author: ODOM, Judge. ONION, Presiding Judge. ODOM, Judge.

text:
    Ex parte Leroy Anthony SHIELDS.
    No. 53479.
    Court of Criminal Appeals of Texas.
    Dec. 22, 1976.
    On Rehearing May 18, 1977.

      Lawrence Beauchamp, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Susan D. Reed and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

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

Petitioner was convicted for driving an automobile without the owner’s consent. His punishment was assessed at two years’ imprisonment. He appealed his conviction and we affirmed the cause in a per curiam opinion. (Cause No. 44,907)

Petitioner urges that we erred in affirming his conviction because we did not have jurisdiction over his cause at the time it was appealed. This assertion is predicated on the fact that the trial court prematurely and improperly pronounced sentence in violation of Art. 40.05 and Art. 42.03, V.A.C. C.P. Specifically, the trial court did not afford the petitioner ten days to file a motion for new trial before sentence was pronounced.

In order to address this claim, we must first review the circumstances surrounding his conviction and subsequent appeal to this Court.

On April 5,1971, the trial court found the petitioner guilty. Petitioner then made application for probation. This application was denied by the court on May 6, 1971. On the same day, the trial court pronounced sentence. On December 14, 1971, the judgment of conviction was affirmed by this Court and the contention urged in this appeal was not raised at that time.

Our mandate was issued on December 30, 1971. This was received by the convicting court on January 31, 1972. A capias was soon issued pursuant to our mandate, but it was not executed until May 1, 1976.

We initially observe that the petitioner did not waive the time permitted him to file a motion for new trial. This is reflected by the record and also by the findings of fact made by the judge at the evidentiary hearing conducted on petitioner’s application for post-conviction relief.

If we did not have jurisdiction to affirm the conviction, the decision rendered in regard to the appeal is void.

We conclude that the petitioner did not waive the time allowed by Art. 40.05, supra. The fact that over thirty days elapsed between the court’s determination of guilt and the imposition of sentence is not controlling because the petitioner applied for probation. In Woods v. State, Tex.Cr.App., 532 S.W.2d 608, we stated:

“ . . . the time for filing a motion for new trial or motion in arrest of judgment does not begin to run until the date the court either grants or denies probation.” 532 S.W.2d at 612.

In the case at bar, the trial court imposed sentence on the same day it denied probation. This action violated the provisions of Art. 40.05 and Art. 42.03, supra, because no waiver was entered by petitioner.

Our affirmance of petitioner’s conviction was incorrect because we did not have jurisdiction to entertain the appeal due to the premature imposition of sentence by the trial court. Middleton v. State, Tex.Cr.App., 537 S.W.2d 25; Mendez v. State, Tex.Cr.App., 535 S.W.2d 365; Woods v. State, supra. Our only proper action in such a situation is to dismiss the appeal.

We hold that the petitioner is entitled to relief. Since we did not have jurisdiction to affirm petitioner’s conviction, our mandate in regard to his cause must be quashed. Any warrant issued in compliance with our mandate, therefore, is also quashed.

The petitioner’s request for relief is granted. Petitioner must be given an opportunity, as provided by Art. 40.05, supra, to file a motion for new trial. The trial court may then enter the sentence.

It is so ordered.

OPINION

ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding which was filed and submitted. On original submission this court held that the sentence imposed in 1971 was untimely pronounced and, though this question was not raised, this court did not have jurisdiction to affirm the direct appeal in 1971. The affirmance was set aside, the mandate withdrawn and the cause was remanded to the trial court for re-sentencing. On rehearing the State vigorously urges that the sentence was voidable only, not void, and hence not subject to collateral attack. We agree and grant the State’s motion for rehearing.

The record reflects that the petitioner entered a plea of guilty before the court to the offense of driving a motor vehicle over the value of $200.00 without the owner’s consent on April 5, 1971. Punishment was assessed at two years’ imprisonment, and the judgment was entered. In view of petitioner’s motion for probation, the court caused a pre-sentence report to be made. On May 6,1971 the court denied the motion for probation and imposed sentence on that date. The record reflects no objection by petitioner or his retained counsel to the court imposing sentence, and sentence shows that when the petitioner was asked whether he had anything to say why sentence should not be pronounced against him “he answered nothing in bar thereof.” See Article 42.07(3), Vernon’s Ann.C.C.P.

Notice of appeal was given by retained counsel and appellant was released on bond pending appeal. There was no attempt to have the sentence set aside for the purpose of filing motions for new trial or in arrest of judgment. On December 14, 1971 the judgment of conviction was affirmed by this court in a per curiam opinion in Cause No. 44,907. The appellate record consisted only of the clerk’s transcript. There was no transcription of the court reporter’s notes. The opinion noted that no brief had been filed on appellant’s behalf setting forth grounds of error as required by Article 40.-09, Vernon’s Ann.C.C.P. No question of indigency was presented.

The mandate of this court was issued on December 30,1971. A file mark was placed thereon by the convicting court on January 31,1972, and a capias issued on February 2, 1972. For reasons not explained, it was not executed until May 1, 1976.

On May 14, 1976 appellant filed in the convicting court a post-conviction application for habeas corpus, followed by an amended application on May 17, 1976. Appellant contended that since there was no waiver of the time in which to file a motion for new trial or in arrest of judgment he had been deprived of an opportunity to file such motions, that sentence was untimely pronounced, and that the Court of Criminal Appeals should have dismissed his appeal rather than having affirmed it. He also contends that he had been deprived of the effective assistance of counsel on appeal and subjected to cruel and unusual punishment. Following an evidentiary hearing the proceedings were forwarded to this court. See Article 11.07, Vernon’s Ann.C. C.P. The trial court found that the record did not reflect a waiver of the ten days in which to file the motions for new trial or in arrest of judgment.

As earlier noted, this court on original submission of this habeas corpus proceeding agreed with appellant’s contention that the sentence was untimely pronounced, depriving him of an opportunity to file motions for new trial or in arrest of judgment, although to this date appellant has never advanced any grounds that could be advanced to support such motions. The State on rehearing has urged that we reconsider our holding and the cases upon which it was based. We shall do so.

A sentence, as defined by Article 42.02, Vernon’s Ann.C.C.P., is required to be pronounced in all cases where sentences are applicable before an appeal is taken, except in death penalty cases and in probation cases where imposition of sentence is suspended. See Article 42.04, Vernon’s Ann.C. C.P. In all cases where a sentence is required to be pronounced before an appeal is taken, such sentence must be included in the appellate record. Article 40.09, § 1, Vernon’s Ann.C.C.P. Where the sentence does not appear in the appellate record, this court is without jurisdiction and the appeal must be dismissed. See, e. g., Clemons v. State, 414 S.W.2d 940 (Tex.Cr.App.1967); Herbort v. State, 422 S.W.2d 456 (Tex.Cr.App.1967); Black v. State, 473 S.W.2d 469 (Tex.Cr.App.1971); Baker v. State, 491 S.W.2d 887 (Tex.Cr.App.1973).

As to the time for pronouncing sentence in the trial court, Article 42.03, Vernon’s Ann.C.C.P., provides in part:

“If a new trial is not granted, nor judgment arrested in felony and misdemeanor cases, the sentence shall be pronounced in the presence of the defendant except when his presence is not required by Article 42.02 at any time after the expiration of the time allowed for making the motion for a new trial or the motion in arrest of judgment.” (Emphasis supplied.)

Article 40.05, Vernon’s Ann.C.C.P., provides that a motion for new trial shall be filed 10 days after conviction, and Article 41.02, Vernon’s Ann.C.C.P., provides that a motion in arrest of judgment must be made within 10 days after conviction.

It is clear from these statutes that the sentence should not be pronounced until after the expiration of the time for filing such motions. If no such motions are filed within the time period prescribed, then sentence may be pronounced. See Adams v. State, 440 S.W.2d 844 (Tex.Cr.App.1969). If such motions are timely filed, sentence should not be pronounced until such motions have been overruled following a hearing or by operation of law.

None of the above does not mean a defendant may not after conviction waive such time allowed by law to file the above described motions and agree to accept imposition of sentence at an earlier time. See Article 1.14, Vernon’s Ann.C.C.P.; Adams v. State, supra.

In Adams v. State, supra, in which sentence was pronounced the same day the case was tried and judgment entered, there the court wrote in an opinion on direct appeal:

“If there was no valid waiver the sentence was improperly and untimely entered and this court is without jurisdiction in this type of case to entertain this appeal. Article 42.04, V.A.C.C.P.; Yordy v. State, Tex.Cr.App., 425 S.W.2d 352.” (Emphasis supplied).

For a want of a proper sentence in Adams, the appeal was dismissed.

The rule in Adams has been consistently followed in cases like it on direct appeal. See, e. g., Bedell v. State, 443 S.W.2d 850 (Tex.Cr.App.1969); Payne v. State, 471 S.W.2d 815 (Tex.Cr.App.1971); Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971); Woods v. State, 532 S.W.2d 608 (Tex.Cr.App.1976), and numerous cases there cited.

In many of the cases on direct appeal following the Adams rule it was obvious that the appellant had been deprived of the opportunity to file either a motion for new trial or in arrest of judgment by a prematurely pronounced sentence. In still other cases where the untimely sentence was found in the record on appeal the appeal was dismissed.

Woods v. State, supra, held that where a motion for probation has been filed the time to file a motion for new trial or in arrest of judgment does not begin to run until a determination by the court of the motion for probation. Some time may elapse between the time of the judgment and before the court passes on the probation motion while awaiting a pre-sentencé report. When it does, Woods requires that the computation of time begins to run from the time the court passes on the probation motion. This was what occurred in the instant case.

The issue presented by the instant case is whether an untimely pronounced sentence will always deprive this court of jurisdiction on appeal, regardless of whether that issue is called to the attention of this court. Stated another way, the question presented is whether an appeal affirmed by this court can be collaterally attacked on the basis that the sentence was untimely pronounced where that issue was not raised on direct appeal.

It has long been the policy of the courts of highest resort in this State to differentiate between direct attacks on the judgment and those which are considered collateral attacks. If the judgment and sentence rendered are void, they may be attacked by direct or collateral attack. But if merely voidable, only a direct attack can set it aside. Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876 (1895); Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325 (1895); Ex parte McKay, 82 Tex.Cr.R. 221, 199 S.W. 637 (1917). The method of attack herein is by writ of habeas corpus, which is a collateral attack rather than a direct attack on the proceedings under which the restraint complained of has been imposed. Holman v. Mayor, 34 Tex. 668 (1870); Ex parte Testard, 101 Tex. 250, 106 S.W. 319 (1908); Ex parte Travis, 123 Tex. 480, 73 S.W.2d 487 (1934); Ex parte Sanders, 169 Tex.Cr.R. 107, 332 S.W.2d 332 (1960); Ex parte Conger, 163 Tex. 505, 357 S.W.2d 740 (1962); Ex parte Buford, 163 Tex. 505, 357 S.W.2d 740 (1962). Habeas corpus lies only to review jurisdictional defects or denials of fundamental or constitutional rights.

In the instant case the district court had jurisdiction of the offense. Article V, § 8, Texas Const.; Article 4.05, Vernon’s Ann.C. C.P.; Bridges v. State, 423 S.W.2d 931 (Tex.Cr.App.1968); Article 1341(a), Vernon’s Ann.P.C., 1925, as amended. The judgment of the district court was entered in accordance with Article 42.01, Vernon’s Ann.C. C.P. The sentence entered based on the judgment complied with Article 42.02, supra, and was a proper order except that it was untimely pronounced. Woods v. State, supra. Notice of appeal was given as a prerequisite to perfecting the appeal, see Article 44.08, Vernon’s Ann.C.C.P., and the record was forwarded to this court. See Article 40.09, supra. The conviction was affirmed on appeal without any question being raised as to the untimely sentence.

The untimely pronounced sentence is now attacked collaterally for the first time.

When a defect in the conduct of a proceeding is challenged, a collateral attack by habeas corpus may be invoked only where the error renders the proceedings absolutely void. Ex parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961); Martinez v. State, 419 S.W.2d 369 (Tex.Cr.App.1967). Defects in a proceeding designated as irregularities, consisting of the want of adherence to some prescribed rule or mode of proceeding, either in omitting to do something that is necessary for the orderly conduct of a suit or doing it at an unreasonable time or in an improper manner do not render the proceeding void. Ex parte Duncan, 127 Tex. 507, 95 S.W.2d 675 (1936); Ex parte Lee, 127 Tex. 256, 93 S.W.2d 720 (1936); 27 Tex.Jur.2d, Habeas Corpus, § 11, p. 674; 39 C.J.S. Habeas Corpus § 36, p. 558.

It is observed that Article 26.04, Vernon’s Ann.C.C.P., relating to the appointment of counsel for indigents, provides in subsection (b) that:

“The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.”

Failure to accord the accused and his counsel the ten days’ preparatory period in accordance with this mandatory statute will result in a reversal if such failure is attacked on direct appeal, but may not be collaterally attacked in the absence of a showing of harm. See, e. g., Ex parte Meadows, 418 S.W.2d 666 (Tex.Cr.App.1967); Young v. State, 448 S.W.2d 484 (Tex.Cr.App.1970); Thomas v. State, 451 S.W.2d 907 (Tex.Cr.App.1970); Rinehart v. State, 463 S.W.2d 216 (Tex.Cr.App.1971); Clemons v. State, 501 S.W.2d 92 (Tex.Cr.App.1973); Sutton v. State, 519 S.W.2d 422 (Tex.Cr.App.1975).

It appears that the same distinction between the possible attack on direct appeal and collateral attack was made in Lewis v. State, 501 S.W.2d 88 (Tex.Cr.App.1973). There this court held that the defendant could not attack a judgment of conviction used merely for enhancement of punishment purposes by pointing out when the conviction was offered that the sentence was imposed on the same date that judgment was entered and there was no showing there had been any waiver of the time in which to file motions for new trial or in arrest of judgment.

The very purpose of Article 42.03, Vernon’s Ann.C.C.P., in requiring that sentence should not be pronounced until after the expiration of the time for filing motions for new trial or in arrest of judgment was simply designed to give the defendant, if he desires, an opportunity to investigate, marshal his facts, prepare and file such motions without being cut off by the premature imposition of sentence by the court.

After due consideration, we hold that a sentence untimely pronounced results in an irregularity in the proceedings and renders the sentence voidable as opposed to void. Such irregularly pronounced sentence is not to be equated with the failure to pronounce sentence with regard to the jurisdiction of this court. Prior decisions so indicating were in error. If an attack is made upon such voidable sentence on direct appeal or the matter is called to the attention of this court in any manner while the appeal is pending, the appeal will be dismissed. If no appeal is taken or if the matter of untimely pronounced sentence is not called to the appellate court’s attention in any manner on appeal, such voidable only sentence will not be subject to collateral attack by habeas corpus proceedings or otherwise.

In the instant case the untimely presented sentence was voidable only. On appeal appellant raised no question concerning the same, and it was not called to the attention of this court in any manner. For the first time by habeas corpus proceedings he collaterally attacks the untimely pronounced sentence. He is too late. All cases in conflict with our holding today are overruled to the extent of such conflict.

We observe that in his habeas corpus application appellant contends he was deprived of the effective assistance of counsel on appeal and further was subjected to cruel and unusual punishment because for four years, while free on bond, he was under the impression that his conviction had been reversed and prosecution dismissed.

Appellant’s contention as to cruel and unusual punishment is without merit under Ex parte Francis, 510 S.W.2d 345 (Tex.Cr.App.1974).

As to appellant’s claim of ineffective assistance of retained counsel on appeal, we observe that the appellate record contained only the bare clerk’s transcript. There was no statement of facts. No brief was filed on petitioner’s behalf.

At the evidentiary hearing counsel testified he represented the petitioner at his trial and was retained counsel. He stated he gave oral notice of appeal following sentence, but took no other steps to pursue the appeal. He did not order the statement of facts or file a brief for his client, and he did not apprise the trial court that he had withdrawn. His explanation was that he was unable to contact his client to determine whether to withdraw from the case or not. He did not explain why he was unable to contact the petitioner. The record reflects that the petitioner was on bond pending appeal. Said bond contains the petitioner’s address and phone number. The petitioner testified that in four years’ lapse of time he had been working, purchased a home and been an active church member, and was under the impression the prosecution had been ordered dismissed.

While the record at the evidentiary hearing was not as well developed as it might have been, it does show that retained counsel took no steps to see that petitioner was accorded a meaningful appeal and such inaction was taken without petitioner’s knowledge. The record supports the fact that retained counsel failed to diligently prosecute the appeal after representing that he would do so. This conduct amounts to a breach of a legal duty of retained counsel. See Steel v. State, 453 S.W.2d 486 (Tex.Cr.App.1970); Ex parte Raley, 528 S.W.2d 257 (Tex.Cr.App.1975), and cases there cited; Ex parte Hill, 528 S.W.2d 259 (Tex.Cr.App.1975).

The petitioner is entitled to the relief requested with regard to the effective assistance of counsel on appeal and is granted an out-of-time appeal, and the cause is remanded to the trial court for proceedings in accordance with Article 40.09, supra, to afford him an effective appeal.

The relief prayed for is granted in part in accordance with this opinion.

It is so ordered.

DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

The majority wholly misstate the issue before this Court. According to the majority:

“On rehearing the State vigorously urges that the sentence was voidable only, not void, and hence not subject to collateral attack. We agree and grant the State’s motion for rehearing.”

Later the majority state, “The untimely pronounced sentence is now attacked collaterally for the first time.” That is simply not the posture of the case before us. Petitioner, in his succinct reply to the State’s motion for rehearing, points with clarity to the error in the State’s argument that has been accepted by the majority:

“The basic fallacy in State’s argument is that it has confused the jurisdiction between the appellate court and the trial court. . . . What this Honorable Court said in its Opinion of December 22, 1976, is that it, the Appellate Court, did not have appellate jurisdiction and thus no authority to affirm the conviction in the first instance. Most obviously, the State’s Attorney is confusing the jurisdiction of the trial court with the jurisdiction of the appellate court, and, to use an old phrase, is ‘trying to mix apples and oranges’ . . . ”

Likewise, the majority is most obviously confusing the jurisdiction of this Court with the jurisdiction of the trial court.

The issue is not whether the judgment of conviction of the district court is void; it is whether this Court’s judgment of affirmance is void. As stated on original submission:

“Our affirmance of petitioner’s conviction was incorrect because we did not have jurisdiction to entertain the appeal due to the premature imposition of sentence by the trial court. Middleton v. State, Tex.Cr.App., 537 S.W.2d 25; Mendez v. State, Tex.Cr.App., 535 S.W.2d 365; Woods v. State, Tex.Cr.App., 532 S.W.2d 608. Our only proper action in such a situation is to dismiss the appeal.”

The majority have advanced no reasoning that even addresses this issue.

The majority, despite their failure to address the issue, do, at one point, correctly state the issue:

“The issue presented by the instant case is whether an untimely pronounced sentence will always deprive this court of jurisdiction on appeal, regardless of whether that issue is called to the attention of this court.” (Emphasis added.)

Judge Woodley, speaking for the Court in Ex parte Caldwell, Tex.Cr.App., 383 S.W.2d 587, 589, answered the matter thusly: “Jurisdiction of a court must be legally invoked, and when not legally invoked, the power of the court to act is as absent as if it did not exist.” (Emphasis added.) Accord, Newton v. State, Tex.Cr.App., 509 S.W.2d 610; State v. Olsen, Tex., 360 S.W.2d 398.

The duty to determine whether the Court has jurisdiction of a case is a duty of the Court itself, and not dependent on assertion by a party:

“It is a matter of first consideration of any court to determine its own jurisdiction of a case, and, if lack of jurisdiction appears, as a matter of law, the court should dismiss the case without passing upon any other issue presented, whether of law or fact.” Lone Star Finance Corp. v. Davis, 77 S.W.2d 711 (Tex.Civ.App.—Eastland, 1934). See also Gibbs v. Melton, 354 S.W.2d 426 (Tex.Civ.App.—Dallas, 1962).

The consequences of this Court taking action other than dismissal of any appeal in which we lack jurisdiction are the same as the consequences in such circumstances of action by any other court:

“If the court has no jurisdiction, it should proceed no further with the case other than to dismiss it for want of power to hear and determine the controversy. In such a case, any order or decree entered, other than one of dismissal, is void.” (Emphasis added.) Hall v. Wilbarger County, 37 S.W.2d 1041, 1046 (Tex.Civ.App.—Amarillo, 1931), affirmed, 55 S.W .2d 797.

“[Jjudieial action without jurisdiction is void.” Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926).

This Court lacked jurisdiction when petitioner’s conviction was appealed. This Court only had authority to dismiss that appeal. This Court’s judgment of affirmance is void. “A judgment which is void is conclusive of nothing, and may be the subject of inquiry in a collateral proceeding.” Ex parte Duncan, 42 Tex.Cr.R. 661, 62 S.W. 758.

Finally, I urge the majority to re-examine Lewis v. State, 501 S.W.2d 88, which is cited in today’s majority. In Lewis the defendant challenged the validity of a prior conviction on grounds of an untimely sentence. Presiding Judge Onion, speaking for the Court, wrote:

“We observe that County Attorney Guillet testified that no notice of appeal was given from the prior misdemeanor conviction and that the conviction had become final prior to the commission of the primary offense.
$ ⅛ ⅛ ¡⅜ ⅝: sf¡
“Appellant relies upon such cases as Payne v. State, 471 S.W.2d 815 (Tex.Cr.App.1971); Adams v. State, 440 S.W.2d 844 (Tex.Cr.App.1969); Payne v. State, 477 S.W.2d 581 (Tex.Cr.App.1972), and Matheson v. State, 492 S.W.2d 273 (Tex.Cr.App.1973), holding that an appeal from a conviction will be dismissed where the appellate record shows that the sentence was improperly and untimely entered in violation of Articles 40.05 and 42.03, Vernon’s Ann.C.C.P.
“The authorities relied upon by appellant deal with a direct appeal, whereas the instant case involves an attempt to make a collateral attack on the finality of the prior conviction alleged for jurisdictional purposes.”

The conviction challenged in Lewis was final in the trial court because no appeal was taken from the judgment of conviction. The Court distinguished that situation from the cited cases holding this Court lacked appellate jurisdiction where sentence is untimely pronounced. The case at bar challenges our prior exercise of appellate jurisdiction and our subsequent judgment of affirmance; it is not an attack on a judgment of conviction, nor is it an attack on a case that was final in the trial court because no appeal was taken. Lewis v. State, supra, is no bar to petitioner’s attack, but, to the contrary, acknowledges the authorities that support the instant attack and distinguishes Lewis’ unsuccessful challenge from petitioner’s meritorious attack.

The State’s motion for rehearing should be overruled without written opinion.

      . It should be remembered that this proceeding took place long before this court’s decision in Woods v. State, 532 S.W.2d 608 (Tex.Cr.App.1976), holding that the time for filing a motion for new trial or in arrest of judgment does not begin to run until the date the court either grants or denies probation.

      . It is observed that Article 42.04, supra, requires a sentence with certain exceptions be imposed before an appeal can be taken. Yordy v. State, supra, dealt with a situation where no sentence at all was imposed.

      . Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App.1972), and Hayles v. State, 507 S.W.2d 213 (Tex.Cr.App.1974), hold that the provisions of the statute are mandatory.

      . While an out-of-time appeal is now afforded petitioner and the trial court may release him on bail pending appeal, it is observed that the trial court had no authority to release him on bond following the post-conviction habeas corpus proceedings as it did. See Article 11.07, § 2(a) and § 3, supra.

      . Furthermore, this Court on original submission did not even address the issue of whether the district court’s judgment of conviction was subject to collateral attack, nor did we hold that judgment void.


source: Caselaw Access Project

author: ONION, Judge.

license: Public Domain

text:
    Ex Parte Harold Eugene MEADE.
    No. 54527.
    Court of Criminal Appeals of Texas.
    April 27, 1977.
    Carol S. Vance, Dist. Atty., and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an appeal from an order entered in a habeas corpus proceeding in the 177th District Court of Harris County.

The record, not as well developed as it should have been, reflects that appellant was indicted for burglary of a building in the 209th District Court of Harris County. On April 1, 1976, a jury in a pre-trial competency hearing found the petitioner presently incompetent to stand trial and further found there was no substantial probability that he will attain the competency to stand trial within the foreseeable future. Under these circumstances, the case was thereafter transferred to the Harris County Court for the purpose of instituting civil commitment proceedings, pursuant to Article 46.02, § 6(a), Vernon’s Ann.C.C.P., which reads in substance:

“If a defendant is found incompetent to stand trial and there is found no substantial probability that he will become competent in the foreseeable future . the court shall transfer the defendant to the appropriate court for civil commitment proceedings and may order the defendant detained in jail or other suitable place pending the prompt initiation and prosecution by the attorney for the state or other person designated by the court of appropriate civil proceedings to determine whether defendant will be committed to a mental health or mental retardation facility, or the court may give the defendant into the care of a responsible person on satisfactory security being given for his proper care and protection; otherwise the defendant shall be discharged." (Emphasis Supplied.)

The case was apparently transferred from the constitutional County Court of Harris County to Probate Court No. 1 of Harris County. The judge of said probate court transferred petitioner to the Rusk State Hospital in Cherokee County for a ninety (90) day temporary commitment beginning on May 4, 1976, pursuant to the provisions of Article 5547-31, Vernon’s Ann.C.S., Texas Mental Health Code, which provides:

“A sworn Application for Temporary Hospitalization of a proposed patient may be filed with the county court of the county in which the proposed patient resides or is found. The Application may be made by any adult person, or by the county judge, and shall state upon information and belief that the proposed patient is not charged with a criminal offense or that he is charged with a criminal offense and has been transferred to the appropriate court for civil commitment proceedings pursuant to Section 6 of Article 46.02, Code of Criminal Procedure, that he is mentally ill, and that for his own welfare and protection or the protection of others he requires observation and/or treatment in a mental hospital.” (Emphasis supplied.)

On June 25, 1976, Dr. Robert Sheldon, Superintendent of Rusk State Hospital, notified the Judge of Harris County Probate Court No. 1, who had committed the petitioner, that the petitioner had been evaluated by the review board of the Texas Department of Mental Health and Mental Retardation as “manifestly dangerous” and “IS DANGEROUS” and that he had been placed in maximum security. Dr. Sheldon pointed out that the present commitment expired on July 28, 1976, and since further hospitalization is indicated, that a hearing for indefinite commitment should be held in Harris County where the charges were pending. The Judge of the Harris County Probate Court No. 1 wrote Dr. Sheldon that in his opinion the indefinite commitment should be instituted in Cherokee County under Article 5547-41, Vernon’s Ann.C.S., Texas Mental Health Code, which states in part:

“A sworn Petition for indefinite commitment of a person to a mental hospital may be filed with the county court of the county in which the proposed patient is hospitalized, or if he is not hospitalized, the county in which he resides or is found.” (Emphasis supplied.)

The probate judge offered to have Harris County pay the expenses of the commitment proceedings. Whether any effort was made to institute proceedings in Cherokee County is not reflected by the record before us.

On September 15, 1976, Dr. Sheldon wrote the sheriff of Harris County that the petitioner was being returned to his custody as his commitment had expired with the notification that the petitioner could be returned after an indefinite commitment in a court proceeding. The letter expressed the opinion that the petitioner had not yet achieved competency. The certificate of discharge from the hospital stated the petitioner was being discharged to the County Criminal Court of Harris County. The petitioner was taken into custody on September 15,1976 and placed in the Harris County Rehabilitation Center. On February 15, 1977, the sheriff wrote the County Judge of Harris County and the Judge of the 209th District Court expressing his deep concern and pointing out the petitioner had been in jail without any action having been taken for five months after petitioner’s return to Harris County. He expressed his opinion the continued confinement in jail of an individual deemed incompetent by the staff at Rusk State Hospital was in violation of Article 5115, Vernon’s Ann.C.S., and a December 16,1975 order of United States District Judge Carl 0. Bue, Jr. He expressed the hope that some appropriate authority would act in the case immediately.

On February 22, 1977 an application for writ of habeas corpus was filed in the 177th District Court seeking petitioner’s release. On February 25,1977 that court, after hearing, denied relief but ordered petitioner committed to the “Harris County Psychiatric Unit in the psychiatric hospital.”

Notice of appeal was given to this court.

We initially note that under petitioner’s present circumstances he could be held in custody indefinitely, without a valid court commitment which would deny petitioner due process and equal protection of the law. See and compare Greenwood v. United States, 350 U.S. 366, 76 S.Ct. 410, 100 L.Ed. 412 (1956); Humphrey v. Cady, 405 U.S. 504, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). It is equally well settled that a state prisoner would be denied equal protection if he was deprived of a jury trial for civil commitment proceedings that the State makes generally available to all other persons civilly committed. See Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966).

We further note that the United States Supreme Court in Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), held:

“. . .a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.” (Emphasis supplied.)

Therefore, it is clear that in the case at bar petitioner has a constitutional right to a “prompt initiation and prosecution” of appropriate civil proceedings to determine whether he should be committed. See Article 46.02, § 6(a), supra; Jackson v. Indiana, supra. At the present time, petitioner is being held in Harris County, the venue of the criminal prosecution and the original finding of incompetency to stand trial. Therefore, under the facts of this case, venue lies in Harris County for any civil commitment proceedings for the petitioner is to be found there. The Judge of the Harris County Probate Court No. 1 or the “Attorney for the State” should immediately and promptly initiate immediate civil commitment proceedings pursuant to the provisions of Article 5547 — 41, Vernon’s Ann.C.S., Texas Mental Health Code.

While the petitioner was hospitalized in Cherokee County, the site of the Rusk State Hospital, the indefinite commitment should have been conducted there under Article 5547-41, supra. It is not clear from this record why the proceedings were not conducted there. We are not advised by this poorly developed record whether the staff of the hospital did not attempt to initiate such proceedings there or whether Cherokee County officials opposed initiation of such proceedings because the hospital patient was committed from another county and to prevent a heavy burden being cast upon its judicial resources and upon its citizens of the county to act as jurors. Under any circumstances the petitioner is now in Harris County and that is where action should be taken.

There can be no question but what the petitioner has been denied a prompt and speedy initiation of proceedings. However, we cannot hold that petitioner is entitled to immediate release, but he is entitled to a prompt jury trial to determine whether he is to be civilly committed, or otherwise supervised, or discharged.

Whatever the wisdom of requiring an individual charged with a crime who has been found incompetent to stand trial by a jury with no substantial probability that he will become competent in the foreseeable future to be transferred to a civil court for commitment proceedings, there can be no excuse for the tragic picture painted by this appeal.

Thirty days from the date of this opinion shall be given for the proper officials to institute the proper proceedings. If such action is not taken within such time, then the petitioner shall be ordered discharged from further custody.

It is so ordered.

DOUGLAS and ODOM, JJ., concur in the results.

      . Obviously the hospital staff who drafted the certificate of discharge did not observe in which court the temporary commitment occurred.

      . A copy of such order is not in the record before us.

      . See Article 46.02, § 6(a), supra.

      . It does not appear from this record that the indictment against the petitioner has been dismissed so a jury trial would be necessary, Ar-tide 5547-44, Vernon’s Ann.C.S., Texas Mental Health Code.


author: DOUGLAS, Judge.

text:
    Sammy Lee SANFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 53216.
    Court of Criminal Appeals of Texas.
    May 11, 1977.
    Rehearing Denied June 1, 1977.
    Fred J. Horner, III, Waco, for appellant.
    Martin D. Eichelberger, Dist. Atty. and Lynn W. Malone, Asst. Dist. Atty., Waco, 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 the offense of aggravated assault. Punishment enhanced under the provisions of V.T. C.A., Penal Code, Section 12.42(d), was assessed at life.

The sufficiency of the evidence is not challenged. The facts show that on December 14, 1974, at approximately 7:50 p. m., Officer Wayne Copeland of the Waco Police Department had just arrested an individual for public intoxication in front of O.G.’s Lounge in Waco. While he was waiting for a back-up officer, he saw appellant exit The People’s Choice Club across the street with a large group of people. He saw appellant run around the side and pick up what appeared to be a beer bottle or large rock of some kind. Then appellant followed by the group ran back into the club. All of them were using loud and profane language and causing a disturbance. Copeland walked over to the lounge to investigate the matter and encountered several people complaining that appellant was causing trouble and had been doing so all afternoon. He asked appellant to come across the street to his patrol car so that they could discuss the problem and appellant started out with him. As they were leaving, appellant turned and said to the crowd, “F_ you, mother f_I’ll get you back for this.” Midway across the street appellant turned again and cursed the crowd. The crowd was becoming very upset. He advised appellant that he was under arrest for disorderly conduct. Appellant responded, “F_you, pig. ni not going anywhere with you white mother f_” When Copeland attempted to conduct a “pat down” search for weapons, appellant turned around and pushed Copeland, stating that he was not going to jail and he [Copeland] had no business frisking him. Copeland grabbed appellant’s hands and tried to place him against the patrol car. Appellant began hitting him in the face and chest with his fists. The two men struggled and, after gaining control of Copeland’s nightstick and swinging at him, appellant then fled.

Copeland gave chase and tackled appellant, another struggle ensued and appellant again struck the officer with his fists. Other officers arrived and appellant was subdued.

In his first three grounds of error appellant contends that the indictment is insufficient to support enhanced punishment under the provisions of Section 12.42(d) in that the allegations fail to allege that he had been previously convicted of two felony offenses and thus the penalty assessed was unauthorized by law. His only objection to the court’s charge at the punishment stage of the trial was that the offense of breaking and entering a coin-operated machine is no longer a felony offense and, therefore, could not be used for enhancement.

We note that the allegations contained in the enhancement paragraphs give the dates of the convictions, the particular court, the cause numbers, and state that the convictions were final and in proper order as well as the fact that they were felony convictions. The allegations were sufficient. Cooper v. State, 500 S.W.2d 837 (Tex.Cr.App.1973). His contention as to the use of a prior felony now classified as a misdemeanor has been adversely decided against him in Moreno v. State, 541 S.W.2d 170 (Tex.Cr.App.1976). Grounds of error numbers one, two and three are overruled.

In his last four grounds of error, appellant complains of the trial court’s refusal to charge the jury on the law of unlawful arrest, right to resist an unlawful arrest and illegal search and seizure.

The right to resist an arrest, even an illegal arrest, is prohibited by the provisions of V.T.C.A., Penal Code, Section 38.03, which this Court upheld as constitutional in Ford v. State, 538 S.W.2d 633 (Tex.Cr.App.1976).

These grounds of error are overruled.

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


author: DAVIS, Commissioner.

text:
    Donald P. FLY, Appellant, v. The STATE of Texas, Appellee.
    No. 54347.
    Court of Criminal Appeals of Texas.
    May 11, 1977.
    Rehearing Denied June 1, 1977.
    Marvin O. Teague, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

This is an appeal by one of the sureties from a final judgment forfeiting an appearance bond.

The record reflects that on November 1, 1972, the principal, Rene Esquibel, arrested for possession of marihuana, was released on a $1,000 appearance bond with appellant and James Johnson listed as sureties. On December 28, 1972, the principal failed to appear in the 185th District Court of Harris County and a judgment nisi was entered. On May 22, 1973, notice was issued to the sureties as to a show cause hearing regarding the final judgment for the bond forfeiture. A subsequent notice was issued on April 8, 1975. On May 4, 1976, the charge against the principal was dismissed because the case was an “old case, no arrest.” On October 29, 1976, a show cause hearing was held and final judgment was entered forfeiting the $1,000 appearance bond. The principal was not rearrested after he failed to appear on December 28, 1972, and he did not appear in court before the final judgment was rendered.

Appellant contends in his first ground of error that the trial court did not have jurisdiction to render a final judgment.

The record reflects that a complaint was filed in justice court against the principal on October 30, 1972, and the complaint recited that bail was set at $15,000. On November 1, 1972, the principal was released on an appearance bond for $1,000. The complaint and appearance bond contained the same justice court cause number. The appearance bond has the justice of the peace’s signature rubber stamped on it with the clerk’s signature underneath the stamped signature. The record does not reflect any written order reducing the bail. Appellant contends that the clerk of the justice court reduced the bail from $15,000 to $1,000 without authority and thus the bond was void.

In Bennett v. State, Tex.Cr.App., 394 S.W.2d 804, we held that the approval of an appearance bond by a rubber stamped signature of the justice of the peace did not vitiate the bond as the judge’s approval was not necessary to the validity of a bond taken by him.

We find no requirement that a magistrate must file a written order when he reduces the bail. While a written order reducing bail might be preferable, absent a showing to the contrary, we will presume that a magistrate has reduced bail when an appearance bond is issued at a lower amount than that specified on a complaint.

Here, the burden was on the appellant to show that reduction in bail was not authorized. No evidence was presented to show that the judge did not reduce the bail.

Appellant further contends that because the principal was indicted by the Harris County grand jury on November 30, 1972, and the district court judge set the principal’s bail at $15,000 and ordered the principal arrested, the original $1,000 appearance bond was rendered null and void. Appellant cites no authority for his proposition and our investigation reveals none.

Article 17.09, Section 2, V.A.C.C.P., provides that once an accused has been released on an appearance bond he shall not be required to give another bond in the course of the same criminal action “except as herein provided.” Article 17.09, Section 3, supra, provides, however, that a judge in whose court such action is pending may order the accused rearrested and require the accused to give another bond if he finds the original bond defective, excessive, or insufficient.

The record does not reflect the reason for the district judge’s order of the rearrest of the principal. Because the district judge set the bail at $15,000, absent evidence to the contrary, we will presume that the accused was ordered rearrested because the trial judge found the original bond insufficient. We hold the issuance of the arrest warrant alone, without the principal actually being rearrested and released under another bond, did not nullify his prior bond obligation.

Appellant next contends that the trial court “abused its discretion in the premises by failing and refusing to order a remittitur of the amount of the final judgment.” Since the charge was dismissed against the principal after the judgment nisi and before the final judgment, appellant submits that the trial court should have remitted the full $1,000 of the final judgment.

The primary object or purpose of an appearance bond is to secure the presence of a defendant at court upon trial of an accusation against him. See McConathy v. State, Tex.Cr.App., 528 S.W.2d 594; Arts. 17.01, 17.02, 17.09, V.A.C.C.P.

In the instant case, the bond was conditioned that the defendant-principal appear in justice court to answer the accusations against him, and to “personally appear for any and all subsequent proceedings had relative to the above charges before the grand jury of said county and before any court of said county in which said subsequent proceedings máy be pending .

The judgment nisi reflects that the defendant-principal did not appear in the 185th District Court of Harris County to answer felony charges against him on December 28, 1972. No evidence was produced by appellant to exonerate the principal and his sureties under Art. 22.13, V.A.C. C.P., nor does the record reflect that all of the proceedings relative to the charge had been disposed of at the time of the failure to appear. Cf. McConathy v. State, supra. The record reflects that no variance exists in the allegations of the judgment nisi and the final judgment. Cf. Smith v. State, Tex.Cr.App., 548 S.W.2d 407 (1977).

Appellant cites Williams v. State, 159 Tex.Cr.R. 443, 265 S.W.2d 92, in support of his contention that the court should have granted remittitur. In Williams, supra, the principal was released on a $500 appearance bond. He appeared for an afternoon trial session of his cause but returned to a night session 48 hours late. During his absence the trial court ordered the $500 bond forfeited. The principal was later tried and fined and given jail time. This Court held that because of the principal’s punishment and other circumstances the trial court abused its discretion in not remitting at least $250 of the forfeited bond. We find Williams, supra, distinguishable from the instant case in that the principal there did later appear and was tried and sentenced.

We find no merit in appellant’s contention that Art. 22.17, V.A.C.C.P., is applicable here. Art. 22.17, supra, provides:

“When the principal appears before the entry of final judgment, and sufficient cause is shown for his failure to appear before the forfeiture is taken, and a trial is had of the criminal action pending against him, he shall be entitled to have the forfeiture set aside. The criminal action against him shall stand for trial, but the State shall not be forced to try the same until reasonable time has been allowed to prepare for trial, and the State shall, in such case, be entitled to a continuance.”

Appellant submits that since the charges were dismissed, if the principal had appeared before final judgment, he could not have been arrested or placed in custody, nor could his case have been tried. Appellant contends there is no difference in the requirements of Art. 22.17, supra, and a dismissal of a cause after judgment nisi and before final judgment.

We find no merit in appellant’s contention. Appearance alone or the subsequent trial of the cause does not mandate the trial court to set aside the forfeiture. Art. 22.17, supra, also requires that good cause be shown why the principal did not appear in court in accordance with his promise. See Apodaca v. State, 493 S.W.2d 856; State v. Warren, 17 Tex. 283; Baker v. State, 21 Tex.Crim. 359, 17 S.W. 256.

Even if we could equate the dismissal of the charges against the principal with a trial of the criminal action, the other requirements of Art. 22.17 have not been met to entitle the appellant to have the forfeiture set aside; i. e., the principal’s appearance before final judgment and the showing of good cause for the principal’s failure to appear.

We find the trial court did not abuse its discretion in refusing to remit the amount of the final judgment.

The judgment is affirmed.

Opinion approved by the Court.


text:
    James Howard TURNER, Appellant, v. The STATE of Texas, Appellee.
    No. 53362.
    Court of Criminal Appeals of Texas.
    May 18, 1977.

      Nicholas P. Cariotis, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell Tem-pleton, Phil Dixon and James G. Walker, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of heroin. After the jury returned a verdict of guilty, the court found that the allegations in the second and third paragraphs of the indictment charging that appellant had been previously convicted of two felony offenses were true. Pursuant to such findings, punishment was assessed at life.

At the outset, appellant contends that the court erred “in admitting into evidence the fruits of the search of appellant’s automobile, as there was insufficient probable cause to justify the warrantless search of the automobile, in violation of the Fourth Amendment to the United States Constitution.”

The record reflects that Dallas Police Officers Westphalen and Spivey, while on routine patrol at 1:10 a. m. on January 26, 1975, stopped a vehicle appellant was driving in the 3200 block of South Oakland. The officers testified that the reason for stopping appellant was that “he was driving forty-two miles per hour in a thirty mile an hour zone.” Appellant was the only occupant of the vehicle.

Spivey approached appellant’s vehicle from the driver’s side and Westphalen went to the right side of the car where “I could see him in case he reached for a weapon.” The testimony of Westphalen reflects that the following then occurred:

“Officer Spivey asked him to step out of the car and give him his driver’s license. He opened the car door and when he opened the door the interior lights came on and I saw the driver of the car drop a matchbox to the floorboard in front of his seat.
⅝ * ⅝ ⅜ ⅜ ⅜
“I told Officer Spivey to go ahead and move him to the rear of the car while I looked to see what was in the matchbox and looked for weapons.”

Westphalen recovered the matchbox appellant had dropped to the floor and upon opening same found four capsules containing a substance determined to be heroin and a number of empty capsules. Further search of the car revealed a syringe with a liquid residue inside it.

Appellant concedes that the officers had a right to stop his vehicle for a speeding violation. See Duff v. State, Tex.Cr.App., 546 S.W.2d 283, and cases cited therein. He argues that there was not probable cause for the search of the vehicle following the traffic arrest which resulted in the seizure of the contraband.

Appellant urges that he was not in a position to lunge for a weapon in his car since he had moved to the back of the car and neither officer expressed any fear or apprehension that appellant was armed or dangerous. Argument is further advanced that the “furtive gesture” of dropping the matchbox to the floor does not furnish probable cause for the search of the vehicle.

The State responds that appellant was in a position to lunge for weapons when the officer began his search and asked his partner to move appellant to the rear of the vehicle.

We conclude that the lawfulness of the search is not dependent upon a determination of whether the search was reasonably necessary to protect the officers from bodily injury during their detention of appellant for the traffic offense.

In Beck v. State, Tex.Cr.App., 547 S.W.2d 266, cited by appellant, the gesture observed by the officers was nothing more than a movement by the defendant toward the glove compartment of his truck. In Wilson v. State, Tex.Cr.App., 511 S.W.2d 531, also relied on by appellant, the only movement the officers observed defendant make was “a move with his right hand between the two seats” of the vehicle. In Brown v. State, 481 S.W.2d 106, this Court held that there was not probable cause to search a vehicle because the occupants in the back seat of the automobile moved their shoulders before the car was brought to a stop. The gestures made by defendants in Beck, Wilson and Brown were not sufficient in themselves to warrant a man of reasonable caution in the belief that contraband was being transported in the vehicle under observation. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. The gestures observed in the foregoing cases could amount to nothing more than innocent movements of the operators and passengers of any vehicle. See Wilson v. State, supra.

In the instant case, appellant dropped a matchbox to the floor of his vehicle when he was asked by the officer to exit same during the early morning hours of January 26, 1975. Officer Westphalen was in a place he had a right to be when he observed such conduct on part of the appellant in plain view. We conclude that the dropping of the box by appellant under the circumstances herein could warrant a man of reasonable caution in believing that the box contained contraband that appellant wanted to conceal from the officers when he was asked to exit his vehicle. We find there was probable cause for the intrusion into the vehicle to seize the box and, upon opening same and discovering the capsules therein, the officer was justified in making further search of the vehicle for contraband.

Appellant contends that error resulted in the State failing “to show that the second previous felony conviction was for an offense that occurred subsequent to the first previous conviction having become final as required by V.T.C.A. Penal Code Section 12.42(d).”

The pertinent portions of the enhancement paragraphs of the indictment allege that appellant was convicted on February 18,1970, in Criminal District Court No. 5 of Dallas County in Cause No. C-70-61-KL for the offense of burglary and on June 19, 1964, in Criminal District Court No. 3 of Dallas County in Cause No. D-3917-IJ for the offense of robbery.

The pen packets admitted into evidence contain judgments and sentences which reflect that convictions occurred in the two numbered causes on the days alleged in the indictment. The judgment in the most recent prior conviction, Cause No. C-70-61KL, contains a finding, “. . . That the said Defendant is guilty of the felony offense of Burglary as charged in the indictment and that the said Defendant committed said offense on the 23rd day of November 1969. . . (Emphasis supplied.)

Unlike Wiggins v. State, Tex.Cr.App., 539 S.W.2d 142, relied on by appellant, the judgment in the most recent prior conviction contains an express finding that appellant committed the offense upon which the conviction was based on a day certain, “the 23rd day of November 1969,” a time which is clearly after the first previous conviction became final. No error is shown.

The judgment is affirmed.

Opinion approved by the Court.


author: BROWN, Commissioner.

text:
    SURETY CORPORATION OF AMERICA, Appellant, v. The STATE of Texas, Appellee.
    No. 54301.
    Court of Criminal Appeals of Texas.
    May 18, 1977.
    Kerry P. Fitzgerald, Richard T. McCona-thy, Dallas, for appellant.
    Henry Wade, Dist. Atty. and Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a final judgment forfeiting a bail bond in the amount of $10,000.00.

The principal-defendant, James Earl Walker, was originally charged with the felony offense of aggravated robbery. Appellant posted an appearance bond in behalf of Walker on March 20,1975 in the amount of $10,000. Walker pled guilty to the charge before a jury which assessed punishment at ten (10) years in the Texas Department of Corrections and recommended that Walker be placed on probation. Imposition of sentence was suspended and Walker was placed on probation on October 2, 1975 at which time he gave notice of appeal. In a per curiam opinion delivered May 12, 1976 Walker’s conviction was affirmed by this Court. Mandate was issued on May 28, 1976. Thereafter, the trial court set the case for “resentencing” on June 14, 1976 and then reset the case for June 21, 1976. Walker failed to appear. On June 21, 1976 the trial court forfeited appellant’s bond and entered a judgment nisi. After a hearing on the bond forfeiture the trial court entered a final judgment on November 23, 1976.

In his first ground of error appellant contends that the trial court erred in forfeiting appellant’s bond and entering final judgment against appellant because appellant’s liability was discharged upon the af-firmance of the principal-defendant’s conviction and issuance of mandate by this Court.

A similar contention was raised in McConathy v. State, 544 S.W.2d 666 (Tex.Cr.App.1976). In that case the principal was placed on probation, filed a motion for new trial and an amended motion for new trial, but gave no notice of appeal. The amended motion for new trial was overruled by operation of law and on the following day the trial court called a hearing on the amended motion for new trial and the principal failed to appear. The trial court then entered a judgment nisi. On appeal of the final judgment forfeiting the bond, we held that the principal’s probation had commenced with the overruling of his amended motion for new trial and, therefore, the trial court was not authorized to hold a hearing. Such an unauthorized hearing was not a “subsequent proceeding” had relative to the offense charged as contemplated by Article 17.09, Vernon’s Ann.C.C.P. The appellant-surety’s liability to insure the principal’s appearance was discharged on the date the amended motion for new trial was overruled by operation of law.

In that opinion we also noted that where the accused is placed on probation and appeals his conviction, the terms of probation do not commence until the mandate of this Court is received by the clerk. See Delorme v. State, 488 S.W.2d 808 (Tex.Cr.App.1973). Such is the situation in the instant case. The terms of Walker’s probation commenced on May 28, 1976 when mandate was issued from this Court.

The State maintains, however, that the trial court had “the right and duty” upon receipt of our mandate to summon the principal to court to inform him that his conviction had been affirmed and that his period of probation had commenced to run and that he would have to comply with the conditions thereof. The record does not reflect that this was the purpose of the June hearing dates as recited above. The trial court’s docket sheet reflects a June 14, 1976 setting for “resent” and a June 21, 1976 resetting for “resentencing.”

A sentence, as defined by Article 42.02, Vernon’s Ann.C.C.P. is required to be „ pronounced in all cases before an appeal is taken, except in death penalty cases and in probation cases where imposition of sentence is suspended. Article 42.04, Vernon’s Ann.C.C.P.; Woods v. State, 532 S.W.2d 608 (Tex.Cr.App.1976). Where, as in the instant case, the accused is granted probation, there is no formal sentencing as contemplated by Article 42.02, supra, and Article 42.03. Therefore, the trial court was not authorized to hold a hearing for “resentenc-ing” after issuance of this Court’s mandate.

The appellant-surety’s liability to insure the principal’s appearance at a subsequent proceeding was discharged upon the issuance of mandate from this Court because his probation had commenced and there could be no subsequent proceedings had relative to the charge as contemplated by Article 17.09, supra. See also McConathy v. State, 528 S.W.2d 594, 598 (Tex.Cr.App.1975) where the principal was placed on probation and did not file a motion for new trial or give notice of appeal. When he failed to pay his fine and court costs as required by the terms of his probation, no motion to revoke probation was filed, but the court set the case on the docket and when the principal failed to appear, the original appearance bond was forfeited. We held that this was not a “subsequent proceeding had relative to the charge” and the court was unauthorized to forfeit the bond.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


text:
    Ex parte Willie Ray KING.
    No. 54340.
    Court of Criminal Appeals of Texas.
    May 18, 1977.
    Stanley G. Schneider, Huntsville, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

In this habeas corpus proceeding, King seeks to set aside his conviction for felony theft in Cause No. 1750 in the 154th Judicial District Court of Lamb County where the punishment was assessed at four years.

After the hearing, the Judge of that court found that on February 28,1976 King was without counsel during the trial of such cause. However, he found that King was not indigent and that he had voluntarily, knowingly and intelligently waived his right to be represented by counsel.

On January 9,1976 King appeared before the Judge in the cause and the following transpired:

“THE COURT: Mr. King, I need to talk to you now. Come on up.
I haven’t heard from a lawyer on your case. Who do you have hired?
WILLIE RAY KING: Sir?
“THE COURT: What lawyer do you have hired?
“WILLIE RAY KING: I don’t have one.
“THE COURT: Well, do you want to go to trial without a lawyer? Is that what you want?
“WILLIE RAY KING: Well, I don’t know.
“THE COURT: Sir?
“WILLIE RAY KING: I tried to call my brother in Dallas to get him to send me some money, but I never could get him.
“THE COURT: Well, your case is set for February the 2nd. I am not going to put it off again.
You are out on bond; you ought to be able to work and hire you a lawyer.
“WILLIE RAY KING: Yes.
“THE COURT: Are you working now?
“WILLIE RAY KING: I have been part of the time when it is warm.
“THE COURT: There is nothing to do?
“WILLIE RAY KING: Well, no.
“THE COURT: You can’t get a construction job out at the American Cotton Products Plant out there?
“WILLIE RAY KING: I don’t know.
“THE COURT: Sir?
“WILLIE RAY KING: I haven’t been out there.
“THE COURT: Can you work as a farm hand?
“WILLIE RAY KING: Yes, sir.
“THE COURT: Can you handle tractors?
“WILLIE RAY KING: Sir?
“THE COURT: Can you handle tractors, operate tractors?
“WILLIE RAY KING: Yes, sir.
“THE COURT: Aren’t there farmers hiring now to do that kind of work?
“WILLIE RAY KING: Yes, sir, they are hiring, but not when the weather is bad.
“THE COURT: Well, is the weather bad today?
“WILLIE RAY KING: No, sir, not today.
“THE COURT: But you are working?
“WILLIE RAY KING: Yes, 'sir, like I say, when the weather is good.
“THE COURT: Well, you better get your lawyer hired unless you want to go to trial without one.
Be back up here 10:00 A.M. February 2nd; we are going to call your case for trial with or without a lawyer. That is all at this time.”

Petitioner’s next appearance before the court in the cause was on February 3, 1976, when the following occurred:

“THE COURT: Come up, Mr. King, and have a seat at the counsel table there. Members of the jury panel, there will be somewhat unusual proceedings here today. We will be trying this case in which Willie Ray King stands charged by indictment.
Mr. King has not employed an attorney to represent him, and I have not seen fit to appoint an attorney to represent him, so he will be representing himself in the trial before the jury here in the District Court.
If you are ready, Mr. Young, (prosecutor), we will proceed to pick a jury to try the case.”

After the prosecutor had conducted his voir dire of the jury panel, the following colloquy took place:

“THE COURT: Mr. King, it is your turn now to tell the members of the jury panel anything that you think that the evidence will show in this case that might be favorable to you, or to ask them questions about their background or experiences or attitudes that might affect their service.
“WILLIE RAY KING: I don’t have anything to say.
“THE COURT: You don’t have anything you want to say to the jury panel at this time?
“WILLIE RAY KING: No, sir.”

The court then recessed the jury panel and explained to petitioner the procedure used for selecting a jury, the rule of evidence, the reading of the indictment, and the entry of a plea to the indictment. Following the explanation of the foregoing to petitioner, the court inquired of him whether he would plead guilty or not guilty. King said he would plead “guilty.” As to the court’s inquiry on whom he wanted to assess punishment, the court or the jury, King replied: “It don’t really matter, I don’t guess.” The court then informed King that he had had sufficient time to find employment and hire counsel, therefore, he would proceed to trial without counsel. The prosecutor prepared a written waiver of jury and stipulation of evidence, explained them to King and had King sign them. The jury panel was discharged and the court admonished King pursuant to Article 26.13, V.A.C.C.P. The State put on evidence of a prior conviction at the punishment stage. King did not present any evidence.

On December 27, 1976, an evidentiary hearing was held on King’s petition. The evidence adduced at that hearing showed that Jerrell Haberer had made bond for King following his arrest in late August, 1975. King’s brother-in-law, Preysol Hodge, a longtime employee of Haberer had obtained his help. King also worked parttime for Haberer cleaning trailers and digging ditches. Through Johnnie Lee Hodge, King’s sister, it was developed that King had lived with her and her husband. Prior to going to prison he was a farm worker who did odd jobs and was out of work whenever the weather was bad. She said that her brother had little education. King contributed $20-$25 a week toward groceries while living with his sister. Following his arrest his contribution dropped to $5-$10 a week because he had even more difficulty finding employment. The need for counsel was discussed but she and her husband were without funds to assist him and he did not have funds.

Petitioner testified that he did not have an attorney, could not afford an attorney, and was released on bond without having to put up any money. He stated that he had tried to find employment and did work for Curtis Williams for $1.75 per hour. The amount of hours was dependent on the weather and availability of equipment. Williams, called by the State, verified King’s testimony and said the most King would make in a month would be $300.00. King testified that he had gone through the seventh grade in school and had no vocational training.

As to the trial itself, King admitted that he really didn’t want a jury trial because “ . . . what I was trying to get around was facing you [prosecutor] before these twelve jurors. That is what I was trying to get around, because I knew I didn’t have no chance, ‘period’, no kind of chance.” He testified that he had no knowledge of the law nor of his right to appeal and that the only thing he understood of his trial was that “ . . .1 was going to the penitentiary.”

The evidence also showed that King had difficulty reading and that he was an illiterate with an IQ of 80. Cuyler G. Thompson, Assistant Principal of Windham School District, Walls Unit, testified that King was classified as an illiterate and had barely achieved a second grade understanding of such basic educational skills as reading, writing and arithmetic. Roy H. Wilson, manager of the Texas Employment Commission office in Littlefield, testified that while there were many jobs in the area during the period from September, 1975 through February, 1976, he had placed King only on seasonal or spot jobs. King had been in his office on numerous occasions, but he had classified him as a seasonal farm worker who had no skills. Wilson stated that it would be very difficult for a person with an IQ of 80 and who could not read or write to obtain a good paying job.

There is evidence that King attempted to locate an older brother in Dallas to obtain funds to hire counsel.

From the record before us it appears that he did not have funds to pay for his own attorney to represent him in the trial.

The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions an accused shall have the assistance of counsel for his defense. Article 1, Section 10, Texas Constitution, also provides that an accused shall have the right to counsel.

The record does not show that there was a hearing on indigency prior to the trial. We are unable to conclude that because King was free on bond and making at times $70.00 a week warranted the trial court in refusing to appoint counsel.

Article 26.04(a), V.A.C.C.P., provides:

“Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him. In making the determination, the court shall require the accused to file an affidavit, and may call witnesses and hear any relevant testimony or other evidence.”

Brothers are not legally bound to pay for the expenses of an accused in hiring counsel. Even though they assist him in putting up a bond for his appearance, further obligation is not incurred. Even though such relatives of an accused have money, this does not mean a defendant is not indigent. Cf. Conrad v. State, 537 S.W.2d 755 (Tex.Cr.App.1976).

In Conrad, we noted that even though there had been retained counsel at the trial this did not bind counsel to furnish a record at his own expense or to handle the appeal without a fee. The question of indi-gency for appeal purposes is to be determined at the time of the appeal and not at the time of the trial. Barber v. State, 542 S.W.2d 412 (Tex.Cr.App.1976). Likewise, a determination must be made pursuant to Article 26.04, supra, before the trial itself even though an accused is free on bail.

There are no standards set out for the guidance of trial judges in determining the actual indigency of a defendant for purposes of a trial. Each case must be decided upon its facts. Such a determination cannot be made without a hearing on the question of indigency. Petitioner had informed the court that he was without funds to hire counsel. The record before us supports his contention.

The failure to appoint counsel violated his Fourteenth and Sixth Amendment rights under the United States Constitution and his rights under the Texas Constitution. See Ex parte Coleman, 455 S.W.2d 209 (Tex.Cr.App.1970), and Williams v. State, 461 S.W.2d 630 (Tex.Cr.App.1971).

We cannot conclude that petitioner made a voluntary, knowing and intelligent waiver of counsel when he failed to follow the trial court’s instructions to obtain counsel or proceed to trial without counsel. This petitioner was an illiterate as shown at the hearing both by witnesses called in his behalf and by the State. He had at the time of the trial limited, if any, ability to read and write. The record shows that he was unaware and did not understand the proceedings. A defendant may waive his right to counsel if such waiver is made voluntarily and knowingly of the consequences thereof. In Parker v. State, 545 S.W.2d 151 (Tex.Cr.App.1977), this Court wrote:

“Waiver may be defined as ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A waiver of the right to counsel will not be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962); Ex parte Auten, 458 S.W.2d 466 (Tex.Cr.App.1975); Bray v. State, 531 S.W.2d 633 (Tex.Cr.App.1976). A waiver will not be ‘lightly inferred,’ and courts will indulge every reasonable presumption against the waiver of fundamental constitutional rights. Johnson v. Zerbst, supra. And a heavy burden rests upon the prosecution to demonstrate an intelligent, voluntary and knowing waiver of constitutional rights, particularly as applied to the right to retained or appointed counsel. Ex parte Bird, 457 S.W.2d 559 (Tex.Cr.App.1970).
“In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the United States Supreme Court wrote:
“ ‘We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemean- or, or felony, unless he was represented by counsel at his trial.’ ”

We cannot conclude from the record before us that the appellant made a knowing, intelligent and voluntary waiver of his right to counsel even if he had not been indigent. See Parker v. State, supra; Ex parte Herrin, 537 S.W.2d 33 (Tex.Cr.App.1976); and Baker v. State, 519 S.W.2d 648 (Tex.Cr.App.1975).

Petitioner is ordered returned to the Sheriff of Lamb County to answer the indictment in this cause.


author: DOUGLAS, Judge. ROBERTS, Judge,

text:
    Lynn TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 51775.
    Court of Criminal Appeals of Texas.
    May 18, 1977.
    Qlo Crumm, Amarillo, for appellant.
    Randall L. Sherrod, Dist. Atty. and Richard L. Wilcox, Asst. Dist. Atty., Canyon, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Lynn Taylor appeals from a conviction for false imprisonment, a third degree felony under V.T.C.A., Penal Code, Section 20.-02(c).

He contends that the evidence is insufficient to support the conviction and there was reversible error during the prosecutor’s arguments to the jury. We overrule both contentions and affirm.

On the evening of January 25, 1975, at approximately 7:45 p.m., Richard James, the manager of a Safeway store in Amarillo, observed three men enter. The three took a “buggy” and started to shop. Around 8:45 p.m., James looked up from his desk in the office and noticed that they were still there but had split up and gone to different areas of the store. He noticed that the buggy was only partially filled and knew that they had been in the store an exceptionally long time for grocery shopping. They left the store at 9:05 p.m.

James testified that the store meat locker was required to be kept at a temperature between 30 and 38 degrees. The Health Department made periodic checks and only recently found it in compliance. He also stated that the locker door was equipped with a safety feature to prevent someone from being trapped therein, an inside release mechanism.

Gloria Currie, on duty at the checkout stand the night of the offense, testified that the three men appeared to be watching her the entire time they were in the store. One of the three kept trying to get her to go back to the freezer area. She was so uneasy she notified James. Currie stated that the three men left the store without buying anything. Their partially filled cart had been left near the frozen food section near the freezer. Two knives were on top of the cart; one had been removed from its package.

Joe McMahan, the assistant manager, testified that on the night in question he was the butcher and supervisor of the cold storage locker. His duties included checking the temperature within the locker. McMa-han stated that the temperature reading is taken from the center part of the locker and maintained at that point between 30 and 38 degrees. The coldest part of the cooler would be the concrete floor. McMa-han said that the temperature range was necessary to protect the meat yet not freeze it. The meat is kept hanging since the top of the locker is warmest and if allowed to lie on the concrete floor it would probably freeze.

Randall Bright and Monroe Davis, the complaining witnesses, were the two young men imprisoned by appellant and another in the locker. Both were employees of the store. Bright testified that appellant and another man approached him in the stock room and asked for some empty boxes. As Bright looked for empty boxes appellant pointed to a box next to the meat locker. Bright went to get the box for them. As he did, the other man grabbed him and pushed him in the meat locker. The two men then “. . . put tape around my mouth, all around my head and then told me to put out my arms and put tape around my arms, around my wrists.” Then they made him lie on the concrete floor, removed his belt and tied his feet. Davis, bound in the same manner, was lying on the concrete floor. Bright and Davis both were clad only in short sleeve shirts and pants.

Davis related the same story about appellant and his companion inquiring for empty boxes. As he tried to reach a box next to the meat locker, one of the two men grabbed him by the neck, actually choking him, and pulled him to the floor. The other started taping him. He testified that the bottom of his arms was beginning to be frostbitten. “I began to lay on my chest-hold my arms up trying to warm them up a little.” His arms were in contact with the concrete floor which he stated was very cold.

The State contends that “[b]ound and gagged as Bright and Davis were, the jury could find that they were exposed to a substantial risk of frost-bite, pneumonia, or any of the other well-known health hazards associated with near-freezing and sub-freezing temperatures hazards clearly meeting the law’s definition of serious bodily injury-”

The evidence was sufficient for the jury to find a “substantial risk of serious bodily injury.” Webster’s New International Dictionary (1917) defines “substantial” as “not seeming or imaginary; not illusive; real; true.” It is defined in Webster’s Seventh New Collegiate Dictionary (1963) as “real, true.” McMahan testified that the locker was coldest on the concrete floor. He was asked, “And, if meat was placed on the floor, would that freeze it?” He answered, “Very could, possibly, yes, sir.” It is common knowledge that human flesh will freeze. Bright’s and Davis’ escape is of no consequence. They did not escape with the help of the three men. The method by which they were bound shows appellant’s intent to leave them there for an indefinite period of time. The evidence shows that they unsuccessfully attempted to lure Gloria Currie to the same meat locker. It was near closing time and the two young men may not have been discovered. Davis testified that he was “real cold”, that he was beginning to feel frostbite in his lower arms. Likewise, it is inconsequential that appellant or his companion did not lock the door. As long as the two were inside the locker bound and tied, the three apparent robbers did not expect them to use the door. It would be unreasonable to believe that if appellant and the other two had completed their apparent mission of robbery, by locking all of the employees in the locker, they would have later released them.

The evidence is sufficient to show that when the two young men were bound and gagged and left on the freezing floor inside the locker there was a substantial risk of serious bodily injury and they were intentionally restrained.

Next, he complains of the trial court’s refusal to grant his motion for mistrial following his objection to certain remarks by the prosecutor. The remarks are as follows:

“I ask you to consider that — I ask you to consider the fact that it could have been filed in County Court as a misdemeanor. But, we brought it to the Grand Jury, and the Grand Jury, based on the evidence we brought before them, found this should be brought as a felony offense in this court.”

Following counsel’s objection and motion for mistrial, this court instructed the jury that it had previously been charged that any action taken by the grand jury was not evidence and instructed them to disregard the prosecutor’s statement. An instruction to disregard jury argument is ordinarily sufficient to cure any error. Anderson v. State, 504 S.W.2d 507 (Tex.Cr.App.1974); Hunnicutt v. State, 500 S.W.2d 806 (Tex.Cr.App.1973).

The judgment is affirmed.

ROBERTS, Judge,

dissenting.

Appellant challenges the sufficiency of the evidence. His basic contention is that there is no evidence to support the allegation that the complaining witness was recklessly exposed to a substantial risk of serious bodily injury. Such element must be proven in order to elevate false imprisonment from its Class B misdemeanor punishment classification to that of a third degree felony. V.T.C.A., Penal Code, Section 20.-02(c).

The record reflects that appellant and two companions entered a Safeway store in Amarillo, Texas, on January 25, 1975. Within the store was a meat cooler in which two store employees were placed by appellant and his companions. Randall Bright, one of the two employees, testified that he was tied up by appellant and placed in the meat cooler. Bright testified that the complaining witness, Monroe Davis, was already tied up and in the meat cooler when the appellant and his companions placed Bright in the meat cooler.

Monroe Davis testified that when he was bound, gagged and placed in the cooler by appellant’s companions, he was dressed in blue jeans and a short-sleeved shirt. He was laid on the concrete floor of the cooler, and was beginning to experience discomfort to his arms from the cold before he and Randall Bright were able to extricate themselves. Such extrication occurred approximately ten minutes after Bright was bound and placed in the meat cooler.

Joe Clyde McMahan, assistant manager of the Safeway store, testified that part of his duties included supervising the cold storage locker where the complaining witness and Bright were placed by appellant and his companions. He testified that the temperature range in this locker was usually between 30 to 38 degrees, Fahrenheit. He testified that the floor of the meat locker was concrete and that in his opinion it would be the coldest part of the freezer. He testified that the temperature is taken from a center point in the freezer, and that he tried to keep the meat locker “cold enough and not freeze the meat.” He testified that one thermometer measured the uppermost portion of the meat locker and it usually read about 40 to 41 degrees, Fahrenheit; that the 30 to 38 degree Fahrenheit reading came from the center part of the meat locker, but that he had never taken the temperature on the floor.

The State contends that “Bound and gagged as Bright and Davis were, the jury could well find that they were exposed to a substantial risk of frost-bite, pneumonia, or any of the other well-known health hazards associated with near-freezing and sub-freezing temperatures, hazards clearly meeting the law’s definition of serious bodily injury.”

Section 20.02(c), supra, provides:

“An offense under this section is a Class B misdemeanor unless the actor recklessly exposes the victim to a substantial risk of serious bodily injury, in which event it is a felony of the third degree.”

V.T.C.A., Penal Code, Section 6.03(c), provides:

“A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

V.T.C.A., Penal Code, Section 1.07(34), provides:

“ ‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

From the record before me, I cannot say that there was sufficient evidence to support a fact finding that the appellant recklessly exposed the victim to a substantial risk of serious bodily injury. I would be more inclined to hold the evidence sufficient if the pertinent facts were more than that the complaining witness was bound in such a manner that he could escape in ten minutes and put in a meat locker equipped with an inside release mechanism that had a temperature range of 30 degrees to 41 degrees, Fahrenheit. I would also be similarly influenced if the record contained direct evidence that the above pertinent facts constituted a “real” and “true” risk of frostbite instead of revealing a witness prompted to use that term who admitted on cross-examination that his arms weren’t frostbitten but were “just real cold.” The complaining witness and Bright were able to untie themselves and leave the meat cooler in a matter of minutes. There is no evidence in the record that the appellant or his companions locked the doorway to the meat cooler. There is no direct evidence indicating that appellant’s actions constituted a substantial risk of “serious bodily injury” to the complaining witness, as that term is above defined. A circumstantial evidence charge was given, and under such the jury could have inferred that a substantial risk of serious bodily injury was present. However, from the record, I do not feel that the evidence excludes, to a moral certainty, every other reasonable hypothesis except that of a “substantial risk of serious bodily injury.”

While the evidence is sufficient to support a Class B misdemeanor false imprisonment, it is insufficient to support a third degree felony false imprisonment. What happened to the two young men was unfortunate and should not have occurred; appellant can and should be punished for his actions, but I cannot say that the State proved what it pled.

The judgment should be reversed and the cause remanded.

      . The appeal was originally abated so that counsel could be appointed to file a brief for appellant who was determined to be indigent.