author: ROBERTS, Judge. DOUGLAS, Judge,

text:
    Roy STUART, Appellant, v. The STATE of Texas, Appellee.
    No. 51987.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 8, 1978.
    Kenneth A. Back, Amarillo (court appointed on appeal), for appellant.
    Tom A. Curtis, Dist. Atty., and Bruce P. Sadler, Asst. Dist. Atty., Amarillo, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated rape. Punishment was assessed by the jury at 99 years’ confinement in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. The prosecutrix testified that appellant picked her up while she was hitchhiking, pulled off the main highway, and threatened to kill her if she did not perform oral sodomy upon him. She further testified that after this occurred he raped her twice during which he choked her until she became unconscious. When she regained consciousness she was allowed to dress and appellant then drove her back to the highway where she got out of the car.

Appellant admitted having sexual intercourse with the prosecutrix, but interposed the defense of consent.

Appellant urges that the trial court reversibly erred in admitting over his objection evidence concerning two prior occurrences involving alleged rapes. The appellant was prosecuted for the first alleged rape and acquitted by a jury. He was not prosecuted for the second alleged rape.

Appellant argues that the admission of the occurrence which resulted in an acquittal violates his federal and state constitutional right to be free from double jeopardy.

In McDowell v. State, 142 Tex.Cr.R. 530, 155 S.W.2d 377 (1941), the defendant was prosecuted for the possession of intoxicating liquor for the purpose of sale in a dry area. This Court held that it was reversible error to admit over the defendant’s objection a police officer’s testimony that he had bought a pint of whiskey from the defendant two months earlier, where the officer admitted that he filed a complaint against the defendant based upon the alleged prior sale and that a trial following this complaint resulted in the defendant’s acquittal. In reversing defendant’s conviction, this Court stated that:

“It has been the consistent holding of this court that upon a trial for possessing liquor for the purpose of sale the State may prove sales of such liquor, if not too remote, upon the issue of the purpose for which the liquor was possessed. (Citations). However, we are not aware of any case where evidence of a claimed prior sale has been admitted over a judgment of acquittal of the particular act charged. The harm here is apparent. The State made a case where it was entitled to and received the benefit of the prima facie presumption of the purpose of sale from the quantity of liquor in appellant’s possession. He undertook to combat the presumption by his claim that he had it for personal use. The issue was sharp. The State then sought the benefit of a claimed sale of which appellant had been found not guilty. We think error was committed in admitting the evidence.” Id., 155 S.W.2d at 378.

As in McDowell, the issue here is sharp. The prosecutrix alleged rape and the appellant defended on consent. We feel that any application of an exception to the rule against admission of extraneous offenses, Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), must necessarily be to an occurrence which has not already been conclusively established by a verdict of acquittal to have not been an extraneous offense in the first place. The prosecution should not be allowed an exception when they have failed to come within the ambit of the general rule. See, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Blackburn v. Cross, 510 F.2d 1014 (5th Cir.) reh. en banc denied, 517 F.2d 464 (1975); Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972).

Since we reverse appellant’s conviction because of the erroneous admission of the prior alleged rape which resulted in appellant’s acquittal, we do not discuss the error, if any, in the admission of the prior alleged rape for which the appellant was not prosecuted. However, in the event of retrial, we invite the trial court’s attention to our decisions in Caldwell v. State, 477 S.W.2d 877 (Tex.Cr.App.1972) and Jackel v. State, 506 S.W.2d 229 (Tex.Cr.App.1974).

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

VOLLERS, J., not participating.

DOUGLAS, Judge,

dissenting.

Relying on McDowell v. State, 142 Tex.Cr.R. 530,155 S.W.2d 377 (1941), the majority holds that an otherwise admissible extraneous offense or transaction is rendered inadmissible by appellant’s acquittal of the offense in a prior trial. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), requires that McDowell be overruled and that the judgment in the instant case be affirmed.

The testimony of the prosecutrix in the instant case shows that she was hitchhiking through Amarillo on February 24, 1975. Appellant picked her up on a highway north of town and then continued to drive north. After a few minutes of normal conversation he pulled off the main highway where a struggle ensued. He threatened to kill her and forced her to remove her clothes and perform oral sex on him. Thereafter, he raped her twice. During intercourse he choked her until she lost consciousness. Following the attack, he apologized and allowed her to dress. He drove her back to the highway where she got out of the car.

At the guilt-innocence stage of the trial, the State introduced over objection evidence that appellant had committed two other rapes. The first of such offenses was alleged to have been committed on January 2Q, 1974. The victim, C_ W-, testified in the instant case that she was walking down an Amarillo street when appellant approached and forced her into his car at gunpoint. After he threatened to kill her, she complied with his order to undress. Thereafter, he forced her to commit sodomy, raped her and choked her until she lost consciousness. Later, he permitted her to get dressed and get out of the car.

The second offense was allegedly committed in November of 1974. The victim in that case, J_W_, testified in the present case that she was a friend of appellant’s wife. On the date of that offense appellant came to her home and entered with her consent. After they talked and watched television, he threatened to kill her. He started choking her and told her to undress. Appellant ordered her to commit sodomy on him but she refused. He then raped her and choked her until she lost consciousness. Appellant later apologized and said he did not intend to hurt her.

Appellant testified and admitted having had sexual intercourse with the prosecutrix. He stated that no force was used and that she consented.

He further testified that C_ W_also voluntarily engaged in sexual intercourse with him. The record shows that he was tried for that offense and acquitted by a jury.

Appellant was not prosecuted for the rape of J_W_In this connection, he denied in the present case that he had had intercourse with her in November, 1974.

In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the Supreme Court of the United States held that the Fifth Amendment guarantee against double jeopardy is enforceable against the States through the Fourteenth Amendment. The question in this case is whether the court violated the double jeopardy provisions of the United States and Texas Constitutions by admitting into evidence C_W_⅛ testimony.

In Ashe v. Swenson, three or four armed men robbed six poker players in the home of one of the victims. The accused was charged in separate counts with the robbery of each of the poker players. He went to trial on one count and was acquitted as a result of insufficient evidence. He was subsequently tried for the robbery of a different player. The only rationally conceivable issue in dispute was Ashe’s identity as one of the robbers.

Holding that the guarantee against double jeopardy embodies the doctrine of collateral estoppel, the Court determined that the doctrine precluded the second prosecution and reversed the conviction. The Court defined collateral estoppel to mean “simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” 397 U.S., at 443-444, 90 S.Ct., at 1194, 25 L.Ed.2d, at 475. The Court then cautioned that this “rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th Century pleading book, but with realism and rationality.” Id.

Unlike Ashe, appellant was not prosecuted for an act after being acquitted for a contemporaneous act arising out of the same alleged criminal episode. The alleged rapes of C_ W_ and J_ W_were wholly separate occurrences. Thus, the issue which the State relitigated, whether those rapes were the result of a common scheme or design, was an eviden-tiary issue and not an issue of ultimate fact. The concept of collateral estoppel as defined in Ashe presented no bar to the introduction of the extraneous offense of which appellant was acquitted.

In effect, McDowell and today’s decision prohibit the relitigation of any fact with reference to prior criminal conduct of which the defendant was acquitted. Ashe expressly states that the only evidence that is precluded is evidence of fact issues which necessarily were determined against the prosecution on the prior trial.

The majority attempts to support its reliance on McDowell by citing Ashe; Blackburn v. Cross, 510 F.2d 1014 (5th Cir.) rehearing and rehearing en banc denied, 517 F.2d 464 (1975); and Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972). Ashe is contrary to the result reached by the majority for the reasons previously stated. Wingate was retroactively applied in Blackburn. Although we are not bound by decisions of the lower federal courts, see Pruett v. State, 463 S.W.2d 191 (Tex.Cr.App.1970), Wingate will be discussed in view of the constitutional significance of the issue before us.

In that case, a federal habeas corpus petitioner attacked his conviction for a robbery in a store. At his trial, the state introduced evidence tending to show that Wingate had committed four other robberies; he had been tried for and acquitted of two of them. On appeal, the United States Fifth Circuit Court of Appeals significantly expanded the holding in Ashe and held that the double jeopardy clause prohibited the state from relitigating, for any purpose, any issue which had been determined in a prior prosecution of Wingate. Hence, under the Win-gate holding, relitigation of either an ultimate fact or an evidentiary fact is barred.

The reasoning of the Court in Wingate cannot withstand thoughtful analysis. The Court stated that the evidence of the former robberies was offered to prove “some element” of the primary offense. This was incorrect.

The record in that case reflects that the prosecution was trying to prove only the ultimate facts of prior robberies as distinguished from showing the systematic conduct of the petitioner during those prior occurrences. The Court compounded its error by apparently concluding that the evidence would have been admissible had it not been for the acquittals.

Evidence of prior conduct of a criminal nature is admissible, in certain circumstances, to show motive, intent, a common plan, scheme or design, etc. See Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). But evidence that defendant had committed another similar crime, without more, is not admissible at the guilt-innocence stage any more than is evidence that he has been convicted of another crime (except where permitted for impeachment purposes). Evidence of prior criminal conduct is not admissible because it shows that another offense was committed; it is admissible despite the fact that it may show the commission of another offense.

Wingate, therefore, erroneously expanded the Ashe decision “beyond double jeopardy, beyond collateral estoppel, and beyond ultimate fact to bar the use of probative evidence about a wholly separate event.” Blackburn v. Cross, supra, (Clark, J., dissenting to the denial of the petitions for rehearing and rehearing en banc). Before the decision reached in Wingate, collateral estoppel had not been afforded so vast a scope in any civil or criminal case. That case is not acceptable authority for today’s decision, and unless the Supreme Court of the United States rules otherwise, we should not follow it.

The controlling facts in People v. Oliphant, 399 Mich. 472, 250 N.W.2d 443 (1976), are identical to those in the case at bar. There, Oliphant was convicted of forcible rape and gross indecency. Evidence was introduced at his trial concerning three pri- or incidents in which he had allegedly raped other women. Two of the victims brought criminal charges, but he was acquitted on both occasions.

Oliphant contended on appeal that the collateral estoppel principle barred the receipt of evidence concerning the alleged extraneous offenses. He relied on Ashe v. Swenson, Wingate v. Wainwright and Blackburn v. Cross. The Michigan Supreme Court rejected the contention and stated:

“. . .We read Ashe in the context of the facts of which it was based as holding that an issue of ultimate fact litigated in favor of defendant in one trial court cannot be relitigated by the government in subsequent trial for an offense arising out of the same transaction.
“Collateral estoppel as embodied in the Fifth Amendment does not preclude the receipt of testimony material to establishing a crime simply because it was offered and received in a prior trial on a totally distinct matter where defendant was acquitted. .
“. . . Ashe held that collateral es-toppel was incorporated in the Fifth Amendment’s guarantee against double jeopardy. Double Jeopardy arises when there is relitigation of the same facts from the same transaction. There is no double jeopardy in the instant case.” (Emphasis added.) 250 N.W.2d, supra, at 453-54.

The court then held that the evidence satisfied the state’s “like conduct” statute because it showed a plan or scheme to orchestrate the events surrounding the rapes whereby the victims could not show noncon-sent.

In the instant case, the trial court stated in its charge that the two other alleged offenses were admitted for the purpose of showing motive, scheme or a course of conduct toward a class of persons. The prose-cutrix was a “hippie” hitchhiker. C-W_was picked up as she was walking alone down a street. J_W-, a friend of appellant’s wife, had never been married but was four months pregnant when she was raped. She had been a member of the Jokers Motorcycle Club and had a felony theft conviction (which was subsequently reversed).

In each instance, appellant engaged in normal conversation with the victim before he raped her. He forced two of the women to commit oral sex on him and attempted to force the third to commit this act. He ordered each of the women to undress herself so that he would not have to tear or rip her clothes. In each case he choked the woman into unconsciousness. When each regained consciousness he forced her, on fear of death or bodily injury, to engage in sexual intercourse with him.

The evidence in all three instances tends to show a plan or scheme to prevent his conviction by attacking vulnerable, young women whose credibility could be challenged. Thus, the evidence of the other alleged rapes was highly probative and outweighed any prejudice to appellant which resulted from its admission.

The only ultimate fact which was litigated in this case was whether appellant raped the prosecutrix on February 24, 1975. The testimony of C_W_ was introduced for the sole purpose of strengthening the evidence of the instant offense charged by showing a plan, scheme or system.

This reasoning is analogous to the situation under the former penal code where proof was required that a principal was guilty before an accomplice could be convicted. The acquittal of the principal did not bar a subsequent prosecution of the accomplice even though the guilt of the principal had to be proved. See Rozell v. State, 502 S.W.2d 16 (Tex.Cr.App.1973). Different juries reach different results on the same facts. Under the majority’s reasoning in this case we would be compelled to hold that no issue raised in the principal’s trial could be relitigated and, thus, that the accomplice could never be prosecuted.

The numerical weight of authority opposes the majority’s position. Anno: Evidence — Other Offense — Acquittal, 86 A.L.R.2d 1132, 1135 (1962). McDowell v. State is no longer viable in light of Ashe v. Swenson. As a result we should overrule McDowell and hold that the acquittal of a defendant of another offense does not render proof of that offense inadmissible at a later criminal trial where such proof is otherwise competent. The fact of the defendant’s acquittal goes to the weight of the evidence, not to its admissibility; thus, defendant should be permitted to prove the acquittal. See United States v. Burkhart, 458 F.2d 201 (10th Cir. 1972); and State v. Smith, 532 P.2d 9 (Or.1975).

Reference to the express language of the federal constitution, “. . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”, best demonstrates the error of today’s decision.

The judgment should be affirmed.

TOM G. DAVIS and DALLY, JJ., join in this dissent.


source: Caselaw Access Project

author: ONION, Presiding Judge. ROBERTS, Judge,

license: Public Domain

text:
    Ernesto Ortega VARELA, Appellant, v. The STATE of Texas, Appellee.
    No. 52959.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 8, 1978.

      F. Terry Callahan, San Antonio, for appellant.
    Ted Butler, Dist. Atty., E. Dickinson Ry-man, Sid W. Conwan, Jr., and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, for the State.
   OPINION

ONION, Presiding Judge.

With the exception of the two footnotes contained therein which this writer has inserted, the following opinion was originally prepared by the late Judge Howard P. Green, a Commissioner of this court. In writing for the majority, I adopt Judge Green’s opinion as that of the court.

“This is an appeal from a conviction by a jury for the offense of sale of heroin. Punishment was assessed by the court at twelve (12) years.

The sufficiency of the evidence is not challenged.

The State’s evidence reflects that on the afternoon of June 15, 1972, appellant sold heroin to undercover Officer Albert Chev-era of the San Antonio Police Department. On the date of the transaction Officer Chevera drove with his informant Jimmy Levine a/k/a Jimmy Martinez to the corner of Somerset and Stonewall in San Antonio. Officer Chevera and Levine parked the car and walked over and initiated a conversation with appellant. During the conversation, appellant asked Officer Chevera if he wanted to “score” some heroin. Chevera said yes. The three men got into Chevera’s automobile and appellant directed Chevera to drive to the corner of Guadalupe and Cibolo. While en route, Officer Chevera gave appellant $30.00 as payment for the heroin. Appellant sighted “El Chueco” at the corner of Guadalupe and Cibolo and motioned him to the car. Appellant and “El Chueco” had a conversation which was followed by instructions from “El Chueco” to drive all four of them to the 200 block of Elvira. Upon arrival at Elvira, “El Chue-co” exited the car. Shortly thereafter, he returned, handed something to appellant, and left. Appellant then handed a balloon containing heroin to Officer Chevera. Appellant testified at trial that the crime was initiated by Officer Chevera and Jimmy Levine and that appellant was not predisposed to commit the crime but was induced to do so by Levine and Officer Chevera. Levine was not present to testify at the trial, and the record discloses that the prosecution did not know where he was or how to contact him.

In grounds of error one and four appellant contends the State was required to produce the absent witness Jimmy Levine at trial and the State’s failure to do so violated appellant’s right to compulsory process as guaranteed by the Sixth Amendment.

It is well established that the identity of an informer must be disclosed when he participated in the offense, or was present at the time of the occurrence of the crime, or would be a material witness as to whether or not the accused knowingly committed the offense. James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973); Carmouche v. State, 540 S.W.2d 701 (Tex.Cr.App.1976); see also Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Appellant was aware of the identify of Levine as the informer prior to the instant trial. The record reflects the State fulfilled its obligation by fully disclosing any knowledge it had of the whereabouts of Levine.

The Sixth Amendment does not require that the State or government be successful in trying to subpoena witnesses. All that is required is that process issue and due diligence be exercised in a good faith attempt to secure service of process. Sigard v. State, 537 S.W.2d 736 (Tex.Cr.App.1976); White v. State, 517 S.W.2d 543 (Tex.Cr.App.1974); United States v. Bolden, 461 F.2d 998 (8th Cir.1972); Maguire v. United States, 396 F.2d 327 (9th Cir. 1968). Appellant does not allege nor does the record reflect that the State did not make a diligent good faith attempt to secure service of process on the absent witness. As in Sigard, supra, the record reflects that the State and appellant were unsuccessful in their efforts to locate Levine and secure his presence at the trial.

Therefore, grounds of error one and four are predicated solely upon the contention that the State played a material role in securing the witness’ disappearance. The basis of appellant’s contention stems from the testimony of Preston Slocum, elicited during the hearing on appellant’s motion for new trial. Slocum, who was not present at the trial, testified at the hearing on the motion as follows:

“Q (Appellant’s Counsel): Did you ever have occasion to talk to Mr. Levine about the advisability of him staying in San Antonio, Bexar County, Texas?
“A (Lt. Slocum): Yes, sir.
“Q What were the facts surrounding that conversation?
“A He said — we told him the raid was going to go down and he said he was going to leave town but didn’t have any money. I told him I thought that was a good idea. I still think it was a good idea. He said he didn’t have any money. I gave Detective Doyal $75.00 for eating money.
“Q You know when you paid Officer Doyal that $75.00 that that was going to be given to Mr. Levine; he was going to use that to leave town?
“A I sent it out to the man. He said he was leaving town. Now, whether he was going to or not, I don’t know.
“Q But, you knew it was to be his advantage to leave town?
“A If I was in his shoes, I would have left town I guarantee you.
“Q And you advised him of the big bust before it went down, right?
“A Yes, he was advised.”

Sigard v. State, supra, is controlling. Sigard also contended he was denied compulsory process of witnesses based upon the same act complained of by appellant.

In Sigard we stated:

“Further, we cannot reach the conclusion that Lt. Slocum had the $75.00 delivered to Levine two and one-half years prior to the actual trial of the case in order to conceal evidence and deprive the appellant of the right of compulsory process of witnesses. The appellant had not even been arrested, and no indictment had ever been returned at the time. The record reflects that Slocum’s reasons were dictated by his concern for Levine’s personal safety and security which would make it a ‘good idea’ for Levine to leave town prior to the narcotics roundup. As stated in the concurring opinion on the State’s motion for rehearing in White (517 S.W.2d 543):
“ ‘ . . . It is certainly common knowledge that lives of informers in narcotic cases are in constant danger. The conversation appears to have taken place shortly after Leveine’s (sic) activities as an informer had been completed. Upon Leveine’s (sic) suggestion that he “needed some money to eat” Slocum sent him $75.00 by one of his officers. The amount involved was not sufficient to allow him to travel any great distance or to keep him in food for long.’
Slocum’s action cannot be seen as a calculated attempt to deprive this appellant of compulsory process because of Levine’s unavailability two and one-half years later. Indeed, Levine’s appearance as a witness at future trials would seem to be more assured and likely if he sought safety out of town at the time than if he remained in town at the mercy of alleged narcotics pushers who might be released on bond.
“Further, for the same reasons, we cannot conclude that the appellant was deprived of due process or that the court erred in overruling the motion for the State to produce Levine, his motions to abate or dismiss the prosecution, the motion to suppress evidence or the third motion for continuance based on the absence of Levine, as were the earlier motions. We are here confronted with a case that long pended on the docket of the court while both sides made a diligent effort to locate Levine without success and there was no showing that if the case was continued there would be any chance of locating Levine, and further, neither the State nor the appellant knew for sure what Levine’s testimony would be. Under the circumstances, the trial court cannot be faulted for proceeding with the trial almost three years after the alleged offense and over two years after return of the last indictment.”

In the instant case appellant also had not been arrested nor had an indictment been returned at the time Levine received the $75.00. Appellant also did not go to trial until almost three years after the payment had been made.

Further, it is highly unlikely that the mere absence of money would dissuade an informer whose life was in jeopardy from leaving town. Lt. Slocum’s testimony reflects that Levine had aided the police in making over one hundred cases against narcotic dealers. Levine would justifiably fear reprisals from numerous individuals. It is obvious that Levine’s leaving town was precipitated by his knowledge of the police’s intention to arrest the very individuals against whom Levine had helped make cases and not by the State’s token $75.00 payment.

Appellant’s grounds of error one and four are overruled.

Further, for the same reasons, the trial court did not err in overruling appellant’s motion to suppress the evidence of the sale of the heroin by appellant, which motion was based on the State’s having “made unavailable a material witness to the alleged sale . . ..”

Appellant’s ground of error number two is overruled.

Appellant contends in his third ground the trial court erred in denying his first motion for continuance.

On the day the case was called for trial, appellant presented to the court his sworn motion for a continuance based upon the absence of witnesses Slocum and Levine. A hearing was had on the motion after which it was denied.

Appellant’s motion for continuance reflects that appellant had engaged the services of a private investigator as of July 18, 1975, to locate witnesses Levine and Slocum. Appellant, however, did not cause citation to be issued for the missing witnesses until September 2, 1975, the day before the trial on the merits began. Additionally, the motion for continuance was not filed until the day of the trial. The diligence required to support a motion for continuance has not been shown, and error in the overruling of the motion is not presented. Gonzales v. State, 505 S.W.2d 819 (Tex.Cr.App.1974); Booth v. State, 499 S.W.2d 129 (Tex.Cr.App.1973); Kelly v. State, 471 S.W.2d 65 (Tex.Cr.App.1971).

During the hearing on the motion for continuance, appellant’s investigator testified to the following concerning locating Jimmy Levine.

“BY MR. RYMAN:

“Q Since July 18th, 1975, what efforts have you made as far as trying to locate this person by the name of Jimmy Levine or Jimmy Martinez or whatever his true name is?
“A (Mr. Luther, appellant’s investigator): All right, I checked again with the Bexar County Sheriff’s Department when I was appointed on this case, and I cheeked again with the domestic relations section and also the hot check section. I checked with two other investigators that I know that have been appointed on other cases that were stemming from Mr. Levine. And we talked and exchanged ideas to see possibly what idea we could come up with to find him.
“Q In checking with his sister, did she have an address in the State of Minnesota for this person?
“A No, sir. She got a letter from him postmarked from Minnesota and didn’t elaborate on the contents of the letter. She said to me that she thought he had been there for two or three years.
“Q Two or three years?
“A And I’d like to make a correction, that it wasn’t Minnesota; it was Michigan.
“Q Michigan?
“A Yes, sir.
“Q All right, in trying to locate Jimmy Martinez or Jimmy Levine, approximately what amount of time did you use or expend to try to locate him in this case?
“A In this case approximately two hours; maybe three.
“Q All right. Now, if the Court were to give you the opportunity to further try to find this witness, what avenues would you take in trying to locate him?
“A I would have to go back over and contact the same people that I’ve previously contacted and the addresses that I’ve previously contacted that we have on him that I’ve previously checked before.
“Q From your experience in the past in trying to locate this witness, do you think that these efforts would prove fruitful?
“A No, sir.”

From appellant’s investigator’s testimony it appears that the witness Levine was beyond the jurisdiction of the court in a distant state. His address, if any, was unknown. There is nothing in the record to indicate that the witness’ attendance could be secured by a continuance.

If the evidence does not indicate a probability that the witness can be secured by a postponement, or if it appears that a continuance due to the absence of the witness would delay the trial indefinitely, the motion may be properly denied. Salinas v. State, 542 S.W.2d 864 (Tex.Cr.App.1976); Zamora v. State, 158 Tex.Cr.R. 85, 253 S.W.2d 277 (1952); Tuck v. State, 155 Tex.Cr.R. 113, 231 S.W.2d 436 (1950).

Moreover, it is not necessary to pass upon the inadequacy of a motion for continuance where there is no motion for new trial alleging the failure of the court to grant the continuance and no affidavit of the missing witness or a showing under oath from some source that the witness would actually testify to the facts set out in the motion for new trial. Lapp v. State, 519 S.W.2d 443 (Tex.Cr.App.1975); Fields v. State, 495 S.W.2d 926 (Tex.Cr.App.1973); see also Article 29.06, V.A.C.C.P.

Appellant’s motion for new trial does not complain of the trial court’s alleged error in denying the motion for continuance. There is no affidavit of the missing witness Levine. The only testimony elicited during the motion hearing concerning what facts the absent witness Levine would testify to is as follows:

“BY MR. CALLAHAN (counsel for appellant):
“Q Would you state your name for the record?
“A (Appellant): Ernest Ortega Varela.
“Q Ernest, I have one question for you: You have testified earlier in the trial. What I would like you to tell the Court and for the record, Mr. Levine was present at the time while you were with Officer Chevera?
“A Yes, sir, he was.
“Q Okay. Would Mr. Levine’s testimony support your testimony in the trial?
“A He was there and he might say something that I don’t know what he’s going to say, but he was there and the transaction was through him; so he was there.
“Q And he’s the only witness that you have that’s available to you to prove your side of the story?
“A Yes, sir.”

We hold that such testimony is ambiguous at best and is insufficient to show that Levine would actually testify to facts favorable to appellant.

The third ground of error is overruled.

In ground of error number five appellant complains that the following rulings of the trial court in sustaining the objections to the defense counsel’s questions resulted in a comment on the weight of the evidence and denied appellant a fair trial.

“Q (Defense Counsel): What was the $75.00 for?
“A (Officer Doyal): I do not know.
“Q Could it have been to pay Mr. Levine to leave town?
“MR. RYMAN (Prosecutor): Your Honor, I object.
“THE COURT: Sustained.
⅜ ⅜ ⅝ ⅜ ⅜ ⅝:
“Q (Defense Counsel): And was Lieutenant Slocum aware of the working relationship between Mr. Levine and Officer Chevera?
“THE COURT: Do you have an objection?
“MR. RYMAN (Prosecutor): It calls for a conclusion on the part of this witness.
“THE COURT: Sustained.
* ⅝: * ⅜: * *
“Q (Defense Counsel): Have you undergone any rehabilitation or any type of a cure to help you to get over your addiction?
“MR. RYMAN (Prosecutor): Your Honor, we object to this as being irrelevant and immaterial in this case.
“THE COURT: Sustained.”

The rulings first and third, supra, complained of were simply rulings on objections interposed by counsel. Appellant’s counsel interposed no objection to the alleged comment of the court when it requested whether the State had an objection, and, therefore, nothing is presented for review. Calverley v. State, 511 S.W.2d 60 (Tex.Cr.App.1974); Jenkins v. State, 488 S.W.2d 130 (Tex.Cr.App.1972).

Further, to constitute reversible error, the comment of the court must be reasonably calculated to prejudice the defendant’s rights. Abies v. State, 519 S.W.2d 464 (Tex.Cr.App.1975); Hernandez v. State, 507 S.W.2d 209 (Tex.Cr.App.1974). Clearly, since the rulings did not amount to a comment on the weight of the evidence, they could not have been reasonably calculated to prejudice appellant’s rights.

Appellant’s ground of error five is overruled.

In ground of error number six appellant contends the trial court erred in failing to instruct the jury that remarks made by the prosecutor during jury argument were not to be considered as evidence. Appellant complains that such failure was error in light of the fact that such an instruction was given regarding appellant’s counsel’s jury argument.

Appellant’s contention is without merit. The record reflects that the court’s admonishment was directed to the jury argument of both the prosecutor and defense counsel.

“THE COURT: ... And after you hear summations, the jury will retire to deliberate. And you will take this charge with you to read it at your leisure. I will admonish you and tell the jury at this time that whatever the State attorneys say or the Defense attorney tells the jury now, that they are not testifying under oath. And so their statements are not to be considered as evidence. They are summing up as they recall the testimony, and you are not to consider their summations as evidence in the case. However, counsel for both sides can make reasonable deductions from the evidence as they heard it. But you will decide the issue in this case of guilt or innocence from what you remember of the case.”

Appellant’s sixth ground of error is overruled.

Appellant in ground seven contends the court erred in denying appellant’s counsel a reasonable second jury argument under Article 36.08, V.A.C.C.P.

Article 36.08, supra, provides:

“The court shall never restrict the argument in felony cases to a number of addresses less than two on each side.”

We have held that where the accused has only one attorney it is within the court’s discretion whether defense counsel may make more than one argument to the jury. Pryor v. State, 449 S.W.2d 482 (Tex.Cr.App.1969). Article 36.08, supra, does not give the accused the right to rebut the closing argument of the State.

No abuse of discretion has been shown; ground of error number seven is overruled.

Appellant finally complains the trial court erred in failing to grant a new trial due to newly discovered evidence. The evidence which appellant says “is so material that it would have changed the results of the trial” was the following testimony of Officer Slocum given at the hearing on the motion for new trial:

“Q (Mr. Callahan): I have a couple of more questions, Lieutenant Slocum. One is on the other side that the State just asked you. You do not have any knowledge that Mr. Levine’s testimony would probably be contradictory to what Mr. Chevera has stated, isn’t that correct?
“A (Lt. Slocum): I really don’t know what Mr. Levine would testify to, you know.
“Q You don’t have knowledge of the fact that Mr. Levine would possibly testify that Officer Chevera lied in his report?
“A It’s a possibility that he could.”

In Myers v. State, 527 S.W.2d 307 (Tex.Cr.App.1975), we stated:

“In order for a new trial to be granted on the basis of newly-discovered evidence, it must be shown that such evidence was in fact newly-discovered, that it was material, that the failure to discover the evidence sooner was not due to lack of diligence on the part of the appellant, that the new evidence was probably true, and that such evidence would probably produce a different result at another trial. . . .”

See also Williams v. State, 504 S.W.2d 477 (Tex.Cr.App.1974). Article 40.03(6), V.A.C. C.P.

We hold that such testimony does not amount to newly discovered evidence that would probably produce a different result at another trial. Slocum’s testimony merely reflects his recognition of the fact that since he had no knowledge of what Levine’s testimony would be, it was possible that it could impeach Officer Chevera’s testimony.

Appellant’s eighth ground of error is overruled.

The judgment is affirmed.”

ROBERTS, Judge,

dissenting.

The following is an opinion that constituted the position of a majority of the members of this Court when it was comprised of five judges. That majority, in light of the increased size of the Court, now comprises a minority. The current majority opinion blindly sanctions improper state action and reveals a distressing insensitivity to due process notions. Judges should not forget what they know as men, but clearly this is what the majority have done. I dissent:

“This is an appeal from a conviction under our former Penal Code for the sale of a narcotic drug. The trial judge assessed the appellant’s punishment at twelve years’ confinement in the Texas Department of Corrections.

The appellant’s contentions are numerous. Due to our disposition of this case, however, we need only consider appellant’s contention that he was denied his right to compulsory process of witnesses by the State. We reverse.

The testimony adduced at trial reveals that on June 15, 1972, Officer Chevera of the San Antonio Police Department met with an informant, Jimmy Levine a/k/a Jimmy Martinez. They drove to the corner of Somerset and Stonewall in San Antonio where they parked their car. Chevera and Levine encountered the appellant - on the corner and initiated a conversation with him. During the conversation, the appellant asked Chevera if he wanted to “score” some heroin. Chevera responded that he did.

Pursuant to the appellant’s instructions, Chevera, Levine and the appellant then drove to the corner of Guadalupe and Cíbo-lo. While en route, Chevera gave the appellant $30 for the heroin. When they arrived at the corner, the appellant sighted a person identified as “El Chueco.” The appellant motioned or called for “El Chueco” to come to the car, which he did.

The appellant and “El Chueco” then had a discussion. After their discussion, “El Chueco” entered the car and the four men, under the direction of “El Chueco,” proceeded to the 200 block of Elvira.

When the four men arrived at the 200 block of Elvira, “El Chueco” left the car. Chevera, Levine and the appellant remained in the car. “El Chueco” subsequently returned to the car, handed an object to the appellant, and then left. The appellant then handed a balloon to Chevera. The balloon contained a substance later identified as heroin.

The appellant testified at trial that Chev-era and Levine had initiated the offense, that he was not predisposed to deliver heroin to Chevera, but that he was induced to deliver heroin to Chevera by Chevera and Levine.

Prior to trial, the appellant filed a motion for a continuance. Articles 29.03, 29.06, Vernon’s Ann.C.C.P. As grounds for the motion, the appellant alleged the absence of two material witnesses, Jimmy Levine a/k/a Jimmy Martinez, and Officer Slocum of the San Antonio Police Department. The motion stated that despite the efforts of a court-appointed private investigator, the appellant had been unable to locate either of the two witnesses; that the witnesses had been subpoenaed at their last known addresses; that the testimony of Levine would substantiate and corroborate the appellant’s anticipated defense of entrapment; that Slocum’s testimony would establish that Levine had left the jurisdiction of the court and Texas after receiving consideration from the San Antonio Police Department; and that Levine and Slocum’s testimony would demonstrate that the State had attempted to deprive the appellant of his right to compulsory process of witnesses. The motion was denied and neither witness was present at the trial. The State denied any knowledge of Levine’s whereabouts.

At a hearing on appellant’s motion for a new trial, Slocum was called by the appellant. He testified that Levine had been a paid informer for the San Antonio police for a period of approximately 90 days. During that period of time, Levine had been paid approximately $4,000.

Prior to September 1972, Officer Slocum informed Levine of a narcotics roundup. Levine responded that he was going to leave town, but that he did not have any money. Slocum replied that he thought it was a good idea to leave town, and that he would get Levine $75 to help him. Subsequently, Slocum gave Officer Doyal of the San Antonio police $75 to deliver to Levine for eating money. The payment to Levine was authorized by Slocum’s superior, Captain Dupree.

The appellant contends that the State’s action in paying Levine $75 to assist him in leaving town denied the appellant his right to compulsory process of witnesses. In Sigard v. State, 537 S.W.2d 736 (Tex.Cr.App.1976), and White v. State, 517 S.W.2d 543 (Tex.Cr.App.1974), we addressed similar contentions and held adversely to the appellant’s position. However, “[a] past mistake on the part of the Court is not a justification for committing the same mistake again.” Perez v. State, 537 S.W.2d 455, 458 (Tex.Cr.App.1976) (Dissenting Opinion of Judge Douglas).

In Sigard, the dissenting opinion stated:

“The majority’s apparent reliance, in reaching its decision, on the amount of the money given the missing witness by the State surprises me. Instead of asking whether the State’s action was improper, the majority asks how much money was paid. Is the Court today holding that State action that successfully contributes to the disappearance of a material defense witness presents reversible error only if the State paid the entire bill? How much money paid to the witness would have changed the disposition of this case?
“The case should not turn on how much money was paid but, instead, on whether the action was successful and, if so, whether the State participated at all. The appropriate analysis for disposition of the issue is that set out in White v. State, supra, in the majority opinion on original submission. When a defendant asserts denial of compulsory process on the basis of State action rendering the witness unavailable, the relevant inquiries are (1) materiality of the witness, (2) timely pursuit by the defense, (3) knowledge of the materiality of the witness at the time of the State’s action, and (4) improper action attributable to the State contributing to the witness’ unavailability.”

We are convinced that this fourfold test constitutes the proper inquiry. Of course, none of these factors by itself is either a necessary or sufficient condition to a finding that a defendant has been deprived of his right to compulsory process of witnesses. Rather, they are related factors which, in our opinion, must be considered together in a balancing process.

First, it does appear that Levine was a material witness. In the present case, Levine could have either sustained or refuted the appellant’s allegations of entrapment. In fact, Levine was a material fact witness. James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973).

Second, the appellant timely pursued the identity and location of the paid informer Levine. In July 1975, the appellant requested a court-appointed private detective to assist in the preparation of the defense. The trial judge granted this motion on July 18, 1975. The appellant’s trial counsel instructed the private investigator to attempt to ascertain the identity of the informer. During August, 1975, the private investigator tentatively identified the informer as Jimmy Levine a/k/a Jimmy Martinez. On September 2, 1975, the State revealed the names and last known addresses of Jimmy Levine and Officer Slocum. Subpoenas were issued for Levine and Slocum on September 2, 1975. On September 3, 1975, the appellant’s motion for continuance was filed. After a hearing was held on the motion, it was denied by the trial judge. The trial on the merits began on September 3,1975. Although it can be argued that the appellant should have issued citation for Levine at an earlier date, the record reflects that he did so as soon as the State revealed Levine and Slocum’s names and last known addresses. The appellant timely pursued Levine’s presence at trial.

Third, the State was well aware of Levine’s materiality in September 1972. Slocum testified that he was aware that Levine was a participant in at least a hundred cases. More importantly, Slocum testified that Levine and Officer Chevera were explained the law of entrapment. It is inconceivable that when Slocum told Levine that the narcotic roundup would occur he was not aware that Levine might be a material witness to some of the cases. Indeed, Slocum acknowledged that Levine, or any informant for that matter, might be able to testify and refute false allegations by an undercover policeman. Therefore, the record reflects that Slocum knew that Levine was a material witness when he told Levine he would give him the money.

Finally, the State did engage in improper action contributing to the witness’ unavailability. The record does not reveal that any agent of the State instructed Levine to leave town for the purpose of concealing evidence and depriving the appellant of the right to compulsory process. The record, however, does reflect that Slocum knew Levine was an active participant in making cases with Chevera, and that despite this knowledge, he actively participated in facilitating and encouraging Levine’s departure. This participation included informing Levine of the. narcotic roundup, Slocum’s approval of Levine’s plan to leave San Antonio, Slocum’s promise of money to assist in Levine’s departure, and the delivery of the money by Officer Doyal to Levine. Moreover, the State’s failure to obtain the intended future address of Levine, or even inquire into his intentions as to future residences, constitutes improper action by omission attributable to the State.

Considering all four factors above, it is clear that the appellant was denied his right to compulsory process under Article I, Section 10 of the Texas Constitution and the Sixth Amendment of the Constitution of the United States. Accordingly, we overrule our previous holdings in White v. State, supra, and Sigard v. State, supra.”

The judgment should be reversed and the cause remanded.

ODOM and PHILLIPS, JJ., join in this dissent.

      . The dissenters would construe this testimony in the context of the analysis used in the dissenting opinion in Sigard v. State, 537 S.W.2d 736 (Tex.Cr.App.1976). Insofar as the amount paid Levine is concerned, the dissenting opinion in Sigard misses the mark. The amount of money given to Levine was not there and is not here of any real significance except as some indication that Levine's departure was not likely motivated by such a small sum.

      . The crux of the dissenting opinion is the characterization of Slocum’s action as improper State involvement which deprived appellant of his right to compulsory process. The dissent admits the record cannot support an assertion that any agent of the State instructed Levine to leave town in order to conceal evidence or deprive appellant of the right to compulsory process. Upon only a showing that Slocum knew Levine could be a potential witness at some uncertain future date, the dissent would, in effect, impute an improper motive to the State. Such a presumption of illegal State action goes too far on too little evidence. While the dissent may colorfully imagine that Slocum “actively participated in facilitating and encouraging Levine’s departure,” the record speaks plainer: Slocum gave Levine $75.00 for “eating money” and agreed with Levine’s own prior assessment that he should leave town for awhile.
      As for the dissent’s claim that failure to obtain Levine’s future address was an improper omission by the State, we still have no evidence that such inaction was motivated by the desire to suppress evidence or deprive appellant of a witness. Moreover, the Sixth Amendment does not require the State to insure that a defendant’s attempts to secure witnesses will succeed. All that is required is that process issue and due diligence be exercised in a good faith attempt to secure service of process. United States v. Bolden, 461 F.2d 998 (8th Cir. 1972); Maguire v. United States, 396 F.2d 327 (9th Cir. 1968).

      . Article 725b, Section 2(a), Vernon’s Ann.P.C.

      . Trial was before a jury, but the appellant declined to exercise his option to have the jury assess punishment. Article 37.07(2)(b), Vernon’s Ann.C.C.P.

      . The motion for continuance satisfied the requirements of Articles 29.03, 29.06, and 29.08, Vernon’s Ann.C.C.P.

      . The appellant’s motion for continuance and the testimony at a hearing on the motion reveal that citation was not issued for Levine and Slocum until September 2, 1975, the day the State revealed their involvement in the case. On September 3, 1975, the day that the trial on the merits began, the appellant filed his sworn motion for continuance.
      The testimony further reflects that the appellant, through the effort of his court-appointed private investigator, learned of Levine’s identity sometime in August, 1975.

      .Slocum testified that Levine was paid less than $50 per case.

      . See White v. State, supra, and Sigard v. State, supra, for similar instances of Levine’s materiality as a witness.

      . According to Officer Doyal’s testimony, Levine was paid only $25 per case. Thus, if Slocum’s testimony that Levine was paid over $4,000 was correct, then Levine was involved in over 160 cases.

      . We would add that if the State wanted an informant out of town solely for reasons of the informant’s safety, it is not an onerous burden to require the State to obtain the informant’s intended future address. Moreover, in our original opinion in White v. State, supra at 548, we stated:
      ‘Whether Slocum’s sole intent was for Levine’s safety (which is not contended) is irrelevant. Just as the State’s interest in confidentiality of an informer must yield in a proper case, despite its interest in encouraging and protecting him, so too must the informer be made available in a proper case. Other means are available for the protection of a material witness than sending him out of town and rendering him totally unavailable to either party.’

      . What we said in our original opinion in White v. State, supra at 548, is equally applicable here:
      “What was here the case . . . was participation by the State in action which rendered a known material witness unavailable to appellant for the exercise of his constitutional right ‘to present his own witnesses to establish a defense,’ Washington v. Texas [388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019], supra. It is not the action of the witness acting alone, but the State’s participation which constitutes the harm and requires reversal.”


author: W. C. DAVIS, Judge.

text:
    Donald RIGGS, Appellant, v. The STATE of Texas, Appellee. Robert PHILLIPS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 54059, 54060.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 8, 1978.

      Robert N. Eames, Jerry A. Garrett, Den-ton, for appellants.
    John E. Lawhon, County Atty., and Mervin B. Waage, Asst. County Atty., Denton, for the State.
    Before THOMAS G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is a joint appeal from separate convictions for misdemeanor theft of property over the value of $20.00 and less than $200.00 under V.T.C.A., Penal Code, Sec. 31.03(d)(3). The causes were consolidated and tried before the court on March 25, 1976. Each appellant was found guilty and punishment assessed at thirty days’ confinement in jail. Appellants were sentenced on April 22, 1976, at which time notice of appeal was given.

The information under which each appellant was tried alleged:

“ . . did then and there knowingly and intentionally appropriate property, other than real property, to-wit: a CB antennae of the value of more than $20 and less than $200 without the effective consent of James H. Cobb the owner thereof and with intent to deprive James H. Cobb of said property . . . ”

Appellants urge the insufficiency of the evidence as to the value of the property stolen. The record reflects that no proof was offered as to the specific value of the stolen antenna, only an aggregate value of $29.95 for the antenna kit, which contained the antenna, as well as the trunk mount and a co-axial cable. The aggregate value of $29.95 does not prove that the CB antenna alleged in the information exceeded $20.00 in value. There was no breakdown of the value of each item involved in the “kit” and it was undisputed that only the antenna part was stolen.

In Wilson v. State, 536 S.W.2d 375 (Tex.Cr.App.1976), this Court stated in a similar case:

“It is axiomatic, however that a conviction for theft cannot rest in whole or in part upon the theft of property not alleged in the indictment to have been stolen. The indictment in the instant case alleged theft of a camera only, not any case or accessories.”
“When the only testimony as to total value states an amount including the value of items not alleged to have been stolen, there is in effect no evidence whatsoever that the value of the items so alleged was over the amount necessary to support the conviction. To permit a conviction to stand where the State has utterly failed to present any evidence upon an essential element of the offense is a denial of due process of law.”

The judgments are reversed and the causes remanded.


author: ODOM, Judge.

text:
    Thomas Coye SISSON, Appellant, v. The STATE of Texas, Appellee.
    No. 55670.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 8, 1978.

      Weldon Holcomb, Tyler, for appellant.
    Harry R. Heard, Dist. Atty. and Ned C. Butler, Asst. Dist. Atty., Gilmer, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for delivering a controlled substance, to-wit: cocaine. Trial was before a jury and punishment was assessed at seventy five years.

Appellant contends that the trial court erred in allowing the introduction of State’s Exhibit No. 1 which was an evidence envelope on which appeared the following (handwritten portions emphasized):

“NARCOTICS SECTION
INVESTIGATION NO. IC-75-0001
DEFENDANT(S) Sisson. Cove
DESCRIPTION OF DEFENDANT(g) white male, approximately 45 years of age approximately 5' 9" tali. 180 pounds, gray hair
VIOLATION Delivery of a Controlled Substance: namely cocaine
DATE & TIME OF OFFENSE 11-11-75 8:50 P.M. LOCATION OF OFFENSE Gilmer. Texas
DESCRIPTION OF ENCLOSED EVIDENCE Three 131 tin foil packages, each containing a brownish powder substance
REMARKS _
AGENT Dannv Green # 2549
WITNESSES _
SUBMITTED BY Dannv Green
ON 11-12-75 at M.
VIA Personally
/s/ Dannv Green
Signature”

The record reflects that appellant timely objected to the introduction of the exhibit on the grounds that it constituted hearsay.

In numerous opinions we have discussed the harm occasioned by the introduction of evidence envelopes or documentary reports over objections on which appear written notations that constitute inadmissible hearsay. See Battee v. State, Tex.Cr.App., 543 S.W.2d 91; Nelson v. State, Tex.Cr.App., 507 S.W.2d 565; Coulter v. State, Tex.Cr.App., 494 S.W.2d 876; Rodriguez v. State, Tex.Cr.App., 494 S.W.2d 864. Our reasoning and position in this regard has not changed. In the present case, not only had the proper predicate not been laid for the evidence envelope’s introduction under the Business Records Act, Art. 3737e, V.A. C.S., but again, as we have held before, an exhibit of this nature lacks “the indicia of reliability necessary for its admission . .” Coulter, supra, at p. 883.

We cannot agree with the State’s contention that the error was rendered harmless by the fact that the appellant had an opportunity to thoroughly cross-examine the narcotic agent who had filled out the information on the envelope. In Coulter, supra, we agreed with the reasoning in United States v. Brown, 451 F.2d 1231 (5th Cir. 1971) wherein the court stated:

“[E]ven though ‘the persons who made the memoranda were present at the trial and were tendered for cross-examination (and) that the memoranda were merely cumulative of other evidence properly in the record and that there was overwhelming evidence properly received of the defendant’s guilt’, we cannot say that the error did not influence the jury, to the defendant’s detriment, or even that it had but very slight effect.”

In Brown, supra, quoting from United States v. Ware, 247 F.2d 698, 700 (7th Cir. 1957), the court reasoned that even if the government had established that the necessary predicate required by the Shopkeeper’s Rule, 28 U.S.C.A., Sec. 1732 (the federal counterpart to Art. 3737e, V.A.C.S.) had been laid, evidence of this nature would be inadmissible because it:

“. . . laek[s] the necessary earmarks of reliability and trustworthiness. [Its] source and the nature and manner of [its] compilation unavoidably dictate that [it is] inadmissible under section 1732. [It is] also subject to the objection that such utility as [it] possesses] relates primarily to prosecution of suspected lawbreakers, and only incidentally to the systematic conduct of the police business. Cf. Palmer v. Hoffman, supra, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645.” Coulter, supra; Battee v. State, supra.

Reversible error was committed by the introduction of the exhibit.

There exists another reason why the instant conviction must be reversed. At the punishment hearing, in cross-examining the appellant’s character witnesses with “have you heard” questions, the State’s Attorney asked the following question:

“Have you heard that on August the 7th, 1976, this Defendant with Randy Walter, Kay Miller and Donna Rana did in fact, smoke marihuana together, have you heard that?” (Emphasis added.)

In Moffett v. State, Tex.Cr.App., 555 S.W.2d 437, we held that “have you heard” questions could legitimately be asked even if they contained details of the rumored event alluded to; however, a question which injected an assertion of fact was clearly improper. We stated:

“[T]he question [in each of earlier cases discussed] was improper, not for excessive detail in describing the rumored event inquired about, but because the question, properly begun, went off-course before its completion by the use of other words in the middle of the question that had the effect of negating the unassertive “have you heard,” and replacing it with words asserting the matter as fact.” at p. 442.

Each case must be reviewed on its own facts in making the determination of whether the question asked is improper. If found to be improper, the circumstances of each case will determine if the harm can be cured by an instruction to disregard. Moffett v. State, supra.

In the present case we find the aforementioned question to fall squarely within the prohibition described in Moffett, supra. The use of the words “did in fact” in the middle of the “have you heard” question had the undeniable effect of “asserting the matter as fact.”

We further hold that the error does not fall within the purview of Carey v. State, Tex.Cr.App., 537 S.W.2d 757, where the objection was sustained and a lengthy instruction to the jury to disregard was given, because in the instant case appellant had secured an adverse ruling from the court of “Your objection will be a continuing objection which will be overruled,” just two questions earlier. This ground presents reversible error.

For the above reasons, the judgment is reversed and the cause remanded.


text:
    Dorriss TINKER, Appellant, v. The STATE of Texas, Appellee.
    Nos. 56328, 56329.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 8, 1978.
    Donald B. Dailey, Jr., Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty. and Eric Brown, Asst. Dist. Atty., Nueces Co., Corpus Christi, for appellee.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is a joint appeal from judgments forfeiting bail bonds. The judgments nisi entered on December 22, 1976, reflect that on October 22, 1976, principals Manuel Martinez, Jr.’s and Enedina R. Rosales’ bonds of $2,500 each were forfeited for failure to appear when their causes were called for trial. Appellant-surety filed general denials on December 27, 1976. On April 20, 1977, the State filed motions for summary judgment which were controverted by her. On May 6, 1977 a hearing was held on the State’s motions. Prior to considering the motions for summary judgment, the State moved to dismiss the judgments nisi. The court overruled the motions to dismiss, but continued the hearing on the State’s motions to June 3, 1977, at which time the State’s motions for summary judgment were granted subsequent to the State’s reurging its intent to dismiss the judgments nisi. On June 13, 1977, appellant-surety filed motions for new trial which were overruled by operation of law July 29, 1977. Appeals were perfected by the filing of. appeal bonds on August 17, 1977.

The appellant brings forth two points of error.

I. The trial court abused its discretion in refusing to grant plaintiff’s (State’s) motions for non-suit.

II. The trial court erred in granting summary judgments for the plaintiff since the appellant-surety’s controverting affidavits raised a fact issue as to whether good cause was shown for the non-appearance of the defendant-principals.

Because of our disposition of Point of Error I, we do not reach II.

The State argues alternatively that either it never did request non-suits or, if it did Rule 164, “Non-Suit” Tex.R.Civ.P., does not apply to bail bond forfeitures.

The records reflect the following exchange prior to the hearing on the State’s motions for summary judgment on May 6, 1977:

“STATE: Your Honor, this was a case where the State was prepared to present a motion to dismiss with costs to this defendant.
“COURT: Dismiss what?
“STATE: The judgment nisi.
“COURT: No, I’m not going to accept that. Again you are going to start treating everybody the same.
“STATE: Well, just to simplify matters to inform the court both Mr. Tinker’s (defense attorney) cases, Martinez and Rosales, arise out of the same criminal action. We are prepared to dismiss.
“COURT: All right, your motion, if it is such, is overruled . . .”

The docket sheet entries of May 6,1977 are: “Motion to dismiss, overruled.”

The hearing was continued to June 3, 1977, when the following occurred:

“STATE: Your Honor, as the Court is aware, last setting the State did present motions to dismiss and on the grounds that the criminal cases were about to be dismissed, we presented motions to dismiss. Frankly, we still would not have any objection to that however, if the Court is opposed, I guess we will have to proceed. (Emphasis added)
“COURT: Mr. Tinker was given six months to find those two people, I believe in giving bondsmen time to look for their people, but after they have not been able to turn them up within a reasonable time, I think they should face up to their obligations.
“STATE: If that is the Court’s attitude, the State will move for summary judgment.”

Clearly, the State moved for dismissals.

The State contends that Rule 164, Tex.R. Civ.P., does not apply to bail bond forfeitures, but cites no authority for this position.

Article 22.10, Vernon’s Ann.C.C.P., “Scire Facias Docket” states:

“When a forfeiture has been declared upon a bond, the court or clerk shall docket the case upon the scire facias or upon the civil docket, in the name of the State of Texas, as plaintiff, and the principal and his sureties, if any, as defendant; and the proceedings had therein shall be governed by the same rules governing other civil suits.” (Emphasis added)

In construing old Article 433, Vernon’s Ann.C.C.P., now Article 22.10, Vernon’s Ann.C.C.P., this Court in Blue v. State, 170 Tex.Cr.R. 449, 341 S.W.2d 917 (1960), on State’s Motion for Rehearing, held:

“A bond forfeiture is a criminal action, but after the entry of judgment nisi all the proceedings, unless otherwise provided, are governed by the same rules as govern in civil cases; that is, by the applicable Rules of Civil Procedure.”

Rule 164, supra, “Non-Suit” reads:

“Upon the trial of any case at any time before plaintiff has rested his case, i. e., has introduced all of his evidence other than rebuttal evidence, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief.”

In Barton v. Pacific Employers Indemnity Co., 522 S.W.2d 128 (Tex.Civ.App., Corpus Christi, 1975; writ ref’d N.R.E.), it was said that, generally, a party’s right to take a non-suit pursuant to Rule 164, supra, is absolute, but the privilege is not without limitation, it is subject to a good faith exception in non-workmen’s compensation cases and the (now statutory) counterclaim provision.

The judgments are reversed and the causes remanded.


author: ONION, Presiding Judge. ODOM, Judge,

text:
    Ex parte Steven ABAHOSH.
    No. 56560.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 8, 1978.
    Paul W. Pearson, Dallas, for appellant.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ONION, Presiding Judge.

This appeal arises out of a habeas corpus proceeding in Criminal District Court No. 3 of Dallas County wherein the court denied relief. Petitioner contends the trial court’s refusal to allow appeals from his two convictions and to set bail pending those appeals constituted an ex post facto application of procedural rules which were not in’ effect at the time of his guilty pleas. He urges that he should be released on bail pending the final disposition of his appeals.

The record before this court is meager to say the least. It appears that on August 5, 1977 the appellant in bench trials entered guilty pleas to the offenses of felony theft and possession of dilaudid. His punishment in each case was assessed at six (6) years’ imprisonment upon recommendation of the State as a result of a plea bargain. The judgments in both eases are dated August 5, 1977. The sentences were not imposed until September 9, 1977. The reason for the delay does not appear from the record nor does it appear whether or not motions for new trial were filed. Petitioner asserts and the court’s findings reflect that notice of appeal in each case was given on September 9, 1977. However, the court refused to permit the appeals or to set bail.

While the 1977 amendment to Article 44.-02, V.A.C.C.P. (effective August 29,1977) is not mentioned in the court’s order denying relief in the habeas corpus proceeding, it is obvious the court relied upon the same. The order reflects in part that “[n]o motions were filed in either case by either Petitioner or his counsel prior to the entry of his pleas in these cases. No permission to appeal in either case was ever obtained from the trial court.”

Prior to August 29, 1977 said Article 44.-02 provided an absolute right to a defendant to appeal his conviction under certain prescribed rules. The amendment to said Article reads:

“A defendant in any' criminal action has the right of appeal under the rules hereinafter prescribed, provided, however. before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney mav prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial.” Acts 1977, 65th Leg., p. 940, ch. 351, § 1, eff. August 29, 1977. (Underlined portion constitutes the amendment to the statute.)

At the time of the plea bargain, the bench trials upon the guilty pleas, the State’s recommendation as to punishment and the entry of the judgment in each case assessing punishment the aforesaid amendment was not in effect. Said amendment was in effect at the time of the imposition of the sentences and the notice of appeal. The question thus presented is whether, under these circumstances, the trial court had the authority to deny the appeals upon the basis of the amendment to said Article 44.02. Prior to the said amendment the trial court had no authority to deny an appeal.

Article I, § 16 of the Texas Constitution provides:

“Sec. 16. No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.”

In the Interpretive Commentary to said provision of the State Constitution (Vernon’s Constitution- of the State of Texas, Annotated, Vol. I, pp. 371, 372), it is stated in part:

“An ex post facto law, constitutionally speaking, is one that makes an action done before the passage of the law, and which was innocent when done, criminal, and punishes such action, De Cordova v. Galveston, 4 Tex. 470 (1849); that aggravates a crime, or makes it greater than it was when committed, Holt v. State, 2 Tex. 363 (1847); that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed, Holt v. State, supra; or which changes the rules of evidence, and receives less or different testimony, than the law required at the time of the commission of the offense in order to convict the offender. Holt v. State, supra. Although ordinarily laws changing procedure are not within the inhibition, still if a procedural change is retroactive and results in depriving the accused of substantial protection, it is unconstitutional. Ex parte Roper, 61 Cr.R. 68, 134 S.W. 334 (1911).
“The Texas Constitution goes further than the United States Constitution for the former is not confined to forbidding ex post facto laws, i. e., retroactive penal legislation, but it also lays a ban on any retroactive law. In prohibiting retroactive laws, the Texas Constitution seeks to safeguard rights not guaranteed by other constitutional provisions such as the impairment of the obligation of contracts and due process of law clauses. Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249 (1887).
“A retroactive law is one meant to act on things that are past. As such, a statute is retroactive which takes away or impairs vested rights acquired under existing laws, or creates new obligations, imposes new duties, or adopts a new disability in respect to transactions or considerations already past, and which affects acts or rights accruing before it came into force. Turbeville v. Gowdy, Civ. App., 272 S.W. 559 (1925).”

In addition, there is the general rule that statutes are not to be applied retroactively. Ridyolph v. State, 545 S.W.2d 784 (Tex.Cr.App.1977); Pesch v. State, 524 S.W.2d 299 (Tex.Cr.App.1975). Further, in Jones v. State, 72 Tex.Cr.R. 504, 163 S.W. 81 (1914), it was held that the proper procedure is governed by the laws in force at the commencement of the trial.

At the time of the guilty pleas and the entry of the judgments assessing punishment, appellant’s plea bargain did not give the trial court the authority to nullify his right of appeal. To apply the 1977 amendment of Article 44.02, supra, retroactively merely because there was a delay and the imposition of sentence and the giving of the notice of appeal were after the effective date of the amendment would result in depriving the petitioner of substantial protection — the right of appellate review. See Ex parte Roper, supra. This would be a violation of Article I, § 16 of our State Constitution, and further violate fundamental fairness embodied in “the due course of the law of the land.” Article I, § 19, Texas Constitution.

The relief prayed for is granted. Petitioner is entitled to his appeals though they now be out-of-time appeals. The trial court will now take steps to accord the petitioner his right of appeal in each case in accordance with Article 40.09, V.A.C.C.P.

It is so ordered.

DOUGLAS, J., concurs.

ODOM, Judge,

concurring.

I concur in the conclusion that relief should be granted because application of the amended version of Article 44.02, V.A. C.C.P., to petitioner’s cases would violate the Texas Constitution’s prohibition against ex post facto laws (Art. I, Sec. 16). I do so, however, on different reasoning than that expressed in Presiding Judge Onion’s opinion.

Article 44.02, V.A.C.C.P., as amended effective August 29, 1977, provides:

“A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial.” (Emphasis added.)

Judgments in petitioner’s cases were entered August 5, 1977, prior to the effective date of the amendment to Art. 44.02, supra. The process of applying the new statute, under the emphasized language above (and other conditions in the statute) of necessity requires a consideration of pre-trial events in the judicial process. For petitioner’s cases, this means application of the amended statute to him requires an examination of judicial events prior to August 5, 1977. Application of the statute, by its very terms, reaches to earlier judicial events than any notice of appeal and thus the issue here is not determined by the date of that event. To allow application of this statute to these cases would violate the prohibition against ex post facto laws in that events in the continuous judicial process occurring prior to its effective date would be determinative in the process of its application.

On this basis I concur in the order granting relief.


author: DOUGLAS, Judge,

text:
    Eddie ESCAMILLA, Appellant, v. The STATE of Texas, Appellee.
    No. 53660.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 15, 1978.
    Frank Steelman, Bryan, for appellant.
    W. T. McDonald, Jr., Dist. Atty., J. Bradley Smith and W. W. Torrey, Asst. Dist. Attys., Bryan, for the State.
   DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge,

dissenting.

The majority reissues the mandate without written opinion.

On original submission a majority reversed the conviction on the grounds that the Code of Criminal Procedure did not authorize the issuance of a search warrant for blood and that the evidence was insufficient to support the verdict. Thereafter, the State’s motion for rehearing was overruled by the majority without written opinion. The case is found in Tex.Cr.App., 556 S.W.2d 796. In order to reconsider the question, we withdrew the mandate pursuant to our authority to take such action during the same term at which the original opinion was rendered. See Deramee v. State, 379 S.W.2d 908 (Tex.Cr.App.1964). We should affirm the conviction.

The facts relating to the issuance of the order to submit to a blood test will be summarized. On the evening of June 26, 1975, a truck owned by Bessie Tamez was burglarized. She discovered that the vent window of the truck had been broken and that a rock, a stick and a blue polka-dotted handkerchief were inside the vehicle. The handkerchief was bloodstained.

Appellant had been seen several hours earlier, prior to the commission of the offense, carrying a handkerchief identical to the one found in the truck. When he was arrested that evening shortly after the offense had been discovered, he no longer had the handkerchief in his possession and had blood on his right wrist. He was taken to a Bryan hospital for treatment of a laceration on his arm.

Appellant was charged with burglary of a vehicle. Several months after the crime was committed, the State filed a motion under Rule 167a, Texas Rules of Civil Procedure, seeking to obtain a sample of appellant’s blood to enable the State to determine whether his blood type was identical to that of the blood discovered on the handkerchief in the burglarized vehicle. Rule 167a provides that when the mental or physical condition, including the blood group, of a party is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician upon a showing of good cause and notice to the person to be examined. The district court granted the motion.

Appellant was subsequently taken to the Brazos County Health Unit by a detective pursuant to the order of the court. He was accompanied by his attorney. At the health unit a sample of appellant’s blood was secured by a registered nurse in accordance with standard medical procedures.

In the opinion on original submission, the majority determined that the extraction of blood is a search and seizure within the meaning of Article 1, Section 9 of the Texas Constitution. The Court held that a blood sample cannot be taken in the absence of a search warrant issued in compliance with Articles 1.06 and 18.02, V.A.C.C.P. The Court then reasoned that the district court’s order in this case was illegal because Article 18.02 did not authorize the issuance of a warrant for blood. There is no provision in the Constitution that a search must be authorized in the Code of Criminal Procedure.

The proper disposition of this issue is governed by Article 38.02, V.A.C.C.P., which provides:

“The rules of evidence prescribed in the statute law of this State in civil suits shall, so far as applicable, govern also in criminal actions when not in conflict with the provisions of this Code or of the Penal Code.”

Rule 167a was authorized, and has been approved, by the Legislature. It conflicts with no provision of the Constitution, Code of Criminal Procedure or of the Penal Code and was applicable here. There is no provision in the Constitution that a search must be authorized by the Code of Criminal Procedure. Since ample justification existed for determining whether appellant’s blood type matched that of the blood found on the handkerchief in the burglarized vehicle, we should hold that the district court properly ordered that appellant submit to the blood extraction.

On original submission, the majority found the evidence insufficient on the premise that the evidence of appellant’s blood type should have been suppressed. We should no longer view the record under that constraint.

The record reflects that the burglary occurred between 10:00 p. m. and 10:30 p. m. while the complaining witness, Bessie Ta-mez, was in Ted’s Place. Appellant had left that establishment only minutes before Ta-mez arrived. And only hours before he was in possession of a blue polka-dotted handkerchief which was identical to the bloodstained one found in the burglarized truck.

A forensic serologist testified at trial that the blood on the handkerchief was type A, Rh positive M & N, and that appellant had the same type blood. She further testified that only nine percent of the population had blood of this type.

Roy Veracruz testified that he was a parttime worker at Ted’s and appellant was in the bar drinking on the day in question; that appellant had a blue polka-dotted handkerchief sticking out of his right pocket; that appellant left around 4:40 or 5:00 o’clock in the afternoon and came back around 9:30 and that Bessie Tamez had come into the bar some 10 or 15 minutes after he had left.

She stayed there around 35 to 45 minutes and Veracruz walked her to her truck around 10:30 or 10:40 p. m. She could not unlock the door on the driver’s side. Veracruz saw glass on the seat. He saw a blue handkerchief on the floorboard of the truck and reported it to a patrolman who was coming by. While they were talking, appellant and two of his friends walked into the El Conquistador Tavern and Veracruz said to the officer, “That’s the guy I think this handkerchief belongs to.”

Veracruz testified that he later saw the same handkerchief that appellant had in his pocket in the truck. At the time he saw appellant in the bar there were no cuts on his face, no cuts or bruises, nothing wrong with his arms. While they were at the truck, Veracruz handed the handkerchief, which looked like the one appellant had in his pocket, to the officers.

Bessie Tamez testified that the side door of the truck had been broken into and that there was a part of a knife broken off in the lock. Her purse, which contained two rings, credit cards, a $259 check and two dollars in change, was taken.

Officer Jerry Fickey testified that Roy Veracruz reported the truck had been broken into and handed him a handkerchief. Veracruz initialed it. It had small splotches of blood on it. He also testified that Veracruz pointed out appellant to him.

Officer Fickey noticed the trail of blood leading back toward the U-Tot-Em Store which was near the El Conquistador Club. Veracruz told Fickey where he had seen appellant going. When Fickey opened the door he noticed appellant. Appellant noticed Fickey and put his head down on his arms. He asked appellant to go with him and he took him by the arm and got blood on him from the right wrist of appellant’s arm. Appellant was drinking, had glassy eyes. They arrested him for intoxication.

Appellant offered no evidence at the guilt stage of the trial, but argues on appeal that the evidence offered by the State was not sufficient to prove his guilt “to the weight of a moral certainty.” Under V.T. C.A., Penal Code, Section 2.01, the State had the burden of proving appellant’s guilt beyond a reasonable doubt, not to a “moral certainty.” The evidence in the light most favorable to the State was sufficient to support the jury’s verdict and the court committed no error in overruling the motion for directed verdict.

No reversible error is shown. The judgment should be affirmed.

      . Texas Laws 1977, ch. 237, section 2, at 640, effective August 29, 1977, amended Article 18.-02, V.A.C.C.P. This article now provides for the issuance of search warrants for mere evidence.