author: DOUGLAS, Judge. PHILLIPS, Judge,

text:
    Silton Lee WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 53102.
    Court of Criminal Appeals of Texas.
    April 27, 1977.

      William C. Meyer, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Sam Adamo, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Silton Lee Williams appeals from his conviction for the offense of murder. Trial was before the court and punishment was assessed at ten years.

In his sole ground of error, he contends that the trial court erred in failing to grant his motion for new trial based upon alleged newly discovered evidence.

On February 24, 1975, the judge found Williams guilty and assessed his punishment. The ten days for the filing of a motion for new trial was waived and Williams stated that he wished to be sentenced immediately. On March 4, 1975, through newly obtained counsel, he filed a motion for new trial.

Appellant testified that prior to the date of the instant offense he and his wife had had frequent marital difficulties. He stated that at approximately 2:30 or 3:00 p. m. on the date of the offense he had gone to his sister-in-law’s house to speak to his wife. She had been staying there with their five children since their most recent separation. He made two trips to get the children, and when he returned she again refused to let him have the children and an argument ensued. As he started to leave, she stepped in front of his car on the passenger side. He stopped the car, got out and, as he was walking around the rear to the front, she fired a shot at him. Williams stated that he returned the fire and as she was lying on her side he kicked the gun out of her hand. Three of the four shots fired were fired into her back. He had his aunt call the police and was later arrested at his residence. When officers arrived he said, “The gun is in my pocket.”

The motion for new trial was filed after the date of sentencing and should not have been considered by the trial court. Roberts v. State, 493 S.W.2d 849 (Tex.Cr.App.1973). The record contains no motion to set aside the sentence.

In Bennett v. State, 450 S.W.2d 652 (Tex.Cr.App.1969), this Court wrote:

“The defendant having waived the time to file motion for new trial, and sentence having been pronounced, the trial court was under no obligation to permit the motion for new trial to be filed. Bedell v. State, Tex.Cr.App., 443 S.W.2d 850.”

In that case the sentence was pronounced September 17, 1968 and notice of appeal was given on September 27, 1968. A motion for new trial was filed alleging receipt of the testimony in jury misconduct. The court heard evidence on the motion for new trial in that case. See also Heath v. State, 161 Tex.Cr.R. 323, 276 S.W.2d 534 (1955), which held that the trial court did not err in refusing to permit the filing of a motion for new trial when he did not ask that the notice of appeal be withdrawn.

The evidence introduced at the hearing on the motion for new trial is not properly before us for our consideration. Boykin v. State, 516 S.W.2d 946 (Tex.Cr.App.1974); Roberts v. State, supra. In our recent decision in Sims v. State, 546 S.W.2d 296 (Tex.Cr.App.1977), we held that the evidence presented at the hearing on an untimely motion for new trial would be treated as an informal bill of exception. Sims v. State, supra, is contrary to nearly all decisions on the question. Sims overruled by implication Boykin cited above and countless other decisions of this Court. We overrule Sims. The evidence at the hearing on the motion for new trial is not properly before us.

Even if we were to consider the evidence heard on the motion, no reversible error would be shown. The testimony adduced was from a ten-year-old son of appellant who was at the house at the time of the shooting. An accused may not secure a new trial by the stratagem of failing to call a witness whose identity and knowledge of his case were known or by the exercise of reasonable diligence might have been known prior to trial. Waddell v. State, 503 S.W.2d 570 (Tex.Cr.App.1974). Assuming there was diligence, no abuse of discretion was shown. It should be remembered that this was a trial before the judge without a jury. He no doubt decided that the alleged new evidence would not have caused him to reach a different result.

No reversible error having been shown, the judgment is affirmed.

PHILLIPS, Judge,

concurring in the result — dissenting in part.

I dissent to that part of the opinion herein overruling Sims v. State, Tex.Cr.App., 546 S.W.2d 296, wherein we held that a transcript of testimony certified by the trial judge as defendant’s “bill of exception” could be considered as a bill of exception even though it related to matters raised in a motion for new trial which had theretofore been overruled by operation of law. Though the question in Sims differs from the question here presented in that the transcript of evidence in this case is not specifically designated and approved as a “bill of exception” by the trial judge, nevertheless, said evidence and the matter raised thereby should be considered by this Court and Boykin v. State, 516 S.W.2d 946, should be overruled.

The trial judge’s conduct in Sims was correct; the trial judge in the instant case could correctly have granted appellant’s motion for new trial based on newly discovered evidence. In Hines v. State, Tex.Cr. App., 495 S.W.2d 252, the original motion for new trial was overruled 20 days after it was filed. The first amended motion was filed three months after sentence and notice of appeal and the second amended motion for new trial were filed over six months after sentence. The defendant there claimed newly discovered evidence in both of his amended motions. Although the trial court’s action in declining to hold a hearing on the amended motions for new trial was upheld by this Court, the Court also noted at page 255:

“While appellant is not asserting his claim in his appellate brief for the first time as was the case in Watkins [v. State, 438 S.W.2d 819], supra, his contention under the first and fifth grounds of error that the substance of his first and second amended motion should have been considered by the trial court is similar to the argument in Watkins, supra. The long delay in the filing of the amended motions is tantamount to placing the motions in the realm of Art. 40.09, V.A.C. C.P., Trial Procedure.” (Emphasis added)

Those parts of Art. 40.09, V.A.C.C.P., material to the issue herein are as follows:

“3. Statement of facts and other proceedings.
The record may include a transcription of all or any part of the proceedings shown by notes of the report to have occurred before, during or after the trial and same will constitute the statement of facts for the appeal. A transcription applicable to any proceedings occurring before or within a period of ninety days after notice of appeal shall be filed with the clerk for inclusion in the record not later than the end of such period.
4. Effect of transcription of reporter’s notes.
A transcription of the reporter’s notes when certified to by him and included in the record shall establish the occurrence and the existence of all testimony, argument, motions, pleas, objections, exceptions, court actions, refusals of the court to act and other events thereby shown and no further proof of the occurrence or existence of same shall be necessary on appeal.” (Emphasis added.)

The majority cannot point to any provision of our statutes that in any way attempts to provide or limit the consideration of the reporter’s transcription of evidence material to a cause that has been filed and approved as part of the record by the trial judge within the statutory deadline for filing.

Fentis v. State, Tex.Cr.App. (No. 51,361, decided May 26, 1976), also involved a late filed motion for new trial. The trial court’s action in declining to allow the defendant to present witnesses and thus refusing to entertain his late filed motion was upheld by this Court. However, Judge Odom made this interesting observation:

“It is apparent that the November 11 motion was late-filed, there being nothing in the record to reflect that the trial court ever extended the time for filing the same past October 3. Art. 40.05, V.A. C.C.P. Nevertheless, if the trial court had proceeded to conduct a hearing on the merits within twenty days after the motion was filed, such act would be construed as a finding of good cause for the late filing of the motion, see Art. 40.05, supra, and the question whether the trial court abused its discretion in overruling the motion would be properly presented for review.”

By analogy, the trial court’s action here in designating the transcription of the hearing on the motion for new trial as a bill of exception should be sufficient to place that transcription before this Court for review.

Furthermore, Art. 40.05, V.A.C.C.P. provides that, for good cause shown, the time for filing or amending a motion for new trial may be extended by the court. The action of the trial court in hearing evidence on a late filed motion for new trial should be held to constitute a finding of good cause for said late filing and that the trial court intended to, and did, extend the time therefor.

Matters presented to the trial court by evidence heard after the time for filing a motion for new trial but within the statutory permissible period for filing transcriptions of a court reporter’s notes will generally be those matters of constitutional dimension, as in Sims, and the arbitrary refusal of this Court to consider these matters will generally result in a needless duplication of the same hearing through habeas corpus proceeding.

This Court has often spoken against requiring the doing of a “useless thing”. In Smith v. State, Tex.Cr.App., 486 S.W.2d 374, the defendant filed a habeas corpus writ attacking his prior conviction while the cause was on appeal. The trial court found that relief should be granted. This Court noted: “Under the circumstances of this case, we have concluded it would be a useless thing to require a separate proceeding after the appeal had become final.”

Similarly, in Ramirez v. State, Tex.Cr.App., 486 S.W.2d 373, an appeal from an order revoking probation, the defendant also filed a habeas corpus writ which attacked the conviction upon which his probation had been revoked. Although the relief granted in Ramirez was contrary to this Court’s usual procedure, the defendant was not required to file a separate writ of habe-as corpus because of this Court’s abhorrence of compelling useless things. At page 374, this Court discussed its result:

“Ordinarily, collateral attacks are not permitted on the original conviction upon which probation has been revoked, but in the present case it has been shown that under the decisions of the United States Supreme Court the appellant was denied the right to counsel. To require a separate habeas corpus proceeding to attack such conviction would be to require a useless thing.”

In addition to voicing objection to compelling a “useless thing”, this Court has often stressed the importance of judicial economy. In Davis v. State, Tex.Cr.App., 529 S.W.2d 547, the majority held that a hearing conducted on a motion for new trial, held approximately two months after the filing of the motion and pronouncement of sentence, was unauthorized and could not be considered by this Court. Disagreeing with that result, Judge Onion noted:

“Unlike the majority, I would not hesitate to consider the testimony developed at the hearing in the trial court while it still had jurisdiction of the case. See Art. 40.09, V.A.C.C.P. While the majority may be technically correct, if the hearing was on motion for new trial filed two months earlier, I think we spin judicial wheels unnecessarily when the majority suggests that appellant go back to the trial court for possible collateral attack upon the conviction relating to the effective assistance of counsel in order to bring back to this Court the very same testimony which is now in the record before us . The lack of finality of a criminal judgment is an ever increasing problem of the courts of this country and our procedure should be flexible enough to put to rest questions raised on appeal once and for all rather than relying on procedural technicalities relating to motions for new trial to side step questions while suggesting the question can be raised again by collateral attack which will again consume the time of the trial court and of this Court at great and additional expense to the tax payers where the appellants are indigent. No judicial economy is here involved.”

The majority’s decision today is not only unsupported by valid cause or reason, but is direct violation of the letter and spirit of Art. 44.23, V.A.C.C.P., which provides that no affirmance or reversal shall be determined on mere technicalities or on technical errors in the preparation and filing of the record on appeal.

ROBERTS, J., joins.


source: Caselaw Access Project

author: DOUGLAS, Judge.

license: Public Domain

text:
    Gregory Ray LAWS, Appellant, v. The STATE of Texas, Appellee.
    No. 53155.
    Court of Criminal Appeals of Texas.
    April 27, 1977.

      Walter J. Pink, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and James A. Moseley, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Gregory Laws appeals from a conviction for the offense of aggravated robbery. The jury assessed punishment at five years.

The evidence shows that on March 20, 1974, at approximately 4:15 p. m., three armed black men robbed owners of Kipper-man’s Pawn Shop in Houston. The robbers took several guns and placed them in a Hawaiian guitar case. They also took cash from the safe and register as well as a coin collection and a tray of diamonds. The three men made some of the customers in the store assist them in putting the guns in the case. The owners of the shop and the customers were then made to lie down on the floor and the three men fled.

Appellant challenges the legality of the search of his vehicle and the admission of the evidence seized as a result of that search. Officer R. D. Robinson and his partner of the Houston Police Department were directed to investigate the robbery at Kipperman’s Pawn Shop. They looked for the get-away vehicle which had been described as “. . . 1967 to 1969 Oldsmobile Cutlass, light blue in color, two door, and with 1974 Texas license, RSK 176.” The two officers immediately went to an apartment project on Mykawa Road. Within fifteen or twenty minutes after the robbery they saw an unoccupied vehicle which matched the description of the one involved in the robbery. They found that the tires and hood were still warm. They pulled away from the car and went across the street into another complex and set up surveillance. While they waited they radioed for a description of the suspects. Also, they requested the dispatcher check with the witnesses since the description of the car matched but the license plate number was “RHR 178” instead of “RSK 176.” Shortly, a pickup truck pulled in behind the ear. Two individuals then walked in between the truck and the car and opened the trunk. Officers noticed the guitar case matching the description of the one which had been reported as taken in the robbery on the ground. Appellant was standing directly behind the trunk of the car.

The officers moved in and arrested appellant and his companion. Three pistols were found on appellant, a .25 automatic and two .38 revolvers, as well as a bullet holder with twelve bullets. In the trunk of the car the officers found several more pistols wrapped in a sheet and other items which had been taken in the robbery. The guitar case also had several pistols in it. Approximately $120.00 in cash was found on appellant.

The victims and witnesses gave police a description of the robbers and the vehicle in which they made their escape. Officer Robinson and his partner had responded to the call to investigate the robbery. Within fifteen or twenty minutes they saw a vehicle matching the description broadcast. The license number was different but similar. The car was still warm and appeared as though it had been parked hurriedly. Appellant matched the description of one of the suspects. He was standing by the open trunk and the guitar case. The officers were authorized to arrest appellant and his companion. The search incident to their arrest was authorized and the fruits thereof were admissible into evidence. Probable cause existed for appellant’s arrest and search.

Next, appellant complains of the trial court’s failure to submit to the jury his special requested charge on identification. Both Kipperman and his wife identified appellant as one of the robbers as did Bobby Singleton, a customer present during the robbery. However, Mrs. Kipperman’s identification was undermined by testimony that she was unable to even tentatively identify appellant at a lineup the following day and that she had stated immediately following the robbery that she could not identify appellant and gave police investigators a description which did not fit appellant. Mr. Kipperman’s identification remained unimpeached as did Singleton’s. In fact, appellant’s counsel put on evidence of the lineup conducted the morning following the robbery which showed that Mr. Kipper-man positively identified appellant. His trial counsel was present at the lineup when Kipperman identified Laws.

Appellant requested the court to instruct the jury that if they had a reasonable doubt that appellant had been mistakenly identified to find him not guilty. The court did not err in refusing to submit the instruction because it would have been singling out particular parts of the testimony. In Dunne v. State, 98 Tex.Cr.R. 7, 263 S.W. 608 (1924), this Court held that it was not proper to single out evidence in instructing the jury. See Article 36.14, V.A.G.C.P., Notes 743 — 744. The court instructed the jurors that they had to believe appellant guilty beyond a reasonable doubt before finding him guilty.

The contention that the trial court erred in denying his requested charge on the law of circumstantial evidence is without merit.

Laws was positively identified as being one of the robbers. This is direct evidence of his participation in the commission of the offense and a charge on circumstantial evidence was not called for. See McClanahan v. State, 394 S.W.2d 499 (Tex.Cr.App.1965).

He also contends that the trial court erred in refusing to submit his requested charge on the law of reasonable doubt. The court’s charge applied the doctrine of reasonable doubt and adequately protected appellant’s rights. No error was committed. See Mitchell v. State, 517 S.W.2d 282 (Tex.Cr.App.1974).

His fifth ground of error alleges that the trial court erred in allowing testimony from witnesses after the State had closed.

Article 36.02, Y.A.C.C.P., provides:

“The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.”

After calling three witnesses, the State rested but did not close. Appellant called twelve witnesses. The State then called four witnesses in rebuttal. The power to regulate and control the order in which evidence is introduced is vested in the trial judge as a matter directed to his discretion. 56 Tex.Jur.2d, Trial, Section 114, page 460. Rulings of the court on questions regarding the order of proof will not be disturbed in the absence of a showing of an abuse of discretion. The prosecution is entitled on rebuttal to present any evidence that tends to refute the defensive theory of the accused and the evidence introduced in support of it. 56 Tex.Jur.2d, Trial, Section 116, page 461; Article 36.01, V.A.C.C.P., and cases cited therein. Even if the State had closed it would have been within the discretion of the trial judge to allow the State to reopen. Article 36.02, supra. No abuse of discretion has been shown.

Lastly, appellant contends that the trial court erred by admitting into evidence a photograph of him depicting his appearance on the date of his arrest. We disagree and overrule his contention.

Much of the identification testimony centered on whether or not appellant had long sideburns and a goatee on the day of the offense. There was also testimony that he was bald. The photograph was admitted to show his appearance at the time of his arrest. Just as a verbal description of appellant’s appearance at the time of his arrest is admissible, so too is the photograph that accurately depicts such. Reeves v. State, 491 S.W.2d 157 (Tex.Cr.App.1973); Denny v. State, 473 S.W.2d 503 (Tex.Cr.App.1971).

No reversible error having been shown, the judgment is affirmed.

ROBERTS, J., concurs in the result.


author: PHILLIPS, Judge. ONION, Presiding Judge,

text:
    Jack F. GIBSON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 53223.
    Court of Criminal Appeals of Texas.
    April 27, 1977.

      Michael P. Gibson, Dallas, for appellant. Henry Wade, Dist. Atty., Maridell J. Templeton, Samuel H. Bayless and Andy Anderson, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

The offense is driving while intoxicated; the punishment, assessed by the jury, $300.00 fine and three days confinement.

Appellant’s first ground of error contends the trial court committed reversible error by denying appellant’s written request to have the court assess punishment. On June 11, 1975, appellant filed an application for misdemeanor probation and two requests, which the trial court denied, to have the court assess punishment.

Art. 37.07, Sec. 2(b), V.A.C.C.P. provides: “Except as provided in Article 37.071, if a finding of guilty is returned, it shall then be the responsibility of the judge to assess punishment applicable to the offense; provided, however, that (1) in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began, and (2) in other cases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury. If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment.”

Under Art. 37.07, Sec. 2(b), supra, it is the responsibility of the trial judge to assess punishment unless the accused requests that the jury assess punishment either in a timely filed motion so electing or in a sworn motion requesting the jury to recommend probation. See Bullard v. State, Tex.Cr.App., 548 S.W.2d 13 (decided February 6, 1977); White v. State, Tex.Cr.App., 478 S.W.2d 506; Hall v. State, Tex.Cr.App., 475 S.W.2d 778; Langham v. State, Tex.Cr.App., 473 S.W.2d 515. Once the accused so elects, he may change his election of one who assesses the punishment only if the attorney for the State consents. Stephens v. State, Tex.Cr.App., 522 S.W.2d 924; Gonzales v. State, Tex.Cr.App., 466 S.W.2d 772; Palasota v. State, Tex.Cr.App., 460 S.W.2d 137.

In the instant case appellant’s application for probation prays that he be granted probation in said cause, and states he “would show the court” that he is eligible for probation. The application does not contain a request for the jury to grant probation. Cf. White v. State, supra; Ortegon v. State, Tex.Cr.App., 459 S.W.2d 646; Martin v. State, Tex.Cr.App., 452 S.W.2d 481. Appellant did not invoke the statutory right afforded by Art. 37.07, supra, to have the jury assess punishment. It was the “responsibility of the judge to assess punishment,” and the trial court was without authority to deny appellant’s request to have the court assess punishment. Further, the appellant was not required to file a written motion of election at the time he entered his plea, since he did not elect to have the jury assess punishment.

In view of the fact that the appellant at no time requested that the jury consider the issue of punishment, this case is distinguishable from Benson v. State, Tex.Cr.App., 496 S.W.2d 68; Ortegon v. State, supra, and Martin v. State, supra.

In Benson, the defendant elected before trial to have the judge assess punishment and changed his election after the jury announced they had reached a verdict, but before the verdict was received by the court. The court granted the defendant’s request to have the jury assess punishment even though the State did not consent. We held the error in submitting punishment to the jury was against the State and not against the defendant and the defendant could not complain because the court granted his request. Further, the defendant was not harmed by the trial court’s action because the judge made an independent finding that the defendant was the same person who committed a like offense as alleged in the indictment for enhancement under Art. 62, V.A.P.C.

In Ortegon, this Court held a written request for the court to assess punishment had the effect of withdrawing a prior request for the jury to assess punishment, which request was evidenced by a motion for probation, and constituted a waiver of the right afforded by Art. 37.07, Sec. 2(b), supra.

In Martin, the accused filed a motion for probation to the jury and a motion to have the court assess punishment. After the jury returned a finding of guilty, the jurors were discharged and the court assessed punishment. The defendant did not object to discharge of the jurors and no question was raised at the hearing on punishment or in a motion for new trial concerning the right of the trial court to assess punishment. This Court held that even if the motion to have the court assess punishment was not a request for the judge to assess punishment, the circumstances showed the defendant changed his election and waived the right to have the jury assess punishment.

The circumstances here presented are similar to the circumstances presented in Dickson v. State, Tex.Cr.App., 492 S.W.2d 267, wherein the issue of punishment was presented to the jury even though the defendant had not made such an election and had not made application for probation. Although the jury was not authorized to assess punishment under Art. 37.07, Sec. 2(b), supra, we held reversible error was not presented in light of the defendant’s failure to object to the procedure.

However, in the instant case, appellant did object to the submission of the punishment to the jury when he filed a request for the judge to assess punishment. The question remains whether failure to object when the jurors were not discharged after the finding of guilt was received constitutes a waiver. In Dickson, the issue did not arise until the punishment hearing commenced before the jury. In the instant case, the issue arose at the time appellant entered a plea and made his election. There is nothing in the record to show appellant changed his election at the close of the guilt stage of the trial, and we cannot presume such from a silent record. In light of the trial court’s denial of the appellant’s earlier request, we hold appellant did not waive his right to have the judge assess punishment under Art. 37.07, supra, and appellant was not required to reurge his request in order to preserve the question for review. See Waythe v. State, Tex.Cr.App., 533 S.W.2d 802; Glover v. State, Tex.Cr.App., 532 S.W.2d 346; Terrell v. State, Tex.Cr.App., 521 S.W.2d 618.

Appellant’s remaining ground of error relates to a comment by the court during the punishment hearing and need not be discussed in light of the disposition.

We cannot presume what punishment the court would have assessed. Cf. Benson v. State, supra. The error herein relates to punishment only. Accordingly, the punishment heretofore assessed is set aside, and the cause is remanded to the trial court for the proper punishment to be assessed by the court and the pronouncement of sentence, and further proceedings authorized by Art. 40.09, V.A.C.C.P.

It is so ordered.

DOUGLAS, J., concurs in the results.

ONION, Presiding Judge,

concurring.

I concur in the result reached but I feel it necessary to make several observations.

On June 11, 1975, the same date as trial commenced, the appellant filed two written requests. One was entitled “Defendant’s Motion to Elect the Court to Assess Punishment” and the other was designated “Defense Motion for Election as to Punishment,” in which it was requested that “the Judge” assess the punishment. Both motions were expressly denied over the signature of the trial judge. On the same date appellant filed a written motion for probation under Article 42.13, Vernon’s Ann.C. C.P., in which he states he “would show the Court” that he is eligible for probation. Following the guilt stage of the trial, the court retained the jury for the purpose of assessing punishment despite the earlier motions and the jury did assess punishment.

Article 37.07, § 2(b), Vernon’s Ann.C.C.P., provides:

“Except as provided in Article 37.071 (the procedure for capital murder cases), if a finding of guilty is returned, it shall then be the responsibility of the judge to assess punishment applicable to the offense; provided, however, that (1) in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began, and (2) in other cases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury. If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment.”

It is clear from the above that in all cases it is the responsibility of the judge to assess punishment unless the case falls within one of the three exceptions outlined above. These exceptions involved: (1) capital murder eases, or (2) where the defendant elects in writing to have the jury to assess, or (3) “in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began.” If not within the three exceptions, the judge has the responsibility of assessing without any motion, oral or written, on the part of a defendant.

In the instant misdemeanor case, it is clear the cause does not fall within the capital murder exception or the exception where the defendant files a written request to have the jury assess punishment, for here the appellant did just the opposite. The question then is whether the instant case falls within the remaining exception “in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began.”

To understand the meaning of this provision of Article 37.07, § 2(b), supra, it must be remembered that Article 37.07, supra, applies to both felony and misdemeanor cases other than misdemeanor cases of which the justice court or municipal court has jurisdiction. Article 37.07, § 2(a), supra. Regrettably we have two different statutes relating to probation. Article 42.-12, Vernon’s Ann.C.C.P., provides the procedure regarding probation in felony cases and Article 42.13, Vernon’s Ann.C.C.P., provides the procedure regarding misdemeanor probation. While the provisions of the two statutes are similar in some respects, they are dissimilar in others. The forerunners of Article 42.12, Vernon’s Ann.C.C.P., reach back to 1947, at which time Article 781b, Vernon’s Ann.C.C.P., was first enacted and at a time when only the judge could grant probation. Under such statute and under its successor, Article 781d, Vernon’s Ann.C. C.P., enacted in 1957, there was no requirement that a written motion for probation be filed. An oral request was sufficient though it was considered better practice to file a written motion.

In the proposed draft of a revision of the Code of Criminal Procedure by the State Bar of Texas, which was later introduced during the 59th legislative session in 1965, Article 781d became Article 42.12, Vernon’s Ann.C.C.P. Such proposed statute provided for the first time for a procedure whereby the jury as well as the judge could grant probation. It still did not require a written motion when probation was sought at the hands of the judge. It did provide, however, that when the accused sought probation from the jury a written sworn motion reflecting that the accused had never been convicted of a felony had to be filed before trial began. The proposed draft of the statute was designed to make this one probation statute applicable to both felony and misdemeanor cases alike. Article 37.07, supra, providing for the first time a bifurcated trial system was included in the State Bar’s proposed revision. While such legislation was pending, the 59th Legislature passed a separate bill relating to misdemeanor probation. Such statute was codified as Article 784a, Vernon’s Ann.C.C.P. (Acts 1965, 59th Leg., Ch. 164, p. 346) (H.B. 395). Such act became effective August 30, 1965. During the legislative session the said Article 784a, supra, was added to the bill revising the Code of Criminal Procedure and became Article 42.13, Vernon’s Ann.C. C.P., of that proposal which was enacted and became effective January 1, 1966. In § 3 of said Article 42.13, supra, there is a provision regarding the defendant’s application or motion for probation. It provides in § 3(a)(1) that “he applies in writing to the court for probation before trial.” § 3(c) requires that the application be under oath and reflect certain matters. § 3(b) provides in part: “If a defendant satisfies the requirements of Section 3(a)(1), (2), (3), and (4) of this Article, and the jury hearing his case recommends probation in its verdict, the court must grant the defendant probation. . . . ” (Emphasis supplied.) While § 3 has been amended since the article was enacted in 1965, the wording above has not changed. Article 42.13, supra, is awkwardly worded in may parts and the above quoted portion of § 3 is no exception. It would appear that every application or motion for misdemeanor probation must be made in writing “to the court” regardless of whether the defendant intends to actually apply to the jury for the same or not. To further add to the confusion is the phrase “and the jury hearing his case recommends probation in its verdict, the court must grant the defendant probation.” All of this is subject to the possible interpretation that where the defendant has applied for probation “to the court” but a jury is hearing his case the jury must determine the issue of probation.

It should be recalled that after the enactment of the 1985 Code of Criminal Procedure, which contained Articles 37.07, 42.12 and 42.13, Article 37.07, § 2(b), supra, as originally enacted, was amended in 1967 to provide:

“If a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, that (1) in capital cases where the state has made it known in writing prior to trial that it will seek the death penalty, (2) in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began, and (3) in other eases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury. . . . ” (Acts 1967, 60th Leg., p. 1739, ch. 659, eff. Aug. 28, 1967).

Following the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the statute was again amended to eliminate reference to capital cases where the State sought the death penalty but the other two exceptions to the judge assessing punishment were retained. (Acts 1973, 63rd Leg., p. 971, ch. 399, eff. Jan. 1, 1974.) In the same legislative session the section was again amended in light of the new statutory scheme for capital murder. The wording of that portion of Article 37.07, supra, is the same as set out in the beginning of this opinion (Acts 1973, 63rd Leg., p. 1126, ch. 426, eff. June 14, 1973).

It is clear from the foregoing background that the exception to the judge assessing punishment where a motion for probation has been filed contained in the current version of Article 37.07, supra, has application in felony cases only where the defendant has made a motion for probation seeking the same from the jury. It would not apply where the probation motion was directed to the trial judge in a felony ease. Therefore, a defendant charged with a felony may have a jury at the guilt stage of his bifurcated trial, but he would not be required to have that jury pass on punishment and the issue of probation where he had made a motion for probation directed to the court, unless, of course, his case fell within one of the three exceptions contained in the statute. Is a different procedure called for in misdemeanor cases? I conclude that it is not. Despite the awkward language of Article 42.13, supra, and the fact the exception here involved in Article 37.07, supra, could have been written with great clarity, I believe the Legislature intended for there to be a uniform procedure with regard to the duty of assessing punishment regardless of whether the case is a felony or a misdemeanor case governed by Article 37.07, supra. To hold otherwise would mean that in every misdemeanor case governed by Article 37.07, supra, a defendant who had filed a motion for probation could not have a jury at the guilt stage of the trial unless the same jury passed on punishment and the issue of probation at the penalty stage of the trial despite his wishes to the contrary. While I realize that the wording of Article 42.13, supra, requires every probation application or motion in a misdemeanor ease be directed “to the court,” the motion can be worded to leave no doubt as to whether the defendant seeks probation at the hands of the judge or the jury.

I would hold that the exception in Article 37.07, supra, to the judge’s responsibility of assessing punishment here under discussion has application only where the defendant’s application or motion for probation is directed to the jury, regardless of whether the case involves a felony or misdemeanor prosecution.

I agree with the majority that the instant case can be distinguished from Dickson v. State, 492 S.W.2d 267 (Tex.Cr.App.1973). While it would have been better practice for the appellant to have objected to the failure of the court to discharge the jury after the guilt stage of the trial had been concluded, the court had already made its ruling clear on two prior occasions that it would not assess punishment. While the record does not offer us the basis for the trial court’s ruling, I do not conclude that a third effort to obtain a different ruling is required before this court will review the matter on appeal. As there is nothing to show that the appellant changed his election as to who should assess punishment, I agree the trial court erred in permitting the jury to assess punishment.

For the reasons stated, I concur.

      . In White the accused filed a motion seeking probation from the jury. In Ortegon the defendant asked “the court or jury” to grant probation. In Martin the defendant asked the court to submit to the jury the application for a probated sentence.

      . The State points out that the record does not reflect whether the application for probation was filed before one or both requests for the court to assess punishment. The order in which these papers were filed is of no consequence in light of the fact that appellant did not at any time request the jury to consider the issue of punishment and in view of the fact that there was no necessity to file a motion for the court to assess punishment.

      . From this record it is not possible to determine in what order the three motions were filed and presented on June 11, 1975.

      . Acts 1967, 60th Leg., p. 1746, ch. 659; Acts 1975, 64th Leg., p. 910, ch. 341.


author: DALLY, Commissioner.

text:
    Robert Palacios RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 53237.
    Court of Criminal Appeals of Texas.
    April 27, 1977.
    Bob C. Hunt, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Robert A. Moen, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of theft under the former Penal Code. The punishment, enhanced by a pri- or conviction, is imprisonment for 12 years.

The appellant urges that the evidence is insufficient to support his conviction. We agree; the judgment must be reversed.

A burglarious entry was made at the house of Larry Speegla while he was at work on December 31, 1973. Speegla reported stolen a wrist watch, a ring, two shirts, several pairs of slacks, a pair of shoes, and an AM-FM clock radio. Several days later he found missing from his house a file box in which he kept important papers.

An officer who made an investigation of the burglary said it appeared entry had been attempted at the front door with channel lock pliers. He observed marks which he believed had been made by such pliers. Entry was made through a door between the garage and the house.

On January 7, 1974, Officer J. B. Haney went to the apartment of Sophia Rodriguez to investigate a “found article call.” Mrs. Rodriguez, the mother of the appellant, resided in the two bedroom apartment. The appellant was in the hospital at the time the officer visited the apartment. The officer found a file box on a shelf in the closet in a bedroom of the apartment. The lock on the file box had been broken; the box contained papers bearing Speegla’s name. Mrs. Rodriguez did not know who brought the file box to the apartment. Officer Haney arrested the appellant on a street not far from his house on January 31, 1974.

Mrs. Rodriguez testified that on January 7, 1974, she called the officers and gave them the right to search the apartment because she “didn’t have anything to hide.” She saw Officer Haney and Officer Con-traras find a file box in the closet of a bedroom in which her son had lived with his girlfriend.

Mrs. Consuela Garcia, who lived across the street from the Speegla house, observed a blue car at Speegla’s house at about 1:00 p.m. on December 31, 1973. She saw a man, the passenger, leave the car and walk down the driveway. She was unable to identify either of the two men and she did not see the automobile leave. The man that walked down the driveway appeared to be of Spanish descent, but she did not know whether the driver was of Spanish descent.

Francis Garcia, who lived two houses away from Sophia Rodriguez, the appellant’s mother, knew the appellant and Jessie Scalese, who hung around the neighborhood. She had seen the two men together and had seen Scalese driving a small blue automobile. Either a few days before or a few days after Christmas, 1973, she had seen these men unloading men’s clothes from a blue automobile and taking them into the apartment. About the first week in January, she observed two police officers at Mrs. Rodriguez’s apartment, then the two police officers came to her door and inquired about Scalese. After the officers left she noticed Sophia Rodriguez moving clothing from the front house to her garage apartment.

The appellant offered the testimony of Linda Cerdillo, who testified she had been going with the appellant off and on for three years. She testified that on December 31, 1973, and the first part of January, 1974, she lived with the appellant in an apartment with his mother. Sometime between December 31, 1973, and January 7, 1974, Linda said she found a metal box between the church and a brick building which she took home and put in the closet. The box had already been opened, but it contained papers and she did not take anything from the box. She said the appellant did not put the box in the closet; he was not with her when she found it, and she said he did not know anything about the box. She said that the appellant’s mother found and inquired about the box after the appellant had gone to the hospital. She told the appellant’s mother that she, Linda Cerdillo, had found the box and placed it in the closet.

The State’s proof is based on circumstantial evidence and the jury was so instructed. Since the facts of each case are unique, prior case law is only instructive and to be used as a guide in determining the sufficiency of the evidence in a particular case.

The State in its brief cites, quotes at length, and relies upon Hawkins v. State, 467 S.W.2d 465 (Tex.Cr.App.1971). In that case not only was the defendant found in possession of stolen property, but the defendant was identified by a witness who saw the defendant hiding near the burglarized premises and then saw him carrying a trumpet case and a hi-fi or a radio which looked like the property that was taken in the burglary. The witness saw the defendant place these items in an automobile and leave the scene of the burglary. The facts in Hawkins were obviously much stronger from the State’s standpoint then they are in the present case.

In Reed v. State, 487 S.W.2d 78 (Tex.Cr.App.1972) cited and relied upon by the State, the evidence not only shows that a knife taken in a burglary was found in the defendant’s room, but the evidence also shows that he was in possession of a pistol which was taken in the burglary and that the defendant asserted a right to the pistol and through the agency of another pawned the pistol. Here again the evidence from the State’s standpoint was much stronger than in the present case.

The State also cites and relies upon Lopez v. State, 490 S.W.2d 565 (Tex.Cr.App.1973) and Roach v. State, 398 S.W.2d 560 (Tex.Cr.App.1966). Without reciting the facts of these cases in this opinion we observe that the facts were also much stronger from the State’s standpoint than are the facts in this case.

An inference or a presumption of a defendant’s guilt of a burglary or of a theft sufficient to sustain a conviction may arise from the appellant’s possession of property stolen or taken in a recent burglary. However, in the prosecution for either a theft or a burglary, to warrant such an inference or presumption of guilt from the circumstances of possession alone, such possession must be personal, must be recent, must be unexplained, and must involve a distinct and conscious assertion of right to the property by the defendant. See 5 Branch’s Ann. 2d ed., Sections 2537 and 2650. 10 Tex.Jur.2d 250, Burglary, Section 88; Crain v. State, 529 S.W.2d 774 (Tex.Cr.App.1975); Randolph v. State, 505 S.W.2d 845 (Tex.Cr.App.1966); Hayes v. State, 464 S.W.2d 832 (Tex.Cr.App.1971); McKnight v. State, 399 S.W.2d 552 (Tex.Cr.App.1966); Russell v. State, 218 S.W. 1049 (Tex.Cr.App.1920); Russell v. State, 86 Tex.Cr.R. 580, 218 S.W. 1051 (1920).

Since the jury did not, we cannot give any weight to Miss Cerdillo’s testimony. Nevertheless, it was while the appellant was in the hospital that the officers found the file box in a closet of the bedroom which the appellant had shared with another. This evidence alone is insufficient to show that the appellant had the personal possession and asserted a distinct and conscious right to the property. Under the cases cited, this conviction cannot be upheld.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . At the time of his arrest the appellant had a pair of channel lock pliers in the waistband of his trousers. The trial court ruled that the State failed to show the arrest was lawful, therefore the Court would not permit the officer to testify before the jury that he had found the pliers in the appellant’s waistband at the time of his arrest.


author: ROBERTS, Judge.

text:
    Raymond ROBERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 54202.
    Court of Criminal Appeals of Texas.
    April 27, 1977.

      Polk Shelton, II, Austin, for appellant.
    Ronald Earle, Dist. Atty., and Richard E. Banks, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from an order revoking probation.

On August 7, 1975, the appellant was found guilty, upon his plea, of theft. His punishment was assessed at three (3) years, probated. Condition (2) of appellant’s probation was that he “Commit no offense against the laws of this or any State or of the United States.”

On May 19, 1976, the State filed a motion to revoke alleging that the appellant violated the provisions of his probation in that:

“he committed the offense of Burglary of a Habitation in that on or about the 16th day of April 1976, in the County of Travis, State of Texas, the defendant did then and there with intent to commit theft enter a habitation which was not open to the public, without the effective consent of D. J. Nunn, the owner.”

The appellant entered a plea of “true” to the State’s motion to revoke. He complains on appeal that the trial court abused its discretion in not withdrawing his plea of “true” and in revoking his probation upon insufficient evidence.

The only testimony at the hearing came from the appellant. He admitted that he entered the residence of the complaining witness without her permission. However, he specifically denied any intent to commit theft:

“Q You don’t know — when you went in there that night, did you intend to commit theft?
“A No.
“Q You did not; okay. What were you going to do, Mr. Roberson?
“A I had seen somebody coming out of the house — I thought I had seen somebody coming out of the house.”

At the conclusion of the hearing, the prosecutor stated, “Judge, burglary is alleged, and I believe the evidence is sufficient to find him guilty of a lesser included offense of criminal trespass of a habitation.” The prosecutor also recommended that appellant’s sentence be reduced to two years. Accordingly, the trial court revoked appellant’s probation and imposed sentence at two years’ confinement in the Texas Department of Corrections. However, the court’s order revoking probation recites that appellant committed the offense of burglary of a habitation, as alleged in the State’s motion to revoke.

The sufficiency of the evidence in a probation revocation cannot be challenged in the face of a plea of “true.” Mitchell v. State, 482 S.W.2d 221 (Tex.Cr.App.1972). However, we must consider the sufficiency of the evidence because the trial court should have withdrawn the appellant’s plea of “true” when the appellant took the stand and specifically denied any intention of committing theft. See, Gates v. State, 543 S.W.2d 360 (Tex.Cr.App.1976); Woodberry v. State, 547 S.W.2d 629 (Tex.Cr.App., 1977).

Criminal trespass is a lesser included offense of burglary. Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976). If the evidence is sufficient to support criminal trespass, we may reform the trial court’s finding to reflect this. Pickett v. State, 542 S.W.2d 868, 870-871 (Tex.Cr.App.1976); Art. 44.24(b), V.A.C.C.P.

Appellant testified that he entered the complaining witness’ home through the window and did this without her permission. He attempted to set up some type of defense by stating, “I had seen somebody coming out of the house — I thought I had seen somebody coming out of the house.” The trial court, as trier of fact, could have chosen not to believe this attempted defense. The trial court would not have abused his discretion if he had revoked probation based on appellant’s commission of criminal trespass.

The evidence being sufficient to sup- - port a finding that the appellant committed criminal trespass, the order revoking probation is reformed so as to reflect this.

The judgment of the trial court is affirmed.

DOUGLAS, J., concurs in the result.


author: ODOM, Judge. PHILLIPS, Judge,

text:
    Ex parte Terry David WINTON.
    No. 54508.
    Court of Criminal Appeals of Texas.
    April 27, 1977.
    Jim D. Vollers, State’s Atty., and David
    S.McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is a post-conviction habeas corpus application filed pursuant to Art. 11.07, V.A.C.C.P.

On July 9, 1975, petitioner pleaded guilty to burglary and punishment was assessed at twenty years. No appeal was taken.

Petitioner contends inter alia that the. indictment is fundamentally defective. The indictment alleges in pertinent part that he

“did then and there enter a building without the effective consent of Gary Minshew, the owner, and therein attempted to commit and committed theft.

Petitioner attacks this indictment for failure to allege a culpable mental state.

It is fundamental that an indictment must allege all essential elements of the offense sought to be charged. See, e. g., Reynolds v. State, Tex.Cr.App., 547 S.W.2d 590 (1977); Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266 (1976); Rejcek v. State, Tex.Cr.App., 545 S.W.2d 164; Posey v. State, Tex.Cr.App., 545 S.W.2d 162; Ex parte Garcia, Tex.Cr.App., 544 S.W.2d 432; Ex parte Lewis, Tex.Cr.App., 544 S.W.2d 430; Willis v. State, Tex.Cr.App., 544 S.W.2d 150; Huggins v. State, Tex.Cr.App., 544 S.W.2d 147; Ronk v. State, Tex.Cr.App., 544 S.W.2d 123; Pickett v. State, 542 S.W.2d 868; Timms v. State, Tex.Cr.App., 542 S.W.2d 424; Ex parte Jones, Tex.Cr.App., 542 S.W.2d 179; Adams v. State, 540 S.W.2d 733.

V.T.C.A., Penal Code Sec. 1.07(a)(13) provides:

“ ‘Element of offense’ means:
(A) the forbidden conduct;
(B) the required culpability;
(C) any required result; and
(D) the negation of any exception to the offense.”

V.T.C.A., Penal Code Sec. 6.02(a) and (b) provides:

“(a) Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.”

V.T.C.A., Penal Code Sec. 30.02(a)(3), under which the State sought to bring this prosecution, provides:

“(a) A person commits an offense if, without the effective consent of the owner, he:
“(3) enters a building or habitation and commits or attempts to commit a felony or theft.”

This statutory definition of burglary does not plainly dispense with any mental element, and therefore one is required by Sec. 6.02, supra. See Day v. State, Tex.Cr.App., 532 S.W.2d 302, 305, n. 1; Braxton v. State, Tex.Cr.App., 528 S.W.2d 844; contrast with Ex parte Ross, Tex.Cr.App., 522 S.W.2d 214.

Where a culpable mental state is an element of the offense, failure to allege this element renders the indictment fundamentally defective. Ex parte Garcia, Tex.Cr.App., 544 S.W.2d 432. The indictment here challenged is therefore fundamentally defective.

For the reasons stated, relief is granted; the conviction is set aside and the indictment is ordered dismissed.

PHILLIPS, Judge,

concurring.

For the reasons set forth in Davila v. State, Tex.Cr.App., 547 S.W.2d 606, I agree that the indictment is fundamentally defective, because it fails to allege a culpable mental state. I dissent solely on the ground that to permit a collateral attack upon a final judgment of conviction upon the ground of a defect in the indictment by omission of a material element is an undue expansion of the writ of habeas corpus. As to a defective indictment, inquiry on habeas corpus should be limited solely to whether there existed a valid law under which a valid indictment could have been drawn, Ex parte Long, 135 Tex.Cr.R. 520, 120 S.W.2d 1066; Bueno v. Beto, 458 F.2d 457 (5th Cir.1972), and our decisions of recent years holding otherwise should be overruled. However, since the majority of this Court differs with me in this view, without altering my view, I accept such expansion of the writ of habeas corpus by my brethren as the present law of this State until a majority of this Court concludes otherwise. This being so, in order to afford equal protection of the laws to the petitioner herein, I concur in the result.


author: BROWN, Commissioner.

text:
    Ex parte Charles PRINCE.
    No. 54608.
    Court of Criminal Appeals of Texas.
    April 27, 1977.
    Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.

Petitioner was convicted, on his pleas of guilty, of the offenses of murder with malice in Cause No. 158998 and robbery by firearms in Cause No. 159002, and assessed life terms of imprisonment in both cases on April 9, 1971. No appeals were perfected.

Petitioner’s application for writ of habeas corpus alleges that both of the above-mentioned offenses arose out of the same transaction and involved the same victim, thus the State should have been allowed to carve only one offense. Copies of the indictments, judgments and sentences in both cases show that the offenses occurred on July 28, 1970, with the victim in both cases being one Bernardo Cardinas. Pursuant to an order of this Court, an evidentiary hearing was held to develop the facts and circumstances surrounding the two offenses.

The statements of facts of the original trials were admitted into evidence during the evidentiary hearing, which contained certain stipulations of evidence. Petitioner’s confession and eyewitnesses’ statements were admitted at the original trial by stipulation.

From a review of petitioner’s confession and the eyewitnesses’ statements, it is clear that petitioner and his co-defendant, Herman Griffin, entered a hamburger restaurant shortly after 2:00 a. m. on the morning of July 28, 1970, and after brandishing pistols, ordered one employee and a customer to lie on the floor and instructed Mr. Cardi-nas to open the cash register. Apparently, a struggle ensued and petitioner shot and killed Cardinas, looting the cash register thereafter.

From this evidence, it is clear that the continuous nature of the assaultive action should have prevented the State from carving both robbery and murder out of the same transaction, and that one of these convictions is therefore invalid. The record reflects that the conviction for murder in Cause No. 158998 was entered first, and therefore the conviction for robbery in Cause No. 159002 is invalid. See Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr.App.1973); Hawkins v. State, 535 S.W.2d 359 (Tex.Cr.App.1976); Ex parte Evans, 530 S.W.2d 589 (Tex.Cr.App.1976); Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976); Ex parte Farris, 538 S.W.2d 134 (Tex.Cr.App.1976); Ex parte Birl, 545 S.W.2d 169 (Tex.Cr.App.1977).

For the reasons stated, the robbery by firearms conviction in Cause No. 159002 is voided and the indictment in that case is dismissed.

Opinion approved by the Court.

ODOM, J., concurs in the results for the reason stated in footnote 2.

      . Petitioner also pled guilty to three other indictments on that date, but we have determined that any challenges to the validity of those convictions are without merit.

      . We also note that the life sentence for robbery by firearms in Cause No. 159002 is a void and unauthorized punishment. See Ex parte Hill, 528 S.W.2d 125 (Tex.Cr.App.1975); Ex parte Murillo, 528 S.W.2d 127 (Tex.Cr.App.1975), but in view of our disposition of this case, any complaint concerning the validity of that sentence has been rendered moot.


author: McCLOUD, Chief Justice.

text:
    DLJ PROPERTIES/73, Appellant, v. EASTERN SAVINGS BANK, Appellee.
    No. 4956.
    Court of Civil Appeals of Texas, Eastland.
    March 24, 1977.
    Rehearing Denied April 28, 1977.

      John W. Davidson, Terry Topham, Saw-telle, Goods, Davidson & Troilo, San Antonio, for appellant.
    James D. Baskin, Jr., P. H. Swearingen, Jr., C. M. Montgomery, Matthews, Nowlin, Macfarlane & Barrett, San Antonio, for ap-pellee.
   McCLOUD, Chief Justice.

DLJ Properties/73, a New York limited partnership, sued Eastern Savings Bank, a New York corporation, in Bexar County, Texas, for specific performance and damages resulting from Eastern’s failure to fund a permanent loan in connection with the construction of an apartment project in San Antonio, Bexar County, Texas. The suit is based upon a Tri-Party Agreement dated November 27,1973, originally entered into by Richard C. Strauss of Dallas, Texas, as borrower; Cousins Mortgage and Equity Investments, a Georgia unincorporated business trust, as construction lender; and, The Bronx Savings Bank of New York, New York, as permanent lender. Strauss assigned all of his rights under the agreement to plaintiff, DLJ, however, Strauss remained personally liable for completing construction of the apartment project pursuant to the agreement. Strauss filed a plea of intervention seeking specific performance and damages against Eastern. The Bronx Savings Bank is one and the same corporation as Eastern Savings Bank.

Defendant was served under the Texas “Long Arm” Statute, Article 2031b, Vernon’s Ann.Tex.Civ.Stat., and filed a special appearance as authorized in Rule 120a, T.R. C.P., for the sole purpose of objecting to the jurisdiction of the court. The trial court sustained defendant’s contention and dismissed plaintiff’s suit. We reverse and remand.

On April 2, 1973, prior to the Tri-Party Agreement, The Bronx Savings Bank, now doing business as Eastern Savings Bank, executed a commitment letter, subsequently amended, to Crawford-Strauss properties. This commitment was later issued to Richard C. Strauss, individually, by addendum. In the commitment, defendant agreed, subject to certain terms and conditions, to make a permanent first mortgage loan, “covering the fee simple title” to the San Antonio property, in an amount not to exceed $2,175,000. The commitment was incorporated into and made a part of the Tri-Party Agreement sued upon by plaintiff. The agreement provided that Strauss, owner of the land on which the apartments were to be located, desired to borrow money for the construction and permanent financing of a 184-unit apartment project, and that the construction of the apartments were to be in accordance with plans and specifications which had been approved by the construction lender and the permanent lender. In reliance upon the execution of the agreement the construction lender made a construction loan to Strauss. Defendant agreed, subject to the provisions of the Tri-Party Agreement, to buy from the construction lender the construction loan.

We must determine whether the nonresident defendant is amenable to process under the Texas “Long Arm” Statute, Article 2031b, supra, and if so, whether the exercise of personal jurisdiction over the defendant is consistent with the requirements of due process of law under the United States Constitution. Pizza Inn, Inc. v. Lumar, 513 S.W.2d 251 (Tex.Civ.App.—Eastland 1974, writ ref. n.r.e.); Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973); Atwood Hatcheries v. Heisdorf & Nelson Farms, 357 F.2d 847 (5th Cir. 1966).

The Texas “Long Arm” Statute provides in Section (3) that a foreign corporation that engages in business in this state without maintaining a place of regular business in the state or a designated agent upon whom service may be made is deemed to have appointed the Secretary of State of Texas as agent upon whom service of process may be made in any suit arising out of such business done in this state. Section 4 provides:

“For the purpose of this Act, and without including other acts that may constitute ‘doing business’, any foreign corporation, joint stock company, association, partnership, or nonresident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, or the committing of any tort in whole or in part in this State.”

The defendant entered into a contract with a Texas resident, Richard C. Strauss, which was to be performed in part by either Strauss or the defendant in Texas. The commitment required Strauss to furnish an independent appraisal of the property to be made by one of two specified San Antonio appraisers. The defendant’s consulting engineers were expressly granted the right to make periodic inspections of the building site. The commitment expressly provided for an inspection by a “member of the bank.” Strauss was obligated to furnish defendant a “survey of the Premises” by a licensed surveyor “showing no encroachment on the Premises or by said improvements on adjoining property.” The commitment letter provided that a financing agreement under the Uniform Commercial Code, pledging the personal property used in the project, be made and filed.

Strauss conveyed the real property on which the apartments were to be located to plaintiff, and assigned his rights under the Tri-Party Agreement to plaintiff. Defendant consented to the assignment. Plaintiff and Strauss entered into a construction contract with Strauss as general contractor to build the apartments. We do not think the assignment by Strauss to plaintiff, a nonresident, removed the contract controversy from the reach of Section 4 of Article 2031b. Defendant satisfied the requirements of Section 4 and was thus doing business in Texas in connection with the Tri-Party Agreement. We have found no case in point, however, we feel the assignment of the contract did not remove defendant from the grasp of the Texas “Long Arm” Statute.

The trial court had jurisdiction over the defendant if assertion of jurisdiction does not exceed federal constitutional limitations.

Our Supreme Court in O’Brien v. Lanpar Company, 399 S.W.2d 340 (Tex.1966) suggested that three basic factors should coincide if jurisdiction over a nonresident corporation is entertained:

“ ‘. . . (1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.’ ”

See also: International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

In the instant case, the defendant’s officers and representatives purposefully came to Texas on several occasions to inspect the apartment project during construction. The commitment letter, which became a part of the Tri-Party Agreement, expressly provided for such inspections which were connected with defendant’s obligation to fund the permanent loan. The real property and improvements subject to the contract are located in Texas. The general contractor, Strauss, who built the apartments is a resident of Texas. The real estate appraiser who appraised the property resides in Texas. The record reflects that defendant at the time of the hearing had 14 conventional loans in Texas totaling approximately 19 million dollars which were secured by Texas real estate.

We hold the evidence conclusively establishes that defendant purposefully came to Texas in connection with the TriParty Agreement and the cause of action asserted arises out of that agreement. The required “minimal contact” with Texas was established and the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Defendant’s contacts with Texas were deliberate, rather than fortuitous.

The judgment of the trial court is reversed and the cause remanded.


author: HUGHES, Justice. MASSEY, Chief Justice,

text:
    GENERAL PORTLAND, INC., et al., Appellants, v. Mary COLLINS et vir., Appellees.
    No. 17813.
    Court of Civil Appeals of Texas, Fort Worth.
    March 25, 1977.
    Rehearing Denied May 5, 1977.

      McBryde, Bogle & Green, and John H. McBryde, Fort Worth, for appellants.
    Brown, Crowley, Simon & Peebles, and Anne Gardner, Fort Worth, for appellees.
   OPINION

HUGHES, Justice.

This is an appeal from a default judgment in favor of Mary Collins and husband, Richard Collins (Mary and Richard), in the amount of $75,000.00 against General Portland, Inc. (Portland) and Walter Owen Hedges (Hedges) arising out of a truck-automobile accident on December 6, 1973. The judgment was signed April 12, 1976, following a hearing on April 9, 1976. Mary and Richard filed their original petition in this suit on October 28, 1975.

Portland and Hedges filed original answers in the suit on April-14, 1976. They filed an amended answer and a motion for new trial on April 15, 1976. On May 4, 1976, they filed an amended motion for new trial. Trial court heard the amended motion on May 28, 1976, and on June 4, 1976, overruled such motion. Appeal was perfected.

We reverse and remand.

Portland and Hedges appeal on the legal grounds that the proof was not sufficient in the default hearing to support even a default judgment.

They also appeal in equity saying that they proved adequate grounds to excuse their failure to file an answer in time and that the trial court abused its discretion in not setting aside the default judgment.

We will not go into the facts or the law involved in the first 14 points of error filed covering above mentioned legal grounds. We conclude that they are without merit and they are overruled.

We find the equitable grounds urged in points of error Nos. 15 and 16 to be sufficient for reversal of the judgment entered by the trial court.

The facts leading up to and resulting in the default judgment rendered by the trial court reflect an obvious attempt by all parties to resolve their differences without a suit being filed. Attorneys for Collins conferred with Benny George, the adjuster, for nearly two years without serious effort to settle being made by either set of parties. Suit was finally filed to avoid the statute of limitations, a fact which was frankly admitted by attorney for the Collinses, with an invitation to George to continue consideration of settlement.

Just a few days before this suit was finally filed, the Collinses filed suit for an accident which occurred in 1975 (two years later than the accident involved here). The Collinses settled the matters involved in the latter accident.

The Collinses did not commence giving medical information to Portland and Hedges until late 1975, although the record reflects that numerous requests were made for such by George.

Neither-Portland nor Hedges filed an answer, nor did they turn the file over to their attorney until after the default judgment was rendered. Parties had a mutual agreement that no answer need be filed pending negotiations. (Peebles, by letter of November 7, 1975, told George that he would give 20 days notice for filing answer.) George requested this arrangement to save money by not filing an answer. Various doctors’ reports were delivered by Peebles. An exchange of several letters between Peebles and George (indicating that Peebles wanted an offer and George wanted more medical) culminated in Peebles’ letter of March 2, 1976, giving 20 days notice to George to file an answer. On March 25, 1976, time was extended for two weeks, and on March 31, 1976, Peebles sent more doctors’ reports. April 9, 1976, testimony was taken and default judgment rendered. Same date, George mailed the citations and copies of petitions in this cause to Portland’s and Hedges’ attorneys. Their Original Answer was filed on April 14, 1976.

Portland and Hedges claim that the failure to answer was on account of a mistake: George’s assumption that there would be no immediate default taken before Portland’s and Hedges’ attorney could file an answer. In the light of the protracted negotiations and attempts to arrive at a settlement between the parties we find no conscious indifference on his part and certainly not on the part of the parties he represented; nor do we find he intended that a default be taken. We also find that a meritorious defense was alleged in the Motion For New Trial and the affidavit of Hedges attached thereto. In the welter of conclusions there were woven enough fact statements to “set up” a meritorious defense to the Original Petition. The Motion For New Trial was filed three days after the Judgment was entered, at a time when the granting thereof would occasion no delay or otherwise work an injury to the plaintiffs. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939); City of San Antonio v. Garcia, 243 S.W.2d 252 (Tex.Civ.App.—San Antonio 1951, error ref’d); Ward v. Nava, 488 S.W.2d 736 (Tex.1972); Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964); Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966).

As late as March 31, 1976, Peebles wrote George: “Please try to make an objective evaluation of this case in the very near future, so we can either settle the case or prepare it for trial ” (emphasis ours). This might well indicate lack of intention to take default, supporting George’s interpretation of the agreement.

In their motion, Portland and Hedges offered to reimburse plaintiffs for all their expenses incurred in taking the default judgment.

For the reasons stated, we reverse the judgment of the Trial Court and remand for a trial on the merits.

MASSEY, C. J., dissenting.

MASSEY, Chief Justice,

dissenting.

This majority have concluded propriety of reversal and remand on the equitable ground that there was abuse of discretion by the trial court in refusing to grant the timely filed motion for new trial. As I understand their opinion they have held error by the trial court because there was prima facie evidence that the failure to file a Defendants’ Answer before the Plaintiffs’ default judgment was rendered was not due to conscious indifference to attend obligations which were understood as necessary to prevent the judgment. They deem mere prima facie evidence compelling and controlling so that abuse of discretion resulted by the trial court’s refusal to grant new trial.

The leading case found by the majority as authority was Ward v. Nava, 488 S.W.2d 736 (Tex.Sup.1972). I confess I am unable to understand the action of the Supreme Court in that case. It commanded new trial where there had been a trial court’s refusal to grant such in a case in which there had not been evidence before the trial court at time of its order refusing new trial; where the only presentation was the affidavit of the defendant explaining his failure to file answer, attached to the motion for new trial (I have thought such done in order to establish right to produce evidence upon the hearing of the motion for new trial); and where, even if the affidavit be proper to be considered as evidence, I would think the affiant’s credibility would be for the court.

I am inclined to doubt propriety of the grant to a defendant the conclusive presumption that by the mere verification of his affidavit that his failure to file answer in a suit against him was not due to his conscious indifference plus further verification that he had taken action in searching his home for the citation (which the Supreme Court majority thought sufficient corroboration), without producing testimony subject to cross-examination, so as to compel the grant of new trial. Nevertheless, I submit to the authority of the decision in Ward v. Nava, though I consider it controlling upon a trial court only where— (1) premise for motion for new trial is ignorance that there was a suit, and (2) no counter affidavits are filed, and/or (3) only where there is complete absence of any evidence at the hearing on the motion.

In the instant case it was the adjuster for an insurance company, which by contract stood in the stead of appellants in aspects necessary to be considered, who was responsible for absence of a timely filed answer. His affidavit was attached to the motion for new trial. Unlike the circumstances in Ward v. Nava the defendant, represented by the adjuster, appeared and testified upon the hearing on the motion.

I would hold the adjuster’s credibility material. In this case the truth of the facts to which he testified could not be said to have been established because of any want of evidence in contradiction. His evidence was on state of mind known only to himself. Further, and even if the trial court was obliged to accord credibility, the fact of the adjuster’s intentional delay in employing and directing an attorney to file an answer was proved by his own testimony. The very day default judgment was taken was the day he mailed his letter to an attorney in another city. It was by this letter that the attorney was employed to represent the appellants. The attorney could not have filed an answer in time to prevent default judgment if the appellees exercised rights to which the adjuster had agreed. The adjuster knew and understood the fact. He either intended to do what he did do or was consciously indifferent to whether the attorney employed would have time to file an answer to foreclose appel-lees’ entitlement. At least the trial court was entitled to so conclude. I perceive no abuse of discretion by the trial court in refusing to grant a new trial.

I would affirm the judgment.