. State, 418 S.W.2d 822 (Tex.Cr.App.1967); Redd v. State, 438 S.W.2d 565 (Tex.Cr.App.1969); Kerry v. State, 452 S.W.2d 480 (Tex.Cr.App.1970); Trautschold v. State, 466 S.W.2d 586 (Tex.Cr.App.1971); McNeese v. State, 468 S.W.2d 800 (Tex.Cr.App.1971); Flores v. State, 487 S.W.2d 122 (Tex.Cr.App.1972); Kirven v. State, 492 S.W.2d 468 (Tex.Cr.App.1973); Lee v. State, 516 S.W.2d 151 (Tex.Cr.App.1974); Trevino v. State, 519 S.W.2d 864 (Tex.Cr.App.1975).

However, when probation has once been granted by the trial court, this court has repeatedly held probation should not be arbitrarily withdrawn by the trial court and the trial court is not authorized to revoke without having found that the probationer has violated a condition of his probation after a hearing in accordance with Article 42.12, § 8, Vernon’s Ann.C.C.P. See Wozencraft v. State, 388 S.W.2d 426 (Tex.Cr.App.1965); Campbell v. State, 456 S.W.2d 918, 922 (Tex.Cr.App.1970); Jackson v. State, 464 S.W.2d 153 (Tex.Cr.App.1971). See also United States v. Taylor, 449 F.2d 117 (9th Cir. 1971). And the burden of proof in revocation proceedings to show a violation of a probationary condition is upon the State. See, e. g., Zane v. State, 420 S.W.2d 953 (Tex.Cr.App.1967); Hulsey v. State, 447 S.W.2d 165 (Tex.Cr.App.1969); Perry v. State, 459 S.W.2d 865 (Tex.Cr.App.1970); Campbell v. State, supra, footnote # 1, although that proof is only by a preponderance of the evidence. Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1974). Cf. Kelly v. State, 483 S.W.2d 467 (Tex.Cr.App.1972).

Likewise, it follows that when a revocation proceeding has been had and the defendant continued on probation in the discretion of the court (although there was an adequate basis for revocation demonstrated at the hearing), the continuation cannot subsequently be arbitrarily withdrawn at the whim of the trial court or upon mere fact of an arrest. To hold otherwise would violate due process, due course of the law of the land and fundamental fairness. The record here clearly supports the fact that the trial judge automatically revoked upon learning of a new arrest and erred in so doing.

We cannot conclude that the attempt in the formal revocation order to base the revocation on appellant’s plea of “true” at the hearing where he was continued on probation calls for a different result.

The State relies upon Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974), and Bass v. State, 501 S.W.2d 643 (Tex.Cr.App.1973). Both of these cases are somewhat similar to the instant case, but are distinguishable.

In Sappington the court heard evidence at a revocation hearing on March 1, 1973, that the defendant had committed a burglary in December, 1972, in violation of his probationary conditions. At the conclusion of the hearing the court made no immediate ruling. An examination of the record in Sappington reflects the statement of facts is silent as to any ruling, and there was no docket entry or written order entered concerning the court’s ruling. The defendant had requested the opportunity to undergo treatment with the United States Public Health Service under the Narcotic Addict Rehabilitation Act, 42 U.S.C. § 3413. Apparently because of this request no ruling was made. On June 4, 1973, the court entered a written order revoking probation for the violation (burglary) shown at the March 1st hearing. Sappington asserted the court entered such order because of his arrest on June 2, 1973, on a narcotics charge. There is, however, nothing in the Sappington record to show that the court had knowledge of the June 2nd arrest or if it had, had acted to revoke on the basis of that arrest. In the instant case, the court made a ruling and actually continued the appellant on probation, modifying conditions, and subsequently revoked upon learning of the latter arrest.

In Bass v. State, supra, the defendant was placed on probation in 1966 for seven years for theft of filed papers. On February 9, 1970, the court conducted a hearing on revocation motion charging him with the commission of misdemeanor embezzlement. At the conclusion of the hearing the court stated “on the record” before it the probation would be continued. Over two years later, on February 18, 1972, the court considered a subsequently filed motion charging the commission of the same misdemean- or embezzlement as alleged in the earlier motion. At the hearing on such motion the State introduced the evidence from the earlier revocation hearing and, in addition, introduced the information, judgment, sentence and mandate of affirmance relating to the defendant’s conviction for misdemeanor embezzlement. Thereafter, the court revoked probation. Thus in Bass it appears that the court was not satisfied that a probationary violation had been shown at the first hearing and continued the defendant on probation. After an additional motion had been filed and a hearing had which showed the finality of the embezzlement conviction, the court revoked. These facts distinguish Bass from the instant case since there was another revocation motion and hearing.

The judgment is reversed and cause remanded.

GUPTON, Judge

(dissenting).

I cannot agree that Sappington v. State, 508 S.W.2d 840, and Bass v. State, 501 S.W.2d 643, are distinguishable from the instant case.

In Sappington, supra, probationer raised the question of denial of an evidentiary hearing on the charge which resulted in revocation of probation. Probationer was found to have violated the terms of his probation by commission of burglary. Probation was revoked three months later, after probationer had been arrested again. Probationer urged that the arrest, not the commission of burglary, precipitated revocation of his probation. This Court, in affirming the judgment, found that the record clearly revealed the revocation was based on commission of burglary as shown in the probation revocation hearing, not on the subsequent arrest.

The evidence in the ease at bar reflects the court’s revocation order rests on a finding that appellant did not follow the terms and conditions of his probation, although the decision as to when to effectuate that order was based on information which standing alone would not have supported the revocation order.

In the instant case, as in Sappington, the record shows appellant violated the terms and conditions of probation. Appellant concedes the August 27 proceeding complied with all constitutional requirements and there would have been no abuse of discretion had the trial court revoked appellant’s probation at that time. I cannot agree with appellant’s position that the court must revoke probation immediately upon finding that the conditions of probation have been violated and may not subsequently revoke probation based on that finding. A hearing upon a motion to revoke probation is addressed to the trial court’s discretion in determining whether the probation shall be revoked or continued.

The majority opinion distinguishes Bass, supra, on the basis that another motion to revoke probation was filed and another hearing was held. However, those events occurred two years after the original motion to revoke and hearing. To require the trial court in the instant case to entertain another motion to revoke and to conduct another hearing on the same allegation heard by the same judge the previous month would be to mandate a needlessly duplicitous act.

Art. 42.12, Sec. 6, V.A.C.C.P., authorizes the trial court to modify or alter the conditions of probation at any time during the period of probation. The court’s action modifying the conditions of appellant’s probation on August 27 did not nullify appellant’s plea of true to the State’s motion to revoke and the court’s finding that appellant violated the terms of his probation. I would hold the court did not abuse its discretion in revoking appellant’s probation and the court was not required to entertain another motion to revoke probation and conduct another hearing.

The judgment should be affirmed.

DOUGLAS, Judge

(dissenting).

I concur in the opinion by Judge Gupton on the basis of Sappington v. State, 508 S.W.2d 840 (Tex.Cr.App.1974).

The judgment should be affirmed.

      . In Mitchell v. State, 482 S.W.2d 221, 223 (Tex.Cr.App.1972), this court noted it had never held that it was mandatory to hear evidence at a revocation rehearing where the defendant states to the court that the allegations of the motion to revoke are “true” and this is particularly true where the defendant is represented by counsel, has been served with a copy of the motion to revoke and understands its allegations. This court observed though that it was far safer practice to hear evidence regardless of the plea as many a later question may be avoided.

      . The court altered the conditions of probation and imposed a new probationary condition that the appellant serve 30 days in jail. See Article 42.12, §§ 6 and 6b(a). The court gave appellant credit for the time he served pending the revocation hearing. It appears the court also eliminated the requirement that the appellant report monthly to the probation officer, apparently because there was also a condition that he report weekly.

      . See Article I, § 19, Texas Constitution.

      . The dissent in that case was because it followed Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1973), in holding that part of Section 6.01 of the Controlled Substances Act, Article 725f, V.A.P.C., Acts 1973, to be unconstitutional and this writer did not agree.


author: GUPTON, Judge.

text:
    Ex parte Frank W. LOZANO.
    No. 52717.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.
    David R. Bires and Thomas M. Whit-worth, Houston, for appellant.

      Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GUPTON, Judge.

This is a post conviction habeas corpus proceeding under Art. 11.07, V.A.C.C.P. Petitioner alleges he was the subject of an illegal wiretap conducted by the Houston Police Department. He further contends that information obtained as the result of the wiretap led to his arrest and was a constitutionally impermissible seizure.

Initially, the trial court held an evidentia-ry hearing at which Anthony Zavala, a former Houston Police Officer, testified for petitioner that a wiretap had been placed on petitioner’s phone and had “paid off”. The State’s rebuttal witness, Officer E. D. O’Bryant, testified that he and his now deceased partner obtained the information leading to'petitioner’s arrest from an informant. He denied any knowledge of a wiretap on petitioner’s phone during the time period in issue. It was stipulated that the district attorney who tried the case would testify he had no knowledge of any wiretapping. There was neither stipulation nor testimony concerning possible federal authorization for an electronic surveillance. Accordingly, this application for writ of ha-beas corpus was returned to the trial court for an additional hearing to determine if a proper electronic surveillance was authorized by any state or federal agency.

The trial court held a second evidentiary hearing in which it was stipulated that the United States Attorney’s Office did not obtain or participate in obtaining a legal wiretap. The trial judge then found as a matter of fact “that there was no authorization to conduct an electronic surveillance by any agency, either state or federal . . .”

We will now consider the merits of petitioner’s claim. Petitioner took the stand at the initial habeas corpus proceeding and indicated he had possession of the heroin. (Petitioner was convicted for possession of heroin.) The State contends that this subsequent admission precludes complaint about the legality of the search, relying on Stein v. State, Tex.Cr.App., 514 S.W.2d 927. We do not agree. The defendant in Stein admitted on the stand that the police found marihuana in his van, making it unnecessary for this Court to consider the defendant’s contention that the seized marihuana was a product of an illegal search. Stein was a direct appeal from the trial on the merits, thereby distinguishing it from the instant collateral attack. It is not the purpose of a habeas corpus proceeding to determine guilt or innocence; therefore, although petitioner’s statement would be a judicial admission for any later proceeding, it does not serve to waive error in the event petitioner’s arrest is found to be the result of an improper search.

This Court is not bound by the findings of the trial court in a habeas corpus proceeding. Ex parte Bagley, Tex.Cr.App., 509 S.W.2d 332; Ex parte Lemay, Tex.Cr.App., 525 S.W.2d 1. Therefore it is necessary to review the record to determine if there is any evidence to support the trial judge’s recommendation. Ex parte Young, Tex.Cr.App., 479 S.W.2d 45. There was conflicting testimony from the two key witnesses at the evidentiary hearing:

Former Houston Police Officer Zavala testified that a surveillance unit was maintained in an apartment a few blocks from petitioner’s home. He stated that he saw a receiver and recorder in the apartment, although he did not see the electronic transmitter [which is typically installed at some point along the telephone line], nor did he personally install the device. Zavala further stated that the surveillance unit was in operation “. . . at least three days, because I was there two or three times.” Zavala testified that he personally heard information that was received from the electronic device. He was informed by fellow officers in the apartment “that is Frank’s [petitioner’s] voice.” Although he was unable to recall the precise conversation he overheard, Zavala testified, “. I don’t remember the exact words, but in a general way that Lozano was waiting for a shipment and he had no stuff there.” After petitioner’s arrest, Zavala testified that he had conversations with Officer O’Bryant concerning the results of the surveillance:

“Well, I can’t recall any specific words, this is after the arrest, things to the effect that ‘it paid off’, ‘we waited it out’, ‘it finally went down’, ‘we finally got him.’
. all indications to me were that yes, it came off the wiretap.”

Zavala stated that these conversations indicated to him that the arresting officers obtained their information from the wiretap, even though “. . .we never used the term T got the information from a wiretap.’ ” He further testified that he and the arresting officers had never discussed whether there was an informant in petitioner’s case.

Officer E. D. O’Bryant’s testimony directly contradicts testimony given by Zavala. O’Bryant and his now deceased partner [Huerta] were the arresting officers. At the evidentiary hearing, he denied any knowledge of wiretapping:

“Q [PETITIONER’S COUNSEL] All right sir, now, with respect to the time from February 18,1971, and the period of two (2) or three (3) days in advance of that particular date, is it not a fact that you did maintain a surveillance which contained in it receiving equipment which would receive transmissions from the telephone of Frank Lozano?
A No sir, it is not.
Q Is it your testimony that you did not employ wiretapping in this case?
A Yes, sir, it sure is.
Q Have you ever seen a receiver that is used in receiving transmissions that'are the result of electronic surveillance?
A I don’t know.”

In addition to denying any knowledge of a wiretap, O’Bryant testified that an informant was the source of the information leading to petitioner’s arrest. At the evi-dentiary hearing O’Bryant stated that the informant “was Officer Huerta’s original informant . . . but I had talked to him some time when Officer Huerta wasn’t in pocket or something.”

Petitioner attempts to impeach O’Bryant’s testimony in his brief by saying that this testimony concerning which officer originated the informant contradicts his earlier testimony and that given by Officer Huerta at the trial on the merits. Petitioner asserts that during cross examination at the pretrial motion to suppress hearing Officer Huerta testified:

“Q Had you ever used this informer before?
A No sir, this was Officer O’Bryant’s informer.”

Officer O’Bryant gave similar testimony at the same pretrial hearing:

“Q Officer, had you ever received information from this particular informant before?
A Yes sir.
Q On few or many occasions?
A Quite a few times.”

Unfortunately, the transcription of that previous hearing was not introduced into evidence and is not in the record before this Court. Since the record was not introduced, these arguments made in petitioner’s brief cannot be considered for impeachment. In the instant evidentiary hearing, the trial court had before it the conflicting testimony of Zavala and O’Bryant. The court resolved this conflict against petitioner. There was evidence upon which the trial court could base its finding of no wiretap. Petitioner’s first two grounds of error are overruled.

There was no corroboration of O’Bryant’s assertion that his information was not the result of a wiretap but that it came through an informant. For this reason, petitioner argues that considerations of fundamental fairness require that the informant’s identity be disclosed. We do not agree.

The test for disclosure of an informant’s identity ordinarily involves a determination of whether:

“[T]he informer participated in the offense, was present at the time, or was otherwise shown to be a material witness to the transaction or as to whether appellant knowingly committed the act charged.” Barber v. State, Tex.Cr.App., 511 S.W.2d 937.

Unless one of these factors is shown, the informer’s identity need not be disclosed. Enriquez v. State, Tex.Cr.App., 501 S.W.2d 117; Bueno v. State, Tex.Cr.App., 501 S.W.2d 339. None of these factors were present in the instant case:

“Q [PETITIONER’S ATTORNEY] . What is the name of that informant?
[DISTRICT ATTORNEY]: I will object to that, your Honor. ■
THE COURT: Was he present at the time of the arrest?
A [OFFICER O’BRYANT] No sir.
THE COURT: Sustained.
[PETITIONER’S ATTORNEY]: Your Honor, at this time we would move for disclosure of the informant’s identity on the basis that although he was not present at the scene of the arrest, the crust [sic] of this hearing is whether or not the information that lead to the arrest of Frank Lozano was derived from an informant or whether it was actually the result of information secured by illegal electronic surveillance.
THE COURT: That is overruled.
[PETITIONER’S ATTORNEY]: There has been testimony to the effect that in fact there was a wiretap used with regard to securing this information upon which Mr. Lozano was arrested and we would state that this being an ultimate issue in this hearing that we would be entitled to have the identity of this informant under the circumstances.
[DISTRICT ATTORNEY]: We will ask that that be overruled.
THE COURT: Let me ask you, the last portion of the record with which you refreshed the witness’ memory, does that indicate that he was present and saw it or anything of that nature?
[PETITIONER’S ATTORNEY]: No, it does not.
THE COURT: All right, it is overruled.”

O’Bryant testified that he did not know at the time of the evidentiary hearing or at the time of the trial on the merits whether or not his informant’s information was based on personal knowledge.

Roviaro v. U. S., 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), discussed the scope of the informer’s privilege and emphasized the need for balancing opposing interests. Appellant relies on United States v. Freund, 5 Cir., 525 F.2d 873, in which the court ordered an in camera hearing to accommodate the conflicting interests found in cases of informer privilege. Although not binding on this Court, Freund is distinguishable from the instant fact situation. Freund concerned the issue of probable cause for a stop and search. There the Fifth Circuit noted that it did not involve the ordinary tipster situation and characterized the informant as “an observer or material witness who could shed light on the events immediately preceding . . .” There is nothing in the record before us to indicate that the instant case involved an informer-witness situation. In fact, O’Bryant testified at both the evidentiary hearing and the trial on the merits that he did not know the source of his informant’s information.

Petitioner’s interests have been adequately protected and we decline to order the disclosure of the informant’s identity.

The application for writ of habeas corpus is hereby denied.


author: DOUGLAS, Judge.

text:
    Jackie Clinton BARBER, Appellant, v. The STATE of Texas, Appellee.
    No. 51970.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1976.
    Michael J. Whitten, Denton, for appellant.
    John Lawhon, Dist. Atty., Denton, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of aggravated assault. Punishment was assessed by the jury at seven years. A motion for new trial was overruled. Notice of appeal was given January 24, 1975.

A hearing on the question of the indigen-cy was held on March 5, 1975. The evidence adduced at this hearing is before the Court. Barber testified that he was married and had been married for a period of five years and that he and his wife had one child and that he paid support for one child by a previous marriage. He related that he was an air conditioning and heating service man working on an independent contract basis for Simmons Air Conditioning in Den-ton. The air conditioning repair business had been very bad for several months and in the last ninety days before the hearing the maximum number of hours he had been able to work in any given one week period was fifteen. He owned no real property and the personal property owned by both him and his wife consisted of a 1973 Datsun pickup and a 1968 Ford station wagon which were mortgaged for most, if not all, of their value. He did not know the value of their household furniture. The only other personal property owned by appellant consisted of his clothes and a few other non-valuables.

His normal and necessary monthly expenditures exceeded his monthly income and that of his wife. He related that he owed his retained counsel approximately $1700 for the trial of this case on the merits and that he had not retained his trial counsel for representation on appeal because of his inability to pay for the cost of counsel and a statement of facts. There was no way to pay the approximate $1500 for the transcription of the court reporter’s notes or to pay an attorney on appeal. He had tried to find work that would pay more than his present income but had been unable to do so. Another district judge had ordered him to pay on back child support a part of a refund in the amount of $1056 due him from the Internal Revenue Service. His other debts would consume any balance left over from the refund after paying the child support. He had been unable to work full time since September, 1974; he had looked for other work and had been unable to find any suitable employment and his wife worked at an hourly wage and her income was insufficient to pay all of the family’s necessary monthly obligations. He had the following debts and monthly obligations: attorney’s fee, $1700; Flow Memorial Hospital, $500; debt to Charles Barber, $100; doctor bill, $85; child support, $80; house rent, $75; car payment, $50; truck payment, $83; telephone bill, $15; utilities, $40 to $50; an installment payment to Pierce’s Gift Shop, $20; insurance, $55; food, $120; gasoline, clothes and miscellaneous expenses, $100; child care while his wife worked, $60.

He was free on a $15,000 appeal bond which had been gratuitously signed by two uncles and a cousin and had these individuals not signed this bond he would not have been able to be free because he would not have the funds to pay for the premium on an appeal bond.

From the record it appears that appellant does not have funds of his own to pay for the transcription of the court reporter’s notes or counsel to represent him on appeal.

In Conrad v. State, 537 S.W.2d 755 (Tex.Cr.App.1976), this Court recognized the fact that trial judges are often faced with questions of indigency after bail has been made and after an attorney has been paid a fee. We noted that even though there had been retained counsel at the trial, this did not bind counsel to furnish a record at his own expense or to handle the appeal without a fee. The question of indigency for appeal purposes is to be determined at the time of the appeal and not at the time of the trial. In Conrad, we discussed the holdings of the United States Supreme Court in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), as well as this Court’s holding in Simmons v. State, 511 S.W.2d 308 (Tex.Cr.App.1974).

There are no standards set out for the guidance of trial judges in determining the actual indigency of a defendant for purposes of appeal. See Article 40.09, Section 5, V.A.C.C.P. Each case must be decided upon its facts.

From this record the appeal must be abated so that the transcription of the court reporter’s notes may be made available to appellant as an indigent and counsel may be appointed for the appeal unless further facts are developed to show that he is not indigent. If there is further evidence sufficient to show that Barber is not indigent, it should be furnished this Court for review before a record and an attorney are denied. After the approval of the record, the provisions of Article 40.09, supra, will apply.

Accordingly, the appeal is abated.