author: STEAKLEY, Justice.

text:
    James D. CROW et al., Petitioners, v. HOME SAVINGS ASSOCIATION OF DALLAS COUNTY, Respondent.
    No. B-4925.
    Supreme Court of Texas.
    April 30, 1975.
    Rehearing Denied May 28, 1975.
    Lyne, Klein, French & Womble, Erich F. Klein, Jr. and Ron Edmondson, Dallas, for petitioners.
    Haynes & Boone, Robin P. Hartmann and Donald C. Templin, Dallas, for respondent.
   STEAKLEY, Justice.

This is a usury case. Petitioners here, who instituted the suit, are James D. Crow and two of his entities, K. C. Corporation and Buckner Plaza Apartments, Ltd. Respondent is Home Savings Association of Dallas County. The claim arises out of a loan consummation transaction of October 27, 1971, and the payment to Home of the sum of $24,985 under the circumstances and in the manner later detailed. Upon trial, the jury found that one of the transactions on October 27, 1971, in which the First National Bank in Dallas loaned Crow the sum of $150,000, was a device for accomplishing a loan from Home to Crow; and that the payment to Home of the sum of $24,985 was compensation for the use or detention of this sum of $150,000 and not for services rendered Crow by Home. The trial court entered judgment for Crow in the sum of $199,970 in usury damages and $30,000 in attorney’s fees. See Article 5069-1.06(2), Vernon’s Annotated Texas Civ. Statutes. The Court of Civil Appeals reversed and rendered judgment that Crow take nothing. 514 S.W.2d 160. It was the view of the Court of Civil Appeals that under the evidence the transaction in question was a bona fide loan by the First National Bank in Dallas, the repayment of which was guaranteed by Home, and hence not subject to the penalties of usury under the established rule of Greever v. Persky, 140 Tex. 64, 165 S.W. 2d 709 (1942). We agree and affirm.

The facts are reviewed in detail in the opinion of the Court of Civil Appeals and will be restated here only as necessary. Crow was the owner of land in northeast Dallas upon which he projected the construction of an apartment complex to be known as Buckner Plaza. A financing loan of approximately $2,498,500 was required. In May, 1970, Crow applied to Modern American Mortgage Company for a loan in such amount to be insured by the Federal Housing Administration. Modern American agreed to make the loan, the closing of which was delayed for eighteen months incident to obtainment of the FHA commitment. Approximately two months prior to closing, Modern American informed Crow that it would not furnish letters of credit required by the FHA notwithstanding its previous agreement to do so. Other letters of credit tendered by Crow were refused by Modern American. Crow testified that he then began searching for a substitute mortgagee and contacted Home, among others, in an effort to obtain financing. He wrote Home under date of October 20, 1971, to the attention of Jim T. Terry, President, and referencing “Buckner Plaza, FHA 112-35160-PM” as follows:

In reference to the above mentioned project, we would like to solicit your services in helping to arrange for the initial closing and funding on this project. If you are successful in helping us carry this project to the initial closing, we will pay your company a fee of $24,985.00.
Along with this letter, I will be furnishing you a copy of all the documents pertaining to the above mentioned project and ask that you proceed as fast as possible in getting all the final arrangements made.

A sum of $24,985.00, representing 1% of the loan, had been deposited by Crow with Modern American as earnest money. Soon thereafter Crow renewed his efforts to obtain the project loan from Modern American and to this end sought to utilize a payment bond to be issued on his K. C. Corporation. Apparently in response to this, Modern American agreed to accept the formerly rejected letters of credit upon the understanding that such payment bond would be obtained. But as to this, the bonding company required that K. C. Corporation have at least $150,000 in working capital and Crow unsuccessfully sought a loan in such amount from the First National Bank in Dallas. At this point Crow appears to have once again turned to Home and the following sequence of events is undisputed. Jim T. Terry, president of Home, instructed Crow to go to the office of Tack Thomas, a loan officer for the First National Bank, and on October 27, 1971, Crow there signed a promissory note in the sum of $150,000 payable in thirty days to the First National Bank in Dallas, and providing for interest from date at the rate of 7% per annum. Home guaranteed in writing payment of the loan and in addition secured its payment by pledging an existing certificate of deposit in the sum of $150,000 owned by Home and issued by the First National Bank. The proceeds of the loan were deposited to the account of the K. C. Corporation, subject to the condition of withdrawal only with the approval of Home. Thereafter, on November 3, 1971, the loan transaction with Modern American was consummated. Among the numerous finalizing details on such date, Modern American issued its check to Home in the sum of $24,985, the amount of Crow’s deposit with Modern American, bearing the notation:

FHA Project No. 112-35160-PM Buckner Plaza Dallas, Texas
Fee for Services Rendered in Connection with Origination of Mortgage.

Later, by means of a check dated November 3, 1971, in the sum of $150,233.33, Buckner Plaza Apartments, Ltd., over the signature of Crow, paid the note to First National Bank, with accrued interest.

This suit against Home for usury penalties was filed by Crow under date of August 17, 1973, approximately twenty-one months after the transactions in question. The suit is not against the First National Bank in Dallas, the actual lender, claiming a usurious loan by adding the interest rate in the note with the commission paid Home. It is not alleged or claimed that Home was the agent of the lender Bank or that Home and the Bank were otherwise engaged in any character of joint enterprise. Nor does Crow seek a recovery from Home of the commission of $24,985 upon any claim of duress, or fraud, or breach of contract, or failure of consideration. This suit is for usury penalties and the problem to be resolved is whether the Court of Civil Appeals correctly determined there is no evidence of probative force to support the jury findings noted in the forepart of this opinion. It is settled, of course, that in such an inquiry the evidence is to be viewed most favorably to the findings. See C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191 (Tex. 1966).

Home can be held to have overcharged for the use and detention of money only if in substance, if not in form, it was Home’s money, and not the money of the First National Bank ,in Dallas, that was used and detained by Crow. Greever v. Persky, supra, affirms that an agent or broker may lawfully charge a commission for his services in negotiating a loan with a third party; and that one may sell his credit to a borrower for a consideration, and to that end endorse, guarantee or become surety for the payment of a loan made to the borrower by a third person. In such instances the charges are not for the use and detention of money. A major emphasis in Greever v. Persky, supra, in delineating between a legal and a usurious transaction, and the validity of charges for the pledging of credit or collateral with a third party, is whether the party making such charges “himself lends to the borrower.” Cf. Stacks v. East Dallas Clinic, 409 S.W.2d 842 (Tex.1966), in which this Court, in rejecting a claim of usury, emphasized that the charged parties did not lend any money to the debtor. It is a fundamental principle governing the law of usury that it must be founded on a loan or forbearance of money; if neither of these elements exist, there can be no usury. Meaker v. Fiero, 145 N.Y. 165, 39 N.E. 714 (1895). When one negotiates a loan through a third party with a money lender, and the latter bona fide lends the money at a legal rate of interest, the contract as to the actual lender is not made usurious merely by the fact that the intermediary charges the borrower with a heavy commission, the intermediary having no legal or established connection with the lender. Texas Loan Agency v. Hunter, 13 Tex. Civ.App. 402, 35 S.W. 399 (1896, no writ).

Crow’s claim here, then, is, as it must be, that the Bank was not the lender but that the loan was actually made by Home. It is argued that this is shown by the testimony of Crow that he asked Home to make the loan of $150,000 and understood that Home and not the Bank made the loan; that he did not know that the Bank was lending the money; that he did not request Home to secure or guarantee the loan from the Bank or agree to pay Home a fee of $24,985 for its services in connection with the Bank loan; and that the Bank assumed no risk in making the loan because of Home’s collateralizing guarantee. Sapphire Homes, Inc. v. Gilbert, 426 S.W.2d 278 (Tex.Civ.App.1968, writ ref’d n.r.e.) is strongly urged as in point. We do not agree. The Court of Civil Appeals there upheld the conclusion of the trial court upon ample evidence that in the series of transactions in question the roles played by Sapphire (an insolvent guarantor) and Chill Juice (the lender in name but which had no assets and had never functioned as a corporation), both of which were corporate entities under the common control of the two individuals who arranged the questioned loan, were purely chimerical. The circumstances here are entirely different. It is undisputed that the First National Bank in Dallas is a separate and distinct lending institution and there is no claim that the Bank and Home were under joint control, or were engaged in a joint adventure with a mutuality of interest, or were acting in business collusion to accomplish a usurious arrangement. It is further undisputed that Crow signed the note in the sum of $150,000 payable to the Bank and received a corresponding deposit by the Bank to the account of Crow’s K. C. Corporation; and that Crow paid off the loan to the Bank with accrued legal interest. The evidence does not tend to prove that the loan transaction was nonetheless a device and subterfuge for the use and detention by Crow of money advanced by Home, or that the loan was not “passed on tó a third party” by Home in the words of Greever v. Persky, supra, or that the Bank did not in fact make a bona fide loan. Crow’s testimony as to his understanding of the transaction, and what he expected, or thought, or assumed, or the assurances he said he received, is not probative of usury. As before noted, for the usury laws to apply, there must be an overcharge by a lender for the use and detention of the lender’s money. The judicial inquiry is whether or not this has occurred. Questions of subterfuge or, as also phrased, of a cloak to avoid the usury law, are in point to the determination of this ultimate issue. In the undisputed situation here the loan transaction was with the Bank and the Bank charged and received legal interest. The charge made by Home was for services rendered in connection with the loan. The charge thus made and paid to Home by Crow, regardless of its reasonableness or not, cannot form the basis for a usury penalty against Home.

It should be made clear, however, that we are aware of the possibilities of usurious subterfuge in a transaction comparable in appearances to the one between these parties. The evidence in this record does not permit us to uphold the findings of the jury. The record does not disclose, for example, the dates or maturities of the certificates of deposit or contain information concerning transfers of funds and other transactions between Home and the Bank. There is no proof establishing, or from which it might fairly be inferred, that Home transferred to the Bank funds with which to make the loan, or obligated itself to leave on deposit with the Bank funds that would otherwise have been subject to withdrawal.

The judgment of the Court of Civil Appeals is affirmed.

GREENHILL, C. J., not sitting.

      . The jury findings were these:
      SPECIAL ISSUE NO. 1 evidence, that the transaction of October 27, 1971, with the First National Bank was a Do you find from a preponderance of the device for accomplishing a loan from Defendant Home Savings Association of Dallas ?
      Answer “Yes” or “No.”
      ANSWER: Yes
      SPECIAL ISSUE NO. 2
      Do you find, from a preponderance of the evidence, that Defendant Home Savings Association of Dallas was paid $24,985.00 as compensation for the use or detention of $150,000.00 and not for services?
      Answer “Yes” or “No.”
      ANSWER: Yes


source: Caselaw Access Project

author: ONION, Presiding Judge. MORRISON, Judge

license: Public Domain

text:
    Ex parte Benel ROBERTS.
    No. 50202.
    Court of Criminal Appeals of Texas.
    May 7, 1975.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
    Ray J. McQuary, Rosharon, for Roberts.
   OPINION

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding brought under the provisions of Article 11.07, Vernon’s Ann.C.C.P.

The record reflects that petitioner was convicted of the offense of wilfully and mischievously injuring personal property on October 4, 1970, in the Third Judicial District Court of Henderson County. His punishment was assessed at ten (10) years, probated. On August 18, 1971, his probation was revoked and he was sentenced to ten (10) years in the Department of Corrections.

Petitioner subsequently filed a post-conviction habeas corpus application in the convicting court, alleging, among other things, that the indictment under which he was convicted was fatally defective since it did not allege the extent of the injury. The trial court so found, but this court in Ex parte Roberts, 502 S.W.2d 802 (Tex. Cr.App.1973), denied relief, holding that the allegation could not be successfully raised by collateral attack after the conviction had become final.

In Ex parte Standley, 517 S.W.2d 538 (Tex.Cr.App.1975), this court held that a fatally defective indictment could be collaterally attacked where there was a failure to allege the value of the property assert-edly converted if the value affects the penalty. To the extent of the conflict, Ex parte Roberts, supra, was overruled.

In footnote #3 of the Standley opinion it was observed that in Jones v. State, 377 S.W.2d 205 (Tex.Cr.App.1964), this court held the failure to allege the extent of the injury in an indictment for unlawfully injuring personal property was “fundamentally defective” since the allegations as to the extent of the injury were necessary for a determination of the punishment to be assessed. In Jones this court said, “The indictment herein, which charged unlawful injury to the property and failed to allege the extent of injury was insufficient to charge an offense.1’ (Emphasis Supplied). See also Barber v. State, 449 S.W.2d 53, 55 (Tex.Cr.App. 1969).

On March 28, 1975, the United States District Court, Eastern District of Texas, Tyler Division (Fisher, J.), entered an order in Roberts v. Estelle, Cause #TY-74-120-CA (a federal habeas corpus proceeding), that the petitioner was entitled to the relief he sought, but that a summary judgment should not be entered as indicated by Francisco v. Gathright, 419 U.S. 59, 95 S.Ct. 257, 42 L.Ed.2d 226 (1974), hut in the best interests of the parties and the comity of the two jurisdictions the matter should be handled by the State District Court of Henderson County.

In such latter court, further proceedings were taken in accordance with Article 11.07, Vernon’s Ann.C.C.P., and the record was forwarded to this court with the trial court’s findings of fact and conclusions of law. In such findings the trial court determined that the indictment did not allege the extent of the injury to the personal property and that failure to so allege rendered the indictment fatally defective, as the extent of the injury was necessary for a proper determination of punishment, citing Jones v. State, supra. The record supports these findings and conclusions.

We conclude that the petitioner is entitled to the relief he seeks and is entitled to be released from the Department of Corrections, and prosecution under such indictment is ordered dismissed.

It is so ordered.

MORRISON, Judge

(dissenting).

I dissent for the reasons set forth in the dissenting opinion of Judge Roberts in Standley v. State, Tex.Cr.App., 517 S.W.2d 538, in which I joined.

ROBERTS, J., joins in this dissent.


author: ODOM, Judge. ROBERTS, Judge.

text:
    Lucille GOWANS, Appellant, v. The STATE of Texas, Appellee.
    No. 49511.
    Court of Criminal Appeals of Texas.
    April 16, 1975.
    Rehearing Denied May 21, 1975.

      Howard B. Law, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary Love, Dan Pitzer and Mike Smith, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of aggravated assault on an officer; punishment was assessed at a two hundred dollar fine and forty-six days in jail.

Appellant’s brief was filed in the trial court approximately one and a half months after it was due, and no request for an extension of time appears in the record. Art. 40.09(9), Vernon’s Ann.C.C. P. A review of the record does not reveal unassigned error which in the opinion of this Court should be reviewed in the interest of justice. Art. 40.09(13), V.A.C.C.P.

The concurring opinion asserts that appellant’s late brief should be considered in the interest of justice. Article 40.-09(13), V.A.C.C.P., cited in the concurrence for that proposition does not mention considering a brief in the interest of justice. It provides that this Court shall review “any unassigned error which in the opinion of the Court of Criminal Appeals should be reviewed in the interest of justice.” (Emphasis added.) We find no such error.

The judgment is affirmed.

OPINION CONCURRING IN THE RESULTS BUT DISSENTING TO THE MANNER OF DISPOSAL

ROBERTS, Judge.

The majority dispose of this case under Art. 40.09, V.A.C.C.P., because of late filing of the brief. I agree with the result, but wonder if we are not holding appellant’s feet to the fire when we fail to do so with the State and the trial court. We must have rules, but they should be uniformly applied. The State of Texas habitually files briefs late, but they are considered by this Court. Is this in compliance with the statutes of this State? Art. 40.-09(10), V.A.C.C.P., provides that the State’s brief shall be filed “[wjithin thirty days after defendant files his brief . or within such additional period as the trial court in its discretion may in its discretion authorize . . . Therefore, I would consider the brief of appellant in this case in the interest of justice. Art. 40.09(13), V.A.C.C.P. See, e. g., Nichols v. State, 511 S.W.2d 269, 270 (Tex.Cr.App.1974).

The record reflects that on March 11, 1973, three plainclothes Dallas police officers, including the complainant Ronald Parrish, went to the appellant’s home to arrest her husband and son. Appellant met the officers at the door and told them that neither her husband nor her son was at the house. In addition, the appellant disputed the officers’ right to arrest the two men.

As the officers left the house, they noticed a man peering through a window from inside the house. The man in the window resembled a picture the officers had of appellant’s husband, Lonnie Gow-ans, Sr.

After determining that the warrants for the two men were still outstanding, the officers returned to the house with two uniformed officers and knocked on the door. A voice inside asked who was there, and after Officer Parrish answered that it was the police, the officers heard what seemed to be movement away from the door. At this point, the officers decided that they would have to break the door down to enter the house. See Art. 15.25, Vernon’s Ann.C.C.P.

After breaking the door, the officers entered the house yelling “Police” loudly. They found Lonnie Gowans, Sr., inside the house and arrested him. On searching through the house for appellant’s son, Lonnie Gowans, Jr., Officer Parrish encountered the appellant. Parrish testified that the appellant was pointing a gun at him, seemingly about to pull the trigger. According to Parrish, he knocked the gun from appellant’s hand and subdued her.

Appellant testified that she did not point the gun at Parrish. She admitted that she attempted to load the pistol when she heard the door being broken, but insisted that she put the gun down when her daughter told her that it was policemen who were breaking down the door. This occurred, according to appellant, immediately before her encounter with Parrish.

Appellant’s first ground complains of the trial court’s failure to submit four of her requested charges and portions of two others. This ground of error is clearly multifarious and therefore violates the requirements of Art. 40.09(9), V.A.C.C.P. However, since it is possible to distinguish the issues raised by each of the requested charges, I would review the ground nonetheless.

Appellant’s first requested instruction would have charged the jury on self-defense, while the refused portion of appellant’s third requested charge went to the issues of self-defense and defense of property. Since the appellant denied pointing the pistol at Officer Parrish, these issues were not raised, and no charge was required. Brackenridge v. State, 489 S.W.2d 287, 298 (Tex.Cr.App.1973); Heath v. State, 375 S.W.2d 909, 911 (Tex.Cr.App. 1964). Cf. Poage v. State, 507 S.W.2d 789, 791 (Tex.Cr.App.1974). For the same reason, the trial judge was justified in refusing appellant’s requested charge on simple assault. Caples v. State, 69 Tex.Cr. 394, 155 S.W. 267, 269 (1913); Buster v. State, 470 S.W.2d 887, 889-890 (Tex.Cr.App.1971).

In her other refused charges, the appellant sought to have the court instruct the .jury on the alleged use of excessive force by Parrish, and on the alleged failure of Parrish to obtain a warrant or give proper notice of his authority to arrest. An examination of the record reveals that all of these issues were properly presented to the jury in the court’s charge. No error is shown. See, e. g., Aranda v. State, 506 S.W.2d 221, 225 (Tex.Cr.App.1974).

Appellant’s first ground of error is overruled.

In appellant’s remaining two grounds of error, she argues that a question asked of the appellant by the prosecutor constituted reversible error. The record reflects the following exchange:

“Q . Did you ever tell anyone that represented themselves as Police Officer’s [sic] that the, ‘The next cop that came out there, you were going to kill’ ?
“A No, I did not.
“MR. LAW [Counsel for appellant]: Your Honor, I am going to object to him asking that question. It’s my recollection, and to the best of my memory it’s not in evidence and we think it’s bad faith for him to propose a question that is not in evidence.
“THE COURT: Well, now that I do consider in bad faith . . . ”

The court sustained the appellant’s objection and instructed the jury not to consider either the prosecutor’s question or the appellant’s answer. Appellant’s motion for mistrial was denied.

Without discussing whether appellant’s objection was timely, I would overrule these grounds of error.

It is well settled that:
“An error in asking an improper question or in admitting improper testimony may be generally cured or rendered harmless by a withdrawal of such testimony and an instruction to disregard the same except in extreme cases where it appears that the question or evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds.” White v. State, 444 S.W.2d 921, 922 (Tex.Cr.App.1969).

See also Mistrot v. State, 471 S.W.2d 831, 833 (Tex.Cr.App.1971); Hartman v. State, 507 S.W.2d 553, 556 (Tex.Cr.App.1974).

In Sensabaugh v. State, 426 S.W.2d 224, 227 (Tex.Cr.App.1968), we held:

“The Court of Criminal Appeals rarely reverses a conviction of crime solely because an improper question was propounded to the defendant as a witness. To cause reversal the question must be obviously harmful to the defendant.”

The case now before us presents a somewhat distinctive situation in light of the comment by the trial judge that the prosecutor’s question was “in bad faith.” This is especially true when we consider the language from some of this Court’s previous opinions, which seem to imply that a showing of bad faith is sufficient to bring about a reversal on such an issue. See, e. g., Hartman v. State, supra, 507 S.W.2d at 556. Solis v. State, 492 S.W.2d 561, 564 (Tex.Cr.App.1973).

It is true that on several recent occasions this Court has reversed where the bad faith of the prosecutor was manifest. See Stein v. State, 492 S.W.2d 548 (Tex.Cr.App.1973); Renn v. State, 495 S.W.2d 922 (Tex.Cr.App.1973), and Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974). In each of those cases, however, the harm to the defendant and the prejudice to his rights were just as evident as was the improper conduct of the prosecutor; likewise, in each of the cases cited the prejudicial actions and comments of the prosecutor occurred frequently during the course of the trial, often in defiance of the rulings of the trial court.

No such pattern of prejudicial conduct confronts us in this case. Instead, we have an isolated instance of unsworn testimony from the prosecutor which is not unlike that found admissible in Hartman v. State, supra.

In Hartman-, this Court held that it was permissible in a murder prosecution for the State to ask leading questions about antecedent threats made by the defendant against the deceased, since the threats, if made, were admissible to show intent and malice. Since such threats are equally admissible in a case of aggravated assault, see Decker v. State, 58 Tex.Cr. 159, 124 S.W. 912, 913-914 (1910); 6 Tex.Jur.2d Assault and Battery, Sec. 91, page 322, I would hold that the prosecutor’s question was not so prejudicial that it could not be cured by the instruction of the careful trial judge.

I also conclude that the trial court’s comment as to the bad faith of the prosecutor was intended only as a stern admonishment and not as a determinative finding that would warrant reversal. Support for this conclusion is found not only in the record as a whole, but also in the denial by the court of appellant’s motion for new trial, and finally in the failure of the court to grant a new trial after submission of the briefs, pursuant to Art. 40.09(12), V. A.C.C.P.

I would affirm.

ONION, P. J., joins in this opinion.

      . At trial, the appellant admitted that her husband was in fact atl the house at this time.

      . It is undisputed that tne prosecutor’s comment injected new matter not in evidence.

      . At the hearing on the motion for new trial, the prosecutor testified that his question was based on an out-of-eourt statement made to him by one of the officers.

      . In doing so, I imply no retreat from the sound holdings in Stein, Renn, and Boyde, supra. See Roller v. State, 518 S.W.2d 373 (Tex.Cr.App.1975).


author: ONION, Presiding Judge.

text:
    Bonnie Edward REED, Appellant, v. The STATE of Texas, Appellee.
    No. 49863.
    Court of Criminal Appeals of Texas.
    May 7, 1975.
    Ralph Taite, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary Love and Gerald Banks, Asst. Dist. Attys., Dallas, 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 taken from a conviction for robbery by assault with a firearm, where the jury assessed the punishment at fifteen (15) years’ confinement in the Department of Corrections.

Sherelle Henderson, an employee of Lowe’s Bar-B-Q in Dallas, testified that on Saturday, September 29, 1973, about 11 p. m., the appellant and one Ernest Smith, also known as “Dirty Red,” entered the business establishment. After ordering sandwiches, Smith came behind the counter, pulled a gun and said, “. . . this is a stick up.” She related the appellant also displayed a gun. She gave Smith the money and both men left.

Yolanda Lewis, another employee, corroborated witness Henderson’s testimony and related appellant, whom she knew, pointed a gun at her and told her to walk to the counter and remained near the door until Smith yelled, “Let’s get out of here.”

Appellant testified he left Dallas in July 1973, and went to California and remained there until he was arrested in November, 1973, and extradited to Texas. His mother supported his alibi testimony.

In rebuttal at the guilt stage of the trial the State called Don E. McElroy, a Dallas City Police Officer, who testified that he knew the appellant and pointed him out. The record then reflects :

“Q You’re referring to the black male sitting at the end of the Counsel table?
“A Yes, sir.
“Q Okay. Mr. McElroy, how are you employed ?
“A I’m assigned to the Physical Evidence Section.
“Q All right, and what is your primary duty with the Physical Evidence Section ?
“A I’m a polygraph examiner.
“Q I will ask you whether or not you know the Defendant — you’ve talked to other people regarding—
“MR. TAITE: May we approach the bench ?
“THE COURT: Yes, sir.
“(Whereupon a discussion was had outside the hearing of the Reporter and the jury after which the following proceedings were had in the presence and hearing of the jury:)
“MR. TAITE: Your Honor, at this time the Defendant would object to the last question and answer of the officer, McElroy, and would ask that the jury be instructed to disregard that answer and consider it for no purpose at all.
“THE COURT: Members of the jury —your objection is sustained.
“Members of the jury, disregard the last question and answer of this witness, please, and do not consider it for any purpose in this trial.
“MR. TAITE: At this time the Defendant makes a motion for a mistrial, contending to the Court that the mere statement of what Mr. McElroy does, whether it has anything to do with this case or not is of such a prejudicial nature to the Defendant it cannot be cured by any instruction to the jury.
“THE COURT:- Overruled.
“MR. TAITE: Note our exception.
“Q (By Mr. Adams): Mr. McElroy, you stated you know the Defendant in this case, is that correct ?
“A. Yes.
“Q Have you talked to other police officers and civilians about the Defendant’s reputation for being a truthful person in the community in which he resides?
“A Yes.
“Q Does that reputation entitle him to belief under oath?
“A No.
“MR. ADAMS : No further questions.”

It should be observed that no testimony was elicited before the jury that the witness had given a lie detector test to the appellant, and the results of any such test were not mentioned.

In his first ground of error appellant contends he was denied a fair trial when Officer McElroy testified he was a polygraph operator.

It has been the consistent holding of this court that evidence of the results of a lie detector or polygraph machine is not admissible in evidence on behalf of the State or the defense. Romero v. State, 493 S.W.2d 206, 210 (Tex.Cr.App.1973), and cases there cited. See also Lee v. State, 455 S.W.2d 316, 321 (Tex.Cr.App.1970); Renesto v. State, 452 S.W.2d 498, 500 (Tex.Cr.App.1970).

Hart v. State, 447 S.W.2d 944 (Tex.Cr. App.1969), involved a situation somewhat similar to the one at bar. There, the prosecutor asked the officer witness by whom he was employed, “without going into detail as to his line of work.” The witness responded, “Fort Worth Technician Department, Crime Lab., Polygraph Examiner.” No objection was made, but shortly thereafter the jury was removed and the witness was instructed not to mention “lie detector” or “polygraph” again in his testimony. The defendant relied for error on his motion in limine. In affirming the conviction this court observed that it did not appear the witness alluded or referred to any examination given the appellant or anyone connected with the trial or the results of any such tests.

In Hannon v. State, 475 S.W.2d 800 (Tex.Cr.App.1972), a burglary prosecution, the fruits of the crime were found in the witness Jordan’s house after she consented to a search. Appellant was there at the time. Jordan related appellant and one Willis had brought the goods to her house. On cross-examination she was asked if she had gone to the police station and talked to them of her own free will. She related that she had gone to see her brother and Lt. Sinclair had questioned her with her consent, and “he put her on the lie detector test.” The objection was sustained and the jury instructed to disregard. The mistrial motion was overruled. The results of the test were not mentioned. There, the court held there was no error.

In Renesto v. State, supra, the State’s witness Dulaney was asked if on the day following the offense he had gone anywhere with a Ft. Worth police officer. He replied, “Well, I went down town at 8 o’clock in the morning and took a polygraph test.” The objection was sustained and a jury instruction was given. The results of the test were not mentioned. This court held that no error was presented.

In Paredes v. State, 368 S.W.2d 620 (Tex.Cr.App.1963), no error was shown in the non-responsive answer of the officer witness that he had taken the accused “to a polygraph machine,” where the record did not indicate a test had been given or, if given, the results thereof. Further, in Roper v. State, 375 S.W.2d 454 (Tex.Cr.App.1964), no reversible error occurred where the officer stated unresponsively that the defendant had been subjected to a polygraph test, and the results of the test were not revealed and the jury was instructed to disregard.

In Lee v. State, 455 S.W.2d 316, 321 (Tex.Cr.App.1970), the sheriff on direct examination related the morning following the defendant’s arrest he was taken before a second magistrate. When asked if he was present when that magistrate gave the warning, he replied, “Yes, sir. It was a warning that he didn’t have to take a lie detector — .” The prosecutor responded, “ — just—Sh'h—shh—shh—.” The court sua sponte instructed the jury to disregard, but overruled the mistrial motion. This court, citing Paredes and Roper, found no error was reflected.

In all the cases cited above, from Hart through Lee, the answer given was not responsive. In the instant case the answer to the question as to the witness’ primary duty with the Physical Evidence Section was responsive when he said, “I’m a polygraph examiner.” However, the court instructed the jury to disregard the last question and answer, no evidence that any polygraph test had been given was offered before the jury, and the results of any such test were not mentioned. The questions propounded to the witness after the jury instruction and overruling of the mistrial motion were limited to his discussion with “other police officers and civilians about the Defendant’s reputation for being a truthful person . . . .” His answer was “that” reputation did not entitle him to belief under oath.

Under the circumstances, we deem the above cited cases controlling and do not conclude that reversible error is shown.

Appellant relies upon Nichols v. State, 378 S.W.2d 335 (Tex.Cr.App.1964), for the proposition that reversal is called for in some cases even if the results of a lie detector test are not mentioned. In Nichols, the 14 year old prosecutrix in a statutory rape case was asked on re-direct examination:

“Q: Without telling me the results, did you take a lie dector test about this?
“MR. MABRY: (Appellant’s counsel) I object—
“A: (By witness) Yes sir.”

The objection was sustained, and the jury instructed to disregard. The court did not rule on the mistrial motion.

In reversing, the court concluded the elicited testimony was equivalent to revealing the results. The majority opinion stated:

“. . . The state not only inquired about a test, the results of which were not admissible, but when it asked the question and received an affirmative reply it no doubt very effectively bolstered the prosecutrix’s testimony before the jury. This, we think was highly prejudicial to the rights of appellant, and the harm done was so great that no instruction from the court could remove it. This testimony in effect revealed the results of the lie detector test and this was inadmissible. The jury no doubt were (sic) convinced that the Assistant District Attorney knew the prosecutrix had taken and passed the test. . . .” (Emphasis Supplied)

Appellant calls attention in the instant case to the fact that after the State had completed its interrogation of the witness McElroy in the absence of the jury it was developed that the witness McElroy had administered a lie detector test to the appellant around April 12, 1974, a little more than a month before trial. Although the prosecutor was not called to determine if he knew that such a test had been given, the appellant argues that it is obvious that the prosecutor knew and deliberately elicited the complained of answer for the inference it would leave with the jury. Since the witness had testified he was a Dallas Police Officer and was assigned to the Physical Evidence Section, the question as to his primary duties was unnecessary and should not have been asked. We cannot xonclude, however, that the circumstances call for reversal or that Nichols controls. In Nichols, the prosecutor actually elicited the fact that such a test had been given, where in the instant case there was no showing before the jury that any test was ever given and no mention was made of the results of any such test. The complained of question and answer as to the witness’ primary duties were withdrawn from the jury’s consideration at the court’s instruction, and it appears the witness’ rep-. utation testimony was clearly based upon his conversation with officers and others. Without the complained of question and answer, we do not see how an attack could be made upon the witness’ testimony. In light of the court’s prompt instruction to disregard the complained of question and answer, no reversible error is presented.

Appellant also contends the “evidence is insufficient to support the verdict.” As we view the evidence described above in the light most favorable to the verdict, it is sufficient to support that verdict. Appellant argues the testimony of Sherelle Henderson and Yolanda Lewis was inconsistent as to identification. Apparently appellant relies upon the fact that Officer Peavy testified he showed a total of six photographs to the two witnesses and Sherelle Henderson testified the officer showed her 19 or 20 photographs, and Yolanda Lewis testified she was shown as many as 50 photographs. This testimony was elicited at a separate hearing in the absence of the jury to determine the admissibility of the in-court identification. See Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969). At the conclusion of the hearing the court found that the identification testimony was based on independent observations of the witnesses at the time of the offense and was not tainted by the photographic display.

During the trial on the merits the State elicited from Officer Peavy that he had shown six photographs to the witnesses, and the appellant elicited from Yolanda Lewis that the officer had shown her some pictures and she could not say exactly how many, though she admitted she had said 50 pictures at the earlier hearing. Any inconsistency was for the jury, and does not render the verdict unsupported by the evidence.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Jeffery Leon JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 49807.
    Court of Criminal Appeals of Texas.
    April 23, 1975.
    Rehearing Denied May 21, 1975.

      Hubert W. Green, Mayo J. Galindo and P. Joseph Brake, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Gordon V. Armstrong and Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder; the punishment, 99 years.

The record reflects that Jif-E-Mart manager Edward Vasquez was shot and killed in his store on the afternoon of Friday, July 2, 1972. Investigators at the scene recovered a soft drink bottle on the counter from which they were able to obtain latent fingerprints.

Appellant’s first four and last two grounds of error relate to the admission of his fingerprints and confession. Appellant charges that his fingerprints were obtained while he was in unlawful custody and that his written confession resulted from being confronted with the fact that his fingerprints matched those found at the scene. Appellant further contends that his confession, which resulted from this fingerprint confrontation, was tainted under the “Wong Sun” doctrine.

San Antonio Police Officer Roy Aguilar testified that he was assigned to the case on July 5, the Monday following the homicide. After familiarizing himself with police reports on the homicide, which indicated that there had been several people in the vicinity of the offense, but that none had actually seen the homicide, he proceeded to inverview the witnesses. He first talked with IS year old Carlos Vasquez and his mother. The boy told Aguilar that he had seen two people leave the scene of the homicide after he heard “the shooting or this popping noise.” He further told Aguilar that, acting out of fear, he had not told the first investigating officers that he recognized appellant as one of the two people leaving the scene. Aguilar further testified that he talked with John Wayne Piper and Rico Rodriguez, who also placed appellant, in possession of a gun, at the convenience store on the afternoon of the homicide. Aguilar also recounted he had received information from “Crime Stop” that appellant was one of the “ones involved in the shooting or [was] seen there at the time of the homicide.”

The next morning, July 6, Aguilar continued, he and Detective Arthur Munoz, who had joined him in the investigation, went to the apartment complex in which appellant lived with his grandparents. While Aguilar waited in the car, Munoz went to the apartment.

Munoz testified that he told appellant he wanted to talk with him at police headquarters about his presence near the convenience store at the time of the offense and that appellant’s grandmother, whom he invited to go along, “said to go ahead and take the boy . . . ”

Aguilar also testified that once they reached police headquarters appellant consented to be fingerprinted. Aguilar stated he then began to ask appellant some general questions concerning his presence at the scene of the homicide. At this point, Aguilar continued, he was informed by another officer that appellant’s prints matched those found on the soft drink bottle recovered from the scene. The officer further testified that immediately after receiving this information he administered the Miranda warnings to appellant. Shortly thereafter, Aguilar concluded, after being read the warnings on the statement form, appellant executed a written statement admitting his participation in the homicide.

At the suppression hearing, appellant testified the officers came to his house and took him to police headquarters without his permission and that at police headquarters his fingerprints were taken, also without his permission. He further stated that police officers interrogated him concerning his participation in the offense and that he received no Miranda warnings until after he had given his confession.

Appellant’s grandmother testified that Officer Munoz told her that he wanted to take appellant to police headquarters for questioning and he would bring him back.

Following the hearing, the trial court admitted the fingerprints and confession in question. In his findings of fact and conclusions of law, the court stated:

“Having obtained this information from Vasquez, the witness, Officer Arthur Munoz and Roy Aguilar contacted Jeffery Jones and the other boy whose nickname became known to them as Tyrone —but whose real name was Richard White. The two officers went to the apartment complex where the two boys lived, contacted both of them and took both of them to the police station for an interview. It appears to the Court that from the information that the officers had at the time of the original contact made by the two officers that there was no probabZy cause for the arrest of Jeffery Jones, nor was there sufficient probabZy cause or information or evidence against Jeffery Jones for the officers to secure a warrant for his arrest. It does not appear to the Court that the detectives did arrest Jeffery Jones or Richard White as a matter of fact. It appears to the Court that the police would not be pursuing their duties properly to overlook interviewing these two persons who were seen at a location where a murder had occurred. It also does not appear unreasonable as a matter of fact that such interview be conducted with witnesses at the police station rather than in an apartment complex where these two boys were shown by the evidence to have lived.
“1. The questioning of the accused when the officers consider him a witness to a crime without giving him a warning either under Miranda v. Arizona or Article 38.22 [Vernon’s Ann.] C.C.P. of Texas, is not illegal.
“2. That the investigation began to focus upon the Defendant, Jeffery Jones, at the time his fingerprints were found on the 7-Up bottle on the counter by the cash register where the deceased was working at the time of the killing.
“3. That interrogating him thereafter under circumstances where he was given a full and complete warning under both Miranda v. Arizona and Article 38.22, C.C.P. of Texas, was not error, and the confession thereafter taken is admissible as a matter of law.”

An examination of the record appears to support the trial court’s findings and conclusions. At the time the officers approached the appellant, they were engaged in an investigative effort. Unlike Ancira v. State, Tex.Cr.App., 516 S.W.2d 924, where the arresting officer testified that even before he began to interview the defendant there was no doubt in his mind that he was selling heroin, the investigation in the case at bar had not yet specifically focused on appellant as the perpetrator. It was known that he was at the scene of the offense at the time of the homicide and that he was seen hurriedly leaving it. There was, however, no evidence affirmatively linking appellant to the homicide. Only when the fingerprints from the bottle found at the scene were matched with appellant’s prints did appellant’s complicity in the homicide become likely. At this point the officers administered the requisite Miranda warnings. Had the officers believed that appellant was more than a witness before his prints were matched with those found at the scene, it is likely they would have sought him out when they first learned of his presence at the scene from witnesses the day before. They did not do so, but merely went to interview him the following day. Appellant was not in custody when he accompanied the officers to police headquarters.

Appellant’s reliance on Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed. 2d 676, and Woods v. State, Tex.Cr.App., 466 S.W.2d 741, is misplaced.

In Davis, the defendant’s fingerprints and those of 23 other youths were taken in a wholesale manner as part of police efforts to apprehend a rapist who had left his prints on 'the windowsill of the victim’s home. The United States Supreme Court reversed, concluding that, although the officers had no reason to specifically suspect Davis’ involvement in the offense, they nevertheless took his fingerprints on two occasions and questioned him numerous times during a two week period. Further, there was no evidence Davis consented to be fingerprinted or questioned.

In Woods, the offense occurred in a rural area. Fresh tracks led from the victim’s home to that of the accused. Officers, who followed the tracks to accused’s home, took him outside to match his footprints with those leading to his home. Reversing, this Court concluded that in view of the fact that a single set of fresh footprints led from the victim’s home to that of accused, the officers had narrowed their investigation to accused and should have given the accused Miranda warnings before making the footprint comparison. The evidence which the officers possessed in Woods pointed conclusively to accused.

In light of the admissibility of appellant’s fingerprints and confession, we overrule his contention that the evidence is insufficient to support the conviction.

Grounds of error five and six charge that the court erred in failing to file findings of facts and conclusions of law concerning appellant’s confession before he admitted the confession into evidence. At the conclusion of the Jackson v. Denno hearing on March 7, 1973, the trial court admitted appellant’s confession. Subsequently on March 12, 1973, three days after the conclusion of the trial, the court entered his written findings of fact and conclusions of law.

Recently in Shadrick v. State, Tex.Cr. App., 491 S.W.2d 681, we concluded as we do here:

“While . . . delay in entering the order is not to be commended, no harm to appellant having been shown by the delay, such orders will be accepted. Clewis v. State, Tex.Cr.App., 415 S.W.2d 654; Gaston v. State, Tex.Cr.App., 435 S.W.2d 858.”

See also Foreman v. State, Tex.Cr.App., 505 S.W.2d 564; Morgan v. State, 516 S. W.2d 188 (1974).

Appellant’s next two grounds of error charge that the trial court’s findings and conclusions of law are defective because they fail to affirmatively reflect that appellant “knowingly, intelligently, and voluntarily waived his statutory and constitutional right to counsel” and that they further fail to specifically reflect that appellant had “sufficient mental capacity to understand the warnings and rights required to be given him.”

The record reflects the trial court included in his written findings that appellant was “not mentally retarded — but had an I.Q. which was average in respect to manual dexterity and like matter, but was below average verbally.” The court also found that Aguilar read to appellant “the top portion of the San Antonio Police Department Statement Form and that thereafter appellant signed the confession. The warning on the confession form reads as follows:

“I, Jeffery Jones, after being duly warned by Detective Roy E. Aguilar . that I have a right to have a lawyer present to advise me either prior to any questioning or during any questioning; and that if I am unable to employ a lawyer, I have a right to have a lawyer appointed to counsel with me prior to enduring any questioning; and that I have the right to remain silent and not make any statement at all; and further that any statement I make may be used in evidence against me at my trial; that if I decide to talk with anyone I can and that I can stop talking to them at any time I want. The above rights are continuing rights which can be urged by me at any stage of the proceedings, and I do hereby voluntarily waive these rights and give to Detective Roy E. Aguilar, Jr., the persons to whom this statement is being made the following statement.”

While it would have been better practice to have made an express finding as to waiver, we conclude that the court’s findings are sufficient to reflect that appellant knowingly, intelligently and voluntarily waived his right to counsel and that he possessed sufficient mental capacity to understand the warnings he was given. See Grayson v. State, Tex.Cr.App., 409 S.W.2d 850. See also Davis v. State, Tex.Cr.App., 499 S.W.2d 303.

Appellant’s ninth ground of error charges the evidence is insufficient to support the court’s findings that Aguilar read appellant the warning form at the top of the San Antonio Police Statement Form immediately before taking appellant’s written confession.

The record reflects that Aguilar testified he gave appellant the Miranda warnings immediately after his fingerprinting, and that he again warned appellant of his rights by reading him the warnings printed at the top of the confession form immediately prior to the time appellant made his written statement. Aguilar’s testimony is sufficient, despite appellant’s contradictory testimony, to support the trial court’s findings.

Finding no reversible error, the judgment is affirmed.

      . Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

      . He was not related to the convenience store operator.

      .At the suppression hearing, Aguilar was not asked and did not testify that he knew that appellant had a gun in his possession at the convenience store. At the trial on the merits, Rico Rodriguez testified that he had told Aguilar during their initial interview that appellant had one in his possession.

      . The trial court apparently meant to conclude that the interrogation began to focus on appellant when the fingerprint comparison was known.


text:
    Monty C. WEDDLE, Appellant, v. The STATE of Texas, Appellee.
    No. 50048.
    Court of Criminal Appeals of Texas.
    May 7, 1975.
    William F. Stolhandske, San Antonio (Court-appointed), for appellant.
    Ted Butler, Dist. Atty., Keith Burris, Don Clowe and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Appellant was convicted by a jury of burglary, a second degree felony, and they assessed his punishment at five (5) years.

Appellant’s court-appointed counsel has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit.

Nevertheless, aware of his duties under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d 493 (1967), and the procedure recommended by Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), such counsel filed an appellate brief setting forth two grounds of error which he contends might arguably support the appeal.

In carrying out the balance of his duties, counsel encountered some difficulty. He wrote a letter to the appellant confined in jail explaining his rights to him, including his right to file a pro se brief. Counsel attempted to serve a copy of his brief and a copy of the appellate record upon the appellant so that he might, if desired, file a pro se brief. The appellant refused to accept such brief and copy of the appellate record and refused to sign a certification prepared by counsel that these instruments had been delivered to him. It appears that appellant informed counsel that his family had hired an attorney, whose name he could not remember, but who had advised him not to accept or sign anything. Counsel was careful to obtain a witness to the rejection of the brief and record. The witness, apparently a jail guard, signed a statement reflecting the appellant had refused to accept the brief and record in his presence.

Wisely, counsel reported these developments to the trial court which had appointed him. It appears that the trial judge had appellant and counsel brought into open court and inquired as to the name of the supposedly retained counsel, how long he had been employed, etc., and the appellant merely gave his father’s name and address and stated that his father had employed such counsel, whose name was unknown to him. At the court’s directions appointed counsel wrote the father in Illinois by certified mail, reporting the developments and telling him that, if he had retained counsel for the appellant, the attorney had, under the court’s order, thirty (30) days from the date of the letter to file an appellate brief. It does not appear that there was any response to appointed counsel’s letter. No additional briefs have been filed in appellant’s behalf, and no pro se brief has been filed.

It appears that counsel has fully and commendably discharged his duties as court-appointed counsel on appeal, with the assistance of a careful trial judge.

We now turn to the grounds of error advanced. First, it is urged that the court refused to allow him to call a “material witness,” Daniel Hesbrook.

At the close of the State’s case in chief and outside the presence of the jury, appellant’s trial counsel stated his client wanted to call a Daniel Hesbrook, but candidly stated appellant would not tell him why the witness was “material” or “what areas he desires testimony insofar . ” It appears Hesbrook was present with his counsel. After inquiry by the court, it was determined that Hesbrook had been in jail at the time of the alleged offense. Hesbrook’s counsel stated to the court he had advised him not to testify, but Hesbrook was still willing to testify. The court then asked appellant personally what he intended to prove by such witness, and he replied: “He wrote a writ. He helped me plus he knows a little about my case.” The appellant refused to state the materiality of Hesbrook’s testimony, despite continued inquiries by the court. The court denied the request to call Hesbrook. No informal bill of exception was perfected, and no subsequent formal bill of exception was filed. It is clear that appellant would not cooperate with his trial counsel any more than he cooperated with appellate counsel. Nothing is presented for review.

Next, appellant complains of an error in the judgment which was on a printed form and which stated the appellant was “duly arraigned.” It is contended that he was not arraigned as recited in the judgment. The record shows appellant executed a written waiver of pre-trial arraignment. Since the necessary data and facts appear in the record, this court may reform the judgment to reflect what the record supports happened. We further note that at the time of trial the indictment was read to the jury and appellant refused to plead thereto, and the court entered a plea of “not guilty” for him, which was proper under the circumstances.

We have examined the record and conclude that the appeal is wholly frivolous and without merit.

As reformed, the judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Michael Dean HEISKELL, Appellant, v. The STATE of Texas, Appellee.
    No. 48933.
    Court of Criminal Appeals of Texas.
    May 7, 1975.
    Rehearing Denied May 21, 1975.
    J. E. Thompson, Pampa, on appeal only, for appellant.
    Guy Hardin, Dist. Atty., Pampa, Jim D. Vollers, State’s Atty. and David S. Mc-Angus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation.

On original submission, appellant’s court-appointed counsel filed a brief which set forth no contentions. The record did not reflect that appellant was served with counsel’s brief, that appellant was given an opportunity to examine the appellate record, or that appellant was advised of his right to file a pro se brief and given an opportunity to do so. For failure to comply with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, the appeal was abated in a per curiam opinion. The record now before us contains a brief bearing the names of both appellant and counsel filed in the trial court after this appeal was abated in which two contentions are urged. The basis for abatement on original submission is no longer present, the prior opinion is withdrawn, and the appeal will be considered.

The record reflects that appellant entered a plea of guilty before the jury to the offense of burglary on July 24, 1972. Punishment was assessed at five years, probated.

The State filed a motion to revoke appellant’s probation on March 12, 1974, alleging that appellant had violated a law of this State, having been “caught in the act of burglary at the office of Dr. R. M. Hampton, in Pampa, Gray County, Texas,” on March 12, 1974.

The record reflects that after a hearing on April 15, 1974, the court entered an order revoking appellant’s probation finding that appellant had committed an offense against the laws of the State of Texas, reciting the offense as it was alleged in the motion to revoke.

Appellant contends that the court abused its discretion in revoking his probation in that the evidence was insufficient to support the court’s finding that he committed the offense of burglary.

Officer McGill testified that while he was on patrol between the hours of 11:00 p. m. and 7:00 a. m. on the date in question he observed a “large plate glass window broken out at the Medical and Surgical Clinic” in Pampa. McGill called Dr. R. M. Hampton, entry was made into the clinic, and appellant was found inside the building “hiding in a storage room on his hands and knees.” Four bottles of assorted drugs, syringes and needles-were found in the pockets of appellant’s jacket. Dr. Hampton testified that he was called to unlock the door to the clinic for the officer and stated that upon entry he saw appellant in his office. According to Dr. Hampton, no one with authority to authorize entry had given appellant permission to enter the clinic on the occasion in question.

We conclude that the evidence was sufficient to support the court’s finding in revoking appellant’s probation. See Morrow v. State, Tex.Cr.App., 500 S.W.2d 811; Powell v. State, Tex.Cr.App., 475 S.W.2d 934.

Appellant contends that the court did not admonish him in accordance with Article 26.13, Vernon’s Ann.C.C.P. before accepting his plea of guilty to the primary offense.

While the general rule is that failure to appeal when placed on probation waives the right of review, this Court held in Perkins v. State, Tex.Cr.App., 504 S.W.2d 458 and Martinez v. State, Tex.Cr.App., 494 S.W.2d 545, that the failure to comply with Article 26.13, V.A.C.C.P. in the primary offense would be considered on appeal from an order revoking probation since the question could be raised at any time. The rationale of the holdings in Perkins and Martinez stemmed from this Court’s holdings that a conviction could be collaterally attacked for failure to comply with Article 26.13, supra. Ex parte Chavez, Tex.Cr. App., 482 S.W.2d 175; Ex parte Marshall, Tex.Cr.App., 479 S.W.2d 921; Ex parte Battenfield, 466 S.W.2d 569. The Court concluded in Martinez and Perkins that to hold that a failure to comply with 26.13 could not be raised upon appeal from the order revoking probation “would be to require a useless thing.”

In the more recent case of Ex parte Taylor, 522 S.W.2d 479 (75); this Court-held that, absent a showing of prejudice or injury, a conviction cannot be collaterally attacked for the failure to comply with Art. 26.13, supra. All of the cases to the contrary were overruled. See also Guster v. State, 522 S.W.2d 494 (75); Williams v. State, 522 S.W.2d 488 (75).

In light of the holding in Ex parte Taylor, supra, the underpinning which supported the decisions in Perkins and Martinez has been removed. There no longer being a basis for the exception to the rule announced in Martinez and Perkins, we conclude that appellant waived the right to review questions concerning compliance with Art. 26.13, supra, when he failed to appeal from the primary conviction when he was placed on probation.

We find no merit in appellant’s contention that the court erred when it did not “ascertain the mental competency of the Defendant” before accepting appellant’s plea on the primary offense. Even on direct appeal, absent a showing that an issue of sanity was made at the time the guilty plea was entered, appellant cannot complain of the trial court’s failure to ask questions as to' his sanity. McClintick v. State, Tex.Cr.App., 508 S.W.2d 616; Kane v. State, Tex.Cr.App., 481 S.W.2d 808.

We conclude that the court did not abuse its discretion in revoking appellant’s probation.

The judgment is affirmed.

Opinion approved by the Court.

ONION, P. J., and ROBERTS, J., dissent.


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

text:
    Ex parte Joseph TAYLOR.
    No. 49443.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1975.
    Rehearing Denied April 30, 1975.

      Melvyn Carson Bruder and Barry P. Helft, Dallas, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is a post conviction habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P. Taylor seeks relief from a conviction for murder. He contends that he was not properly admonished under the then Article 501, V.A.C.C.P. [now Article 26.13, V.A.C.C.P.], as to the consequences of his plea of guilty in that the trial court informed him that the punishment for murder was for any term of years not less than two nor more than life and did not mention the penalty of death.

In 1964, Taylor was convicted upon his plea of guilty before a jury which assessed his punishment at life. He did not appeal.

In 480 S.W.2d 692 (Tex.Cr.App.1972), this Court denied him relief upon an application for a writ of habeas corpus and held that the collateral attack upon the sufficiency of the evidence could not be maintained. The sufficiency of the admonishment was not discussed. He had been denied relief on other occasions.

From the record of the prior conviction it appears that he is correct in the statement that the court did not inform him of the full range of punishment.

We hold that the relief sought is denied. Contrary to earlier decisions, we now hold that in a collateral attack upon a plea of guilty there must be a showing that a defendant was prejudiced or injured for the failure of the trial court to fully comply with Article 26.13, supra.

The failure to inform an accused of the correct range of punishment has presented difficult problems or has at least caused a divided Court in recent years. See Cameron v. State, 508 S.W.2d 618 (Tex.Cr.App.1974); Jorden v. State, 500 S.W.2d 117 (Tex.Cr.App.1973); Valdez v. State, 479 S.W.2d 927 (Tex.Cr.App. 1972), and Alvarez v. State, 511 S.W.2d 521 (Tex.Cr.App.1974).

The provisions of Artidfe 26.13, V.A.C. C.P., and its predecessor, Article 501, V. A.C.C.P. (1925), have always been mandatory. See Saunders v. State, 10 Tex.App. 336 (1881); Wallace v. State, 10 Tex.App. 407 (1881); Evers v. State, 32 Tex.Cr.R. 283, 22 S.W. 1019 (1893); and Coleman v. State, 35 Tex.Cr.R. 404, 33 S.W. 1083 (1896).

Our holding is based in part upon the reasoning in Ex parte Meadows, 418 S.W. 2d 666 (Tex.Cr.App.1967). Prior to that decision, this Court had held that collateral attacks for the failure to comply with Article 494, V.A.C.C.P. [now Article 26.04(b)], could be maintained. That statute manda-torily provided for appointment of counsel and “counsel so appointed shall have at least ten (10) days to prepare for trial, unless such time be waived in writing by said attorney.” In overruling Ex parte Austin, 410 S.W.2d 439 (Tex.Cr.App.1967), and other cases, this Court wrote:

“It does not follow that the failure of appointed counsel to waive in writing the 10 days allowed him to prepare for trial is sufficient grounds for post conviction relief, if'it appears that such failure did not result in injury to the defendant such as would deprive him of a fair trial or deny him a constitutional right.
“There are many statutes the violation of which, if properly raised, would be ground for a new trial or reversal on appeal but would not be ground for relief in a post conviction proceeding.”

All of the cases contrary to this holding are overruled.

By our holding today, we do not in any way diminish the requirement of complying with Article 26.13. Pleas of guilty must still be knowingly and voluntarily entered. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Trial courts, in addition to the statutory requirements, could follow the recommendations of the American Bar Association Standards for Criminal Justice, Pleas of Guilty, Approved Draft, 1968. See Erdelyan v. State, 481 S.W.2d 843 (Tex.Cr.App.1972).

The relief sought is denied.

ON PETITIONER’S MOTION FOR REHEARING

ONION, Presiding Judge

(dissenting).

In the opinion on original submission of this post-conviction habeas corpus proceeding it was conceded that at the time of petitioner’s trial upon his plea of guilty he was not informed of the proper range of penalty, which was mandatorily required by the provisions of Article 501, Vernon’s Ann.C.C.P. 1925 (now 26.13, Vernon’s Ann.C.C.P.).

This court has long held that the failure of the court to properly admonish a defendant of the consequences of his plea, when he enters a guilty plea or plea of nolo contendere, is reversible error, Loudd v. State, 474 S.W.2d 200 (Tex.Cr.App.1971); Miller v. State, 424 S.W.2d 430 (Tex.Cr.App.1968); Williams v. State, 415 S.W.2d 917 (Tex.Cr.App.1967); Ex parte Humphrey, 456 S.W.2d 118 (Tex.Cr.App.1970); Ex parte Battenfield, 466 S.W.2d 569 (Tex. Cr.App.1971); Crawford v. State, 466 S. W.2d 319 (Tex.Cr.App.1971); Vasquez v. State, 477 S.W.2d 629 (Tex.Cr.App.1972), and further, that failure to comply with the provisions of Article 501, supra (now Article 26.13), may be raised after conviction at any time upon collateral attack. May v. State, 151 Tex.Cr.R. 534, 209 S.W.2d 606 (1948); Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779 (1956); Wilson v. State, 456 S.W.2d 941 (Tex.Cr.App.1970) (Concurring Opinion), and cases there cited; Ex parte Battenfield, supra.

On original submission the opinion stated that no longer could a petitioner collaterally attack a conviction for failure to comply with Article 501 (now 26.13) unless there was a showing that the petitioner was prejudiced or injured by the trial court’s failure to comply with the mandatory statute.

The opinion stated the reasoning was based “in part” upon Ex parte Meadows, 418 S.W.2d 666 (Tex.Cr.App.1967). The other part of the reasoning was not revealed. In Meadows the court was confronted with a collateral attack upon a conviction for failure to comply with the provisions of Article 494, Vernon’s Ann. C.C.P. 1925 [now Article 26.04(b)]. That statute required that appointed counsel shall have a ten day preparation period following appointment unless waived in writing. The earlier version required waiver by the attorneys, and the later amendment required the joinder of the accused. The provisions were held mandatory. Bennett v. State, 382 S.W.2d 930 (Tex.Cr.App.1964). For some time this court held that failure to comply with such mandatory statute could be the ground for collateral attack upon the judgment of conviction. See Ex parte Austin, 410 S.W.2d 439 (Tex.Cr.App.1967); Ex parte Dowden, 408 S.W.2d 512 (Tex.Cr.App.1966); Ex parte Brown, 404 S.W.2d 590 (Tex.Cr. App.1966); Ex parte Cooper, 388 S.W.2d 939 (Tex.Cr.App.1965).

In Meadows the foregoing cases were overruled, and it was held that a petitioner was not entitled to relief on collateral attack if the failure to comply with the mandatory statute did not result in injury to the petitioner such as would deprive him of a fair trial or deny him a constitutional right.

Meadows did not attempt to undermine or diminish the mandatory nature of former Article 494 [now 26.04(b)], and a failure to comply will call for reversal on direct appeal. See, i. e., Young v. State, 448 S.W.2d 484 (Tex.Cr.App.1970); Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968); Farmer v. State, 419 S.W.2d 382 (Tex.Cr.App.1967).

In joining the opinion on original submission it was my hope the same approach could be utilized with regard to claimed violations of Article 26.13, supra, particularly since the opinion stated:

“By our holding today, we do not in any way diminish the requirement of complying with Article 26.13. . . . ”

Further, the said opinion in footnote # 2 said:

“Our holding does not apply to cases on direct appeal.”

Nevertheless, since the opinion on original submission has been handed down, the majority, who have since 1973 sought to emasculate the provisions of Article 26.13, supra, but who have not been able to consistently agree upon any logical ground for doing so, have seized upon the opinion on original submission as a basis for further emasculation, diminution and judicial repeal of Article 26.13, supra, advancing the theory that the opinion, despite the language to the contrary, supports the non-review on direct appeal of a violation of the mandatory provisions of Article 26.13, supra, if it be unassigned error. See Williams v. State, 522 S.W.2d 483 (Tex.Cr.App.) (this day decided). The majority, then using the instant case (Taylor) and Williams as a bootstrap in Guster v. State, 522 S.W.2d 494 (Tex.Cr.App.) (this day decided), extends the so-called rule of Taylor and Williams to authorize a rule that unless there is a showing that the accused is prejudiced or injured by the failure of the trial court to fully comply with the “mandatory” statute and no objection is made to such non-compliance at the time of the plea or by motion for new trial, no appellate review will follow. This flies into the very teeth of the language of the opinion on original submission. I vigorously dissent to the overruling of the motion for rehearing. Williams v. State, supra (Dissenting Opinion); Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App.) (this day decided) (Dissenting Opinion); Bosworth v. State, 510 S.W.2d 334 (Tex.Cr.App.1974) (Dissenting Opinion).

ROBERTS, Judge

(dissenting).

I dissent from the decision by the Court to deny petitioner leave to file his motion for rehearing. I adhere firmly to the belief that a violation by the trial court of the mandate of Article 26.13, Vernon’s Ann.C.C.P., is still fundamental error. This case should not be used as a vehicle for abrogating the mandatory duties imposed upon the trial court by Article 26.13. See my dissenting opinions in Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App., delivered April 30, 1975); Williams v. State, 522 S.W.2d 488 (Tex.Cr.App., delivered April 30, 1975); and Guster v. State, 522 S.W.2d 494 (Tex.Cr.App., delivered April 30, 1975).

      . A list of the cases with language or implications to the contrary includes, but is not limited to, the following: May v. State, 151 Tex.Cr.R. 534, 209 S.W.2d 606 (1948); Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779 (1956); Ex parte Williams, 165 Tex.Cr.R. 130, 303 S.W.2d 403 (1957); Ex parte Muekelroy, 171 Tex.Cr.R. 616, 352 S.W.2d 835 (1962); Williams v. State, 415 S.W.2d 917 (Tex.Cr.App.1967); Miller v. State, 424 S.W.2d 430 (Tex.Cr.App.1968); Clark v. State, 424 S.W.2d 445 (Tex.Cr.App.1968); Ex parte Humphrey, 456 S.W.2d 118 (Tex.Cr.App.1970); Wilson v. State, 456 S.W.2d 941 (Tex.Cr.App.1970); Crawford v. State, 466 S.W.2d 319 (Tex.Cr.App.1971); Ex parte Battenfield, 466 S.W.2d 569 (Tex. Cr.App.1971); Rogers v. State, 479 S.W.2d 42 (Tex.Cr.App.1972); Ex parte Marshall, 479 S.W.2d 921 (Tex.Cr.App.1972); Ex parte Chavez, 482 S.W.2d 175 (Tex.Cr.App.1972); Ex parte Jordan, 490 S.W.2d 585 (Tex.Cr.App.1973); Ex parte Robinson, 494 S.W.2d 538 (Tex.Cr.App.1973); Martinez v. State, 494 S.W.2d 545 (Tex.Cr.App.1973); Heathcock v. State, 494 S.W.2d 570 (Tex.Cr.App.1973); Ex parte Harvey, 495 S.W.2d 229 (Tex.Cr.App.1973); Ex parte Williams, 499 S.W.2d 172 (Tex.Cr.App.1973); Ex parte Johnson, 499 S.W.2d 180 (Tex.Cr.App.1973); Ex parte Williams, 500 S.W.2d 127 (Tex.Cr.App.1973); Reed v. State, 500 S.W.2d 137 (Tex.Cr.App.1973); Perkins v. State, 504 S.W.2d 458 (Tex.Cr.App.1974); Ex parte Scott, 505 S.W.2d 602 (Tex.Cr.App.1974); Ex parte Dickerson, 508 S.W.2d 387 (Tex.Cr.App.1974); and Ex parte Watson, 508 S.W.2d 399 (Tex.Cr.App.1974).

      . Our holding does not apply to cases on direct appeal.

      . The consequences of a guilty plea or plea of nolo contendere have long been held to be “the punishment provided by law for the offense charged and the punishment which could be inflicted under this plea.” Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779 (1956); Ex parte Battenfield, 466 S.W.2d 569, 571 (Tex.Cr.App.1971); Alvarez v. State, 511 S.W.2d 521 (Tex.Cr.App.1974).


author: DOUGLAS, Judge. ONION, Presiding Judge

text:
    Wilbert Lee WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 49322.
    Court of Criminal Appeals of Texas.
    April 30, 1975.

      William G. Rosch, III, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and William Burge, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for assault to murder a police officer. Appellant pled guilty and the court assessed punishment at five years.

Appellant’s sole contention is that the trial judge did not comply with Article 26.-13, Vernon’s Ann.C.C.P., before accepting appellant’s plea of guilty.

At the trial the following occurred:
“THE COURT: ... you have now, along with your counsel . filed with this court certain pleadings, among them being a written Plea of Guilty advising the court that you now wish to waive formal arraignment and enter a Plea of Guilty to this charge. Is this your desire in the matter ?
“THE DEFENDANT: Yes, Sir.
“THE COURT: In this Plea of Guilty, you are making certain representations to this court, which I take it you have gone over with your attorney . and these representations you are making are true, is this correct ?
“THE DEFENDANT: Yes, Sir.
“THE COURT: You will understand that upon your Plea of Guilty you will be found guilty of the offense charged, that being assault to murder a police officer ?
“THE DEFENDANT: Yes, Sir.
“THE COURT: I further advise you that under the law of this State a person found guilty of such an offense, assault to murder a police officer, to which you are pleading guilty, may be punished by confinement in the Texas Department of Corrections for any term of years not less than two years or by confinement for life. The court is not bound to follow recommendations, if any, concerning punishment. I may do so. I may not do so. Now, being so advised as to the consequences of your Plea of Guilty, do you still desire the court to accept same?
“THE DEFENDANT: Yes, Sir.
it * * *
“THE COURT: Then the Court accepts the Defendant’s Plea of Guilty and orders same to be entered on the Minutes of this Court. . . . ”

The record also contains the following form signed by the appellant and the attorney for the appellant and an order signed by the -judge at the time of the hearing, omitting the formal parts:

“I, the undersigned Defendant, appearing in person and with the undersigned Counsel, hereby waive formal arraignment and reading of the indictment or information herein; and I voluntarily and of my own free will plead guilty, as charged in the above entitled and numbered indictment or information.
The undersigned Defendant, in person and by Counsel, hereby states to the Judge of said Court the following:
“1. I have never been treated for any kind of mental illness and that I am sane now and was sane at the time of the commission of the offense to which I have pled guilty; and
“2. No one has promised me anything, or threatened me in any way, or placed me under any kind of fear, or promised me that I would get probation, a pardon or early parole, in order to cause me to enter a plea of guilty to the charge herein; and
“3. I fully understand that the Judge is not bound to follow recommendations, if any, concerning punishment herein; and
“4. I went to the 11th grade in school and can read, write, and understand the English language.
/s/ Wilbert L. Williams Defendant
“The undersigned Counsel, attorney of record for the above Defendant herein, hereby states to the Judge of said Court the following:
“I have counseled and advised with said Defendant and it is my opinion that said Defendant is sane and is able to and does understand the nature and consequences of these proceedings.
/s/ William G. Rosch, III Attorney for Defendant
“ORDER
“The Court having considered the foregoing plea of guilty of the Defendant, it plainly appears to the Court that the Defendant is sane, and is uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon, prompting him to confess his guilt; and the Court having duly admonished the Defendant of the consequences of his plea, and the Defendant having persisted in pleading guilty, the Court accepts the Defendant’s plea of guilty and orders that such plea shall be entered upon the minutes of this Court.
“Signed and entered this the 14 day of January, 1974.
/s/ Dan E. Walton Presiding Judge”

The record also contains a Waiver of Trial by Jury and Felony Less Than Capital form signed by appellant and approved by his attorney and the trial judge.

The trial judge properly admonished appellant as to the consequences of his plea. He had before him sufficient information for it to “plainly appear” that the appellant was mentally competent and uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon.

In reversing a conviction based on a plea of guilty, Justice Douglas in Boykin v. Alabama, 395 U.S. 238, at 244, 89 S.Ct. 1709, at 1713, 23 L.Ed.2d 274, at 280 (1969), wrote:

“The three dissenting justices in the Alabama Supreme Court stated the law accurately when they concluded that there was reversible error ‘because the record does not disclose that the defendant voluntarily and understanding^ entered his pleas of guilty.’” (Emphasis Added)

The Supreme Court’s requirement for the determination of voluntariness is the consideration of the entire record. The review of the voluntariness of the guilty plea should not be based solely on questions and answers in the statement of facts, but on the record as a whole.

This Court recently in Toombs v. State, 514 S.W.2d 259 (Tex.Cr.App.1974), held that an affidavit in the record, executed by appellant and approved by the trial court, is insufficient and may not be used as a substitute for the trial court’s personal admonishment as to the range of punishment. We overrule Toombs. See Williams v. State, Tex.Cr.App., 522 S.W.2d 488 (decided this date), and Guster v. State, Tex.Cr.App., 522 S.W.2d 494 (decided this date).

The record, taken as a whole, reflects that the trial judge satisfied Article 26.13 before his acceptance of the defendant’s guilty plea.

In this case:
(1) The defendant executed a written statement stating that he is uninfluenced by fear, persuasion, or delusive hope of pardon;
(2) The appellant’s attorney signed the statement and declared that he had advised and counseled the appellant concerning the statement;
(3) The appellant and his attorney reaffirmed their declarations in the statement in open court at the trial; and
(4) After examining the appellant and hearing the verbal acknowledge-ments concerning the veracity of the statements by appellant and his counsel, the trial judge signed an order reciting that it plainly appeared to him that the appellant was mentally competent and was uninfluenced by fear, persuasion, or delusive hope of pardon.

When a defendant pleads guilty he surrenders many valuable rights. We have held, however, that he must affirmatively waive trial by jury, or the judge must empanel a jury. For that waiver we accept a written statement signed by the defendant. Why then can’t we accept a written statement from the defendant saying that he was uninfluenced by fear, persuasion or delusive hope of pardon as evidence that it plainly appeared to the trial judge that the appellant was uninfluenced by such factors?

From the record, as a whole, there is sufficient information before the trial court for it to plainly appear to the court that the appellant entered his plea “uninfluenced by any consideration of fear, or by persuasion, or delusive hope of pardon, prompting him to confess his guilt” and that the trial court complied with Article 26.13, supra.

Any cases that might be construed to the contrary are overruled.

For the reasons stated, the judgment is affirmed.

ONION, Presiding Judge

(concurring).

The real question presented by this appeal is simply whether a trial court may substitute or use a written form, in part or in whole, to conform with the requirements of Article 26.13, Vernon’s Ann.C.C.P.

While in my humble opinion the better practice would have been to have the judge inquire personally of the appellant in open court as to all the requirements of Article 26.13, Vernon’s Ann.C.C.P., I deem the procedure here utilized sufficient to reflect a compliance with Article 26.13, Vernon’s Ann.C.C.P. For this reason I concur in the result by the majority.

Further, I agree that Toombs v. State, 514 S.W.2d 259 (Tex.Cr.App.1974), should be overruled. In Toombs the transcription of the court reporter’s notes does not reflect that the court admonished the defendant of the range of punishment. The transcription did reflect the court inquired as to the defendant’s insanity, whether his guilty plea was prompted by any consideration of fear, any persuasion, or whether the appellant had been threatened or promised anything to plead guilty, etc. It is observed that the transcription of the court reporter’s notes reflects that the defense counsel in response to an inquiry stated, “Yes, your honor, we have been over these same questions a couple of times. And they are on your written admonishment form too. We have been over them too, the written admonishment form.” The court then allowed the case to proceed.

The form found in the Toombs record is entitled “Defendant’s Affidavit of Admonitions” dated and filed the morning of the entry of the guilty plea. It reads as follows:

“I hereby state that:
“1. I do not contend that I am presently insane; nor that I was insane at the time of the commission of the offense.
“2. My plea is entered without any consideration of fear, and I have not been threatened in any manner whatsoever.
“3. My plea is entered without any persuasion and I have been promised nothing for my entering such plea.
“4. My plea is entered without any delusive hope of pardon or parole.
“5. I am entering such plea of guilty because I am guilty of the offense of Theft Over $50 and for no other reason.
/s/ F. G, Shackelford /s/ Robert Toombs Attorney for Defendant Defendant
“This Court, having inquired of the above statements by the Defendant, is satisfied that such statements are true and correct and hereby approves this the Defendant’s Affidavit of Admonitions on this the 19th day of December, 1973.”

The court reversed the Toombs case, holding that an examination of the record revealed no admonition concerning the range of punishment and the affidavit of the nature involved could not be used as a substitute for the trial court’s personal admonishment.

Upon further reflection and study, I have concluded that while the Toombs affidavit may not be sufficient to reflect the court personally admonished the defendant as to the range of punishment, it should not be interpreted as holding an affidavit or other written instrument can never be used to satisfy the requirements of Article 26.13, supra, that an accused in a felony case be admonished as to the consequences of his plea.

For the reasons stated, I concur.

      . Undoubtedly Toombs overruled sub silentio Vavra v. State, 171 Tex.Cr.R. 24, 343 S.W.2d 709 (1961), and Wilson v. State, 456 S.W.2d 941 (Tex.Cr.App.1970), if not other cases. In Vavra the transcription of the court reporter’s notes reflected that the court failed to admonish the defendant as to the range of punishment. Nevertheless, the court found that a pre-trial motion to restrict questioning of the jury panel signed only by defendant’s counsel was sufficient to show the defendant personally knew the possible penalties involved. In Wilson the court did not admonish the defendant as to the range of punishment, but at the hearing on the motion for new trial stated that during the voir dire examination of the jury panel the prospective jurors were told what the possible punishment would be and the defendant was present. Cf. Ex parte Miller, 169 Tex.Cr.R. 235, 332 S.W.2d 720 (1960), where the defendant testified on the witness stand he knew the possible penalties.