author: DAUGHTREY, Judge.

text:
    Noah HAWKINS, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    July 12, 1976.

      James N, Ramsey, Oak Ridge, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, James B. Scott, Jr., Dist. Atty. Gen., Clinton, for defendant in error.
   DAUGHTREY, Judge.

OPINION

The defendant Noah Hawkins, together with a co-defendant Donnie Carl Roaden, was indicted for burglary, larceny, and receiving stolen property in connection with an Anderson County church break-in on March 22, 1975. Taken in the burglary were six heaters, a window fan and a wall clock, worth a total of $285.00. Prior to trial Roaden pleaded guilty to a lesser offense and was serving a penitentiary sentence at the time Hawkins was tried.

The jury found the defendant guilty of grand larceny and sentenced him to not less than three nor more than five years imprisonment. On appeal he raises five assignments of error: (1) an allegedly erroneous charge by the court on witness demeanor and credibility; (2) the court’s failure to grant a motion in limine to exclude evidence of the defendant’s past criminal record; (3) the insufficiency of the evidence to support the verdict; (4) the failure of the trial court to direct a verdict of not guilty; and (5) the refusal of the trial court to suppress certain evidence which the defendant says was illegally seized under the Fourth Amendment to the United States Constitution.

We note first of all that the alleged error in the charge to the jury was not assigned as a basis for relief in the defendant’s motion for a new trial. Under well-settled law in this State, the issue cannot now be raised on appeal unless it amounts to plain error affecting the “fairness, integrity, or public reputation of judicial proceedings.” Manning v. State, 500 S.W.2d 913 (Tenn.1973). See also Pruitt v. State, 3 Tenn.Cr.App. 256, 460 S.W.2d 385 (1970). Under Tennessee law the trial court will not be put in error on matters not brought to its attention for correction in the motion for a new trial. See Rule 14(4) and (5) of the Tennessee Supreme Court Rules as adopted by this Court, 2 Tenn.Crim.App. 746 (1967); Harrison v. State, 532 S.W.2d 566, 569 (Tenn.Crim.App.1975). We have looked at the instruction complained of, and we find not only the absence of “plain error” but also the absence of any error whatsoever. The assignment is untimely and without merit, and is therefore overruled.

A review of the record also shows that no error was committed by the trial court in overruling the defendant’s motion in limine. The granting of premature motions to exclude evidence at trial addresses itself to the sound discretion of the trial judge, and we find no proof of abuse of that discretion on the record before us. Furthermore, the evidence sought to be excluded by the preliminary motion was never the subject of testimony by the State’s witnesses. The only reference to the defendant’s past behavior was injected into the record by his attorney, who engaged in the following colloquy on cross-examination of the arresting officer:

Q: When you saw them, you felt they were up to no good, didn’t you?
A: Yes sir.
Q: That is because you knew them, isn’t it?
A: Yes sir.

All other references to the defendant’s background were made outside the hearing of the jury. In the absence of any proof of prejudice to the defendant, this assignment must be overruled as being without merit.

The remaining assignments of error concern the sufficiency and admissibility of the evidence presented at trial. The State’s proof showed that at about 2:00 A.M. on March 22 a police officer patrolling within the city limits of Clinton, Tennessee spotted the defendant’s car stopped in a field some distance off the roadway. The field had been graded and packed down by developers working in the area, and the patrolling officer had been asked to check periodically on machinery parked in the field. He testified that his attention was drawn to the car when its lights were suddenly switched on. As the officer approached the car was driven out of the area at a rapid pace, “as though [the driver] was going to try to get away.” The officer turned on his blue lights and quickly stopped the car. The defendant was driving; when asked for his driver’s license he replied that he had none. The officer told the defendant he was under arrest for failure to have a proper license and asked him to get out of the car. The officer then shone his flashlight into the car to check the other occupants and discovered the co-defendant Roaden in the front seat, and Roaden’s teenage son in the backseat along with two large heaters and a window fan. The officer asked the defendant what he had been doing in the development area and the defendant responded that he had pulled off the road to check a tire. The officer then asked where the heaters in the backseat had come from and was told that they had been retrieved from a “dumpster up the road.” The officer testified that at this time his suspicions were aroused by the fact that the equipment looked too new to have been discarded. He radioed for a member of the Sheriff’s Patrol, who took the defendant into custody and had the car towed in. The Sheriff’s deputy had a conversation with the younger Roaden at the scene, and then took the three occupants of the car to the Sheriff’s office, holding the defendant on the motor vehicle charge and the co-defendant for “investigation.” As a result of the information he had gained from Roaden’s son, the Sheriff’s deputy went to the Hines Creek Baptist Church about 5:00 A.M. and discovered that it had been burglarized during the night.

At 9:00 A.M. that morning the Anderson County Sheriff’s chief deputy advised the defendant of his Miranda rights and obtained a written waiver from him. A few minutes later the defendant signed a consent to search form, by which he acknowledged that he had been advised of his “constitutional right not to have a search made” of the automobile described on the consent form. The officer then went to the defendant’s impounded automobile and searched it, finding two heaters and the fan in the backseat, and the remaining heaters and the wall clock in the trunk of the car.

The only defense witness at trial was the co-defendant Roaden, who testified that he was solely responsible for the burglary and theft at the church. He said that the defendant (his brother-in-law) had been drinking all day and was asleep on the backseat of the car during the commission of the crime.

We think this review of the evidence at trial clearly refutes the defendant’s contentions that a verdict of not guilty should have been directed and that the evidence was not sufficient to sustain the verdict reached by the jury. The defendant has failed to carry this burden of showing on appeal that the evidence preponderates in his favor. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). The assignments regarding the weight and sufficiency of the evidence are overruled.

We also think the defendant has failed to establish the inadmissibility of the evidence taken from his car on the date in question. We begin, as we must, with the premise that “under the Fourth and Fourteenth Amendments, that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable subject only to a few specifically established and well-delineated exceptions.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973); see also Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). The seizure resulting from the war-rantless search in this instance can be justified under either one of two well-recognized exceptions to the warrant requirement, and therefore we conclude that the evidence was properly admitted.

We note initially that the case before us must rise or fall on the validity of the initial stop, which of course must be justified as reasonable and proper under the Fourth and Fourteenth Amendments to the United States Constitution. Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Whereas under our statutes and case law a warrantless felony arrest must be based on probable cause, the United States Supreme Court has recognized that not every investigative contact between police officer and citizen must be supported by probable cause.

The issue was first addressed by the Court in Terry v. Ohio, supra. There the Court determined that a “stop,” although falling short of a “full-blown arrest,” is nevertheless a “seizure” of the person within the meaning of the Fourth Amendment. The Court went on to say:

(I)n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. . . . (I)n making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate?
Applying these principles to this case, we consider first the nature and extent of the governmental interests involved. One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. It was this legitimate function Officer McFadden was discharging when he decided to approach petitioner and his companions. He had observed Terry, Chilton, and Katz go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation. 392 U.S. at 21-22, 88 S.Ct. at 1880.

This “reasonable suspicion” basis for a temporary investigative stop (a “Terry stop”) was upheld in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). There the Court said:

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. 407 U.S. at 145-46, 92 S.Ct. at 1923 (citations omitted).

The officer at the trial of this case was able to articulate the facts which caused him to make the stop: the circumstances of location, time of day, and furtive conduct by the driver of the car. We con-elude that under these circumstances the stop was reasonable, and further that the officer’s request to the defendant to produce his license as proof of identity was a reasonable investigative practice. State v. McLennan, 503 S.W.2d 909, 910 (Tenn.) cert. denied, 414 U.S. 1112, 94 S.Ct. 843, 38 L.Ed.2d 739 (1973). Indeed, we think it would have been unreasonable for the officer not to have investigated the situation under this set of facts.

The officer was certainly justified in making a cursory visual inspection of the defendant’s companions, the other occupants of the ear. In so doing, he saw several items in plain view from his vantage point outside the car. These circumstances, together with statements made by occupants of the ear, were sufficient in our view to establish probable cause to believe that a crime had been committed and that the occupants of the ear were involved in its commission. In addition the car was capable of being quickly moved out of the locality or jurisdiction in which any search warrant would have been sought. The existence of probable cause to search coupled with the exigent circumstance of the automobile’s mobility makes this situation a valid exception to the warrant requirement of the Fourth Amendment, and thus any search of the car on the highway would have been legal. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). In Chambers the United States Supreme Court held that if an automobile could have been validly searched on the street, it could later be searched after being impounded, without the necessity of a warrant. Id. at 52, 90 S.Ct. 1975.

Furthermore, in the case before us we have a written consent to search executed by the defendant prior to the actual search and seizure of which he complains. The voluntariness of the consent was not contested at trial, nor does the defendant allege on appeal that it was coerced. The consent therefore satisfies not only the minimum standard required by Schneckloth v. Bustamonte, but also meets the even higher waiver standard, in that the defendant was fully informed that he could withhold consent and was given simultaneous Miranda warnings. See Schneckloth v. Bustamonte, supra, 412 U.S. at 235-46, 93 S.Ct. 2041.

The defendant alleges in his brief that his consent was invalid because it was the product of the “original warrantless search at the scene of the arrest.” But we have already determined that the officer’s inadvertent discovery of the stolen property in the backseat of the car, as a result of lawful conduct on his part, was not a search within the meaning of the Fourth Amendment. See Harris v. United States, 390 U.S. 234, 236, 91 S.Ct. 643, 28 L.Ed.2d 1 (1968); Coolidge v. New Hampshire, 403 U.S. 443, 465-70, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In Cady v. Dombrowski the United States Supreme Court made certain observations which, while not central to its holding, we take to be highly relevant here:

Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. .
The constitutional difference between searches of and seizures from houses and similar structures and from vehicles stems both from the ambulatory character of the latter and from the fact that extensive, and often non-criminal contact with automobiles will bring local officials in “plain view” of evidence, fruits, or instrumentalities of a crime, or contraband. 413 U.S. at 441-42, 93 S.Ct. at 2528.

We conclude that the evidence taken from the backseat and trunk of the defendant’s automobile was not the product of an illegal or tainted search and seizure, and therefore was fully admissible at trial. This final assignment of error is accordingly overruled.

The judgment of the trial court is affirmed.

DWYER and O’BRIEN, JJ., concur.


source: Caselaw Access Project

author: DUNCAN, Judge.

license: Public Domain

text:
    Billy HULL, Petitioner, v. STATE of Tennessee, Respondent.
    Court of Criminal Appeals of Tennessee.
    Aug. 10, 1976.
    Certiorari Denied by Supreme Court Nov. 1, 1976.

      Jerry H. Summers, Chattanooga, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Gary D. Gerbitz, Dist. Atty. Gen., Chattanooga, for respondent.
   OPINION

DUNCAN, Judge.

The petitioner, Billy Hull, has filed a petition for writ of certiorari requesting this Court to review the trial judge’s denial of his motion to allow more than two sureties to execute a $50,000.00 appeal bond in his case.

The petitioner was indicted by the Hamilton County Grand Jury for murder and accessory before the fact to murder on October 29, 1975, and surrendered to the authorities on October 30, 1975. He was initially denied bond, but after a ruling by a panel of this Court on November 24, 1975, authorizing bond, the trial court, on motions of the petitioner, set an appearance bond at $25,000.00, and allowed the bond to be executed by more than two sureties, which is sometimes referred to as “stacking” of bonds. On April 24, 1976, petitioner was convicted of accessory before the fact to murder in the first degree and received a penitentiary sentence of 20 years and 1 day. The trial court set an appeal bond in the amount of $50,000. On June 4, 1976, the trial court denied the petitioner’s motion to again allow “stacking” of appearance bonds by sureties.

It appears that the criminal courts in Hamilton County, by rule or practice, restrict professional bonding companies from executing appearance bonds in excess of $10,000.00, and that “stacking” of appearance bonds is not permitted except by specific order of the trial court.

As a basic proposition, we see nothing inherently wrong with these bond procedures utilized by the Hamilton County Criminal Courts. A trial court has full authority to determine who should be allowed to make bonds in its court. Gilbreath v. Ferguson, 195 Tenn. 528, 260 S.W.2d 276 (1953). Also, it is the trial court’s function to regulate the professional bondsmen that execute bonds in its court, and it may impose reasonable limitations on the total liability of such bondsmen’s undertakings in that court. T.C.A. §§ 40-1405, 40-1406. Further, a trial court has the inherent power to administer its affairs, including the right to impose reasonable regulations regarding the making of bonds. Taylor v. Waddey, 206 Tenn. 497, 334 S.W.2d 733 (1960).

We are in full agreement with these basic principles of law; however, in matters of the kind before us, each case must be reviewed in light of its own facts. We draw attention to T.C.A. § 40-1214, which provides:

“Bail, when not taken in open court, is given by a written undertaking, signed by the defendant and at least two (2) sufficient sureties, and approved by the magistrate or officer.”

Further, T.C.A. § 40-1219 allows more than two sureties to execute a bond. This section provides:

“Each of the sureties shall be worth the amount expressed in the undertaking, subject to execution; but the court, magistrate, or officer in taking bail, may allow more than two (2) sureties to justify severally in amounts less than that expressed in the undertaking, if the whole qualification be equivalent to two (2) sufficient sureties.”

T.C.A. § 40-1204 authorizes the trial judge to admit a convicted defendant to bail upon appeal; however, under T.C.A. § 40-3406, it is in the trial judge’s discretion as to whether he will allow bail pending appeal. Where, as here, the trial judge has decided that an appeal bond would be in order and has set it, then in the absence of adequate and justifiable reasons expressed in the court’s order to show otherwise, we are of the opinion that the provisions of T.C.A. § 40-1219 — allowing more than two sureties to execute the bond — should apply.

In the trial court’s order overruling the petitioner’s motion to allow more than two sureties to individually secure portions of the specified amount of the bond, no reason is given for such denial, except that the defendant, upon conviction, was no longer “clothed with the presumption of innocence.” We do not think this is a sufficient reason, for if it were the only rule to be applied, then no convicted defendant could ever be aided by the provisions of T.C.A. § 40-1219. Any hard and fast rule that would prevent more than two sureties from assuming the obligation of a bond in an amount equivalent to two sureties would, in some cases, result in a denial of bond.

The State argues that a surety who assumes responsibility for only a portion of the total bond would not have as great an incentive to insure a defendant’s presence in court, as he would had he assumed full responsibility for the total bond. This argument, however, is countered by the fact that the more sureties there are on a bond, the more persons there are available to insure that a defendant does not flee, or if he should flee, there would be more persons available to aid in his apprehension.

In the present case, the trial court ruled that the petitioner was entitled to an appeal bond and set it at $50,000.00, but would not permit the “stacking” of bonds. Under the facts of this case, we find no adequate and justifiable reasons why petitioner’s appeal bond should not be secured by more than two sureties; therefore, we hold that more than two sureties may execute the petitioner’s bond severally in amounts less than the total undertaking expressed, provided the whole qualification be equivalent to two sufficient sureties, all in accordance with the provisions of T.C.A. § 40-1219.

To the extent expressed herein, the petition is sustained. Judge Lockard, member of this panel, did not participate in this decision.

BYERS, J., concurs.


author: RUSSELL, Judge.

text:
    Dorothy FRANKS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 17, 1976.
    Certiorari Denied by Supreme Court Oct. 4, 1976.

      Edgar H. Gillock and Eugene D. Lyne, Memphis, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, John L. Williams, Dist. Atty. Gen., Huntingdon, for appellee.
   OPINION

RUSSELL, Judge.

This ease is before us to review the action of the trial judge in overruling a petition for a suspended sentence. We hold that the action of the trial judge is not adequately supported by the record, and remand the case for a new hearing.

Dorothy Franks entered a plea of guilty to a charge of selling a schedule II controlled substance, and was sentenced to the minimum of not less nor more than four years in the penitentiary. Appeal of the conviction was expressly waived and she was permitted to remain on bond pending the filing of and hearing upon a petition for a suspended sentence.

The evidence presented in support of the petition for probation was uniformly favorable, except for the fact that Mrs. Franks herself testified in passing that she had made other drug sales to truckers. (She was convicted of selling 200 amphetamines to an undercover agent; and testified that she had been selling drugs to truck drivers at the truck stop where she worked.) The probation officer’s report, a certified copy of which we have but which was not properly included in the record, reflects basically favorable information; but contains no recommendation. The District Attorney General not only declined to make a recommendation, but failed to put on any proof or to significantly participate in the hearing.

The learned trial judge, while relating that he had never suspended a sentence in a “hard drug” selling case, averred that he had not pre-judged this case and considered it upon its merits. His order denying the petition sets out no basis for the denial, saying only “This motion is denied”. The transcript of the hearing reflects these pertinent statements by the trial judge:

“ * * * I think that you are correct in stating that it is a great burden on the Court, on any of these matters involving suspended sentences. And I will add this: I don’t know of a case with any greater burden than the ease we have here. This case has the most sympathetic appeal, I think. You have a lady involved who has no prior criminal record, her husband has left her, she has two minor children, and her story is that she became involved with a man in here selling drugs, and fell in love with him. I noticed _ _ _ quoting a judge in Nashville the other day, telling a young lady what people, ladies, will do for men sometimes and get them into trouble . _ _ and, of course, I think the same thing works the other way . _ _ when people come under the influence of someone else, sometimes it gets them into trouble.
“All of these matters that you have presented here makes out a most sympathetic ease, Mr. Gillock. It is a matter, as I stated before, it is a great burden on the Court to have to pass on these matters, and especially such a case as this. Where cases do not involve such matters of sympathy as these are not too difficult for the Court. And in addition to that you have brought some good citizens here in Hardin County, who this Court has known for a long time, and has the most respect for.
“Gentlemen, taking this case all around, Mr. Gillock, this Court, as before I have told you that I would not say that I would not suspend the sentence in this case, if the facts were shown to justify the Court to do so. I don’t pre-judge a case. I did advise him [Mr. Gillock] on this, and he says that they do it different in other jurisdictions, and I think that he should be advised as to how this Court proceeds, as to how to present his matter, and in all fairness to his client. But Mr. Gillock, in a case involving this amount of drugs _ _ Schedule II drugs . _ the Court has never suspended a sentence. The proof in this case will show that this lady actually sold 200 tablets . . this is not a casual delivery . _ it was 200 tablets sold at this truck stop _ _ of a drug that is listed in Schedule II. Gentlemen, taking that into consideration, the type of drugs involved, and the amount of drugs involved, the Court does not feel that this is a proper case for a suspended sentence. It may be a matter that should be presented to the parole board at a later date. Because of the woman’s record, and the matters presented here, it may be that, well, just a matter of normal procedure, that can develop later. But the Legislature has set this minimum sentence here on such an offense as this at four years, and the State recommended the minimum sentence of four years, without any fine. I do not think that this is * * * so let your motion be overruled.”

It seems fair to say that this judgment was based upon the nature and character of the offense. We hold that this was too narrow a view of the relevant factors to be considered, and remand the case for the development of all pertinent matters of fact, and a judgment based thereon.

The nature and character of the offense was set out in the indictment, and in the Attorney General’s statement of facts upon which the conviction was based. The Legislature clearly intended that persons guilty of this very crime, of this nature and character are proper subjects for consideration for probation, T.C.A. § 40-2901. That being true, it is error to foreclose suspension of such a sentence solely upon the ground of the amount and classification of the drugs sold.

We do not mean to say that it was error to refuse probation in this case. We hold only that it was error not to consider all of the relevant factors. Those are discussed in the recent Supreme Court case of Stiller v. State, Tenn., 516 S.W.2d 617 (1974):

“[10] The majority opinion of the Court of Criminal Appeals proceeds upon the general basis that the ‘enormity of this defendant’s crime’ precluded the suspension of his sentence and placing him on probation. That this is a legitimate factor for the Court to consider is beyond question but it is equally beyond question that it is but one of a number of considerations by which the Court must be guided in determining whether to grant or withhold suspension and probation. Other statutory considerations are the defendant’s criminal record, social history, present condition and, in proper cases, his physical and mental condition, * * * ”

This Court has recently spoken to this question in the case of Mattino v. State, Tenn.Cr.App., 539 S.W.2d 824 (1976). On the subject of the nature and circumstances of the offense as a factor in the judgment upon a petition for probation, this Court said:

“This is not to say that the nature and circumstances of an offense could never provide a sufficient basis for denial of probation. Crimes of violence against the person, or particularly heinous crimes might indeed be the controlling factor in a probation determination. But these crimes are likely to be perpetrated by persons whose backgrounds are largely dissimilar to the defendant’s. In any case, plainly the crime charged here is not of such nature nor the circumstances of its commission such as to constitute a legal barrier to probation. * * * ”

The Legislature has clearly spoken to the question of what class of offenses are eligible for consideration for probation. Misdemeanors and “any felony the maximum punishment for which does not exceed ten (10) years’ confinement in the state penitentiary” was the language of the pertinent statute, T.C.A. § 40-2901, until the effective date (March 17, 1976) of Chap. 532, Public Acts 1976, which amended the statute to permit suspension in felony cases wherein the actual, as contrasted with potential, maximum sentence did not exceed ten years, subject to certain exceptions not applicable to the case at bar. In other words, the offense for which Dorothy Franks was convicted is clearly one which the Legislature has determined should, upon the filing of a proper petition, be considered for a sentence suspension. The factors to be considered include those set out in T.C.A. § 40-2904. Stiller v. State, supra; Mattino v. State, supra.

In Mattino this Court found an abuse of discretion and indicated that the trial Court should grant probation upon proper conditions. We did not explicitly order probation; but under the rather complete record in that case, and the finding of an abuse of discretion, it was assumed that the trial Court would grant probation without a further hearing. To the extent that Mattino can be said to have involved a granting of probation by this Court, we limit its application to its facts.

In the case at bar we reverse the judgment of the trial Court, and remand the case for a new hearing upon the petition for a suspended sentence. The trial judge will consider all of the pertinent factors, and make an explicit judgment thereon for the record. A new and more detailed probation officer’s report, per T.C.A. § 40-2904, would be useful. It is always appropriate for such a report to include a recommendation, although certainly the trial judge is not bound by it. We would also emphasize to the District Attorney General that his role should be more than detached neutrality. Our Supreme Court said in Stiller:

“[5] The District Attorney General, on the trial level, and the State Attorney General, on the appellate level, not only have solemn obligations to espouse the causes of the meritorious petitioner, but also to protect and promote the public welfare by standing in unalterable opposition to the unworthy.”

The learned trial judge permitted Dorothy Franks to make bond pending the original hearing upon the petition for a suspended sentence. We will allow her to continue upon her present bond pending the new hearing, absent some cause for revocation.

Reversed and remanded.

WALKER, P. J., and GALBREATH, J., concur.


author: DOUGLAS, Judge. ROBERTS, Judge

text:
    Leroy LAFOON, Appellant, v. The STATE of Texas, Appellee.
    No. 51256.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1976.
    Rehearing Denied Dec. 15, 1976.
    Ronald W. Aultman, Jerry J. Loftin and Jack S. Neal, Fort Worth, for appellant.
    Jerry W. Woodlock, Dist. Atty. and William B. Sullivant, Asst. Dist. Atty., Gaines-ville, 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 murder with malice. The jury assessed punishment at life. The case was tried in Wichita County after a change of venue from Jack County.

Appellant has set forth eight grounds of error for consideration by this Court. Since the fourth ground challenges the sufficiency of the evidence, we will discuss it first.

This is a circumstantial evidence case, and the record is voluminous. Appellant and three others, Charlotte Hamilton La-foon, Ralph Brown and Doris Brown, were indicted jointly for the murders of Edith Shores, also known as Edith Rogers and DeAnn Cloninger. A severance was granted and appellant was tried for the murder of Edith Shores.

The evidence before us shows that on the night of April 14,1971, George Carl Robertson, Edith Shores and DeAnn Cloninger burglarized the house of Ralph and Doris Brown in Fort Worth. Virginia Garrett, a neighbor of the Browns, testified that approximately one week prior to the burglary of the Browns’ house she was next door at the Browns’ and had observed appellant threaten DeAnn Cloninger with a shotgun. She stated that on the night of April 14, 1971, at approximately 10:00 p. m., as she was getting ready to go to bed, she heard a lot of noise outside. She looked out her window and saw two women and a man. She recognized one of the women because of her platinum colored hair as the same woman who had been waiting in the car for DeAnn the night DeAnn had been over to the Browns’ house with her baby the week before. Then, approximately thirty minutes to an hour later, Doris Brown came over and asked her to come over to their house after it had been burglarized. Doris Brown then called appellant who arrived shortly thereafter at the Browns’ home with Charlotte Hamilton. A conversation then took place between the four — Ralph and Doris Brown, appellant and Charlotte Hamilton — concerning the two deceased women as being the burglars and that they should be killed. One of the two men made a statement that he was going to beat the woman to death with the dead dog. The Browns’ pet dog had been killed during the burglary. Appellant said, “Let’s all go get 'em.” Doris Brown then called Edith Shores after which appellant was heard to say that he wanted to go find the two women before they had a chance to unload any of the things taken. Appellant said he knew the street on which Edith Shores and DeAnn Cloninger lived, and the four then left in his car. Garrett returned to her house. Approximately two hours later they returned and Doris Brown again came over to Garrett’s house and asked her if she had seen anything. She returned to the Browns’ home. A discussion then took place between appellant and Doris Brown wherein she told him what had been taken in the burglary, a television set, record player, some shortwave radio equipment, a Hoover rug shampooer and a metal box containing some papers. Two days later, April 16th, at approximately 2:00 p. m., appellant accompanied by Doris Brown and Charlotte Hamilton borrowed Garrett’s car to go to appellant’s apartment for some clothes and to do their laundry. Allegedly their car was not running and, therefore, they needed her car.

About 4:00 p. m., Doris Brown called Garrett and told her that they had located their stolen things and would be late in returning. When Garrett told her that she needed a car, she (Doris Brown) said for her to use hers. Doris further related that she, Ralph Brown, Charlotte Hamilton and appellant were waiting for someone. About 3:00 a. m. the next morning, Garrett heard a car back up to the Browns’ house next door. It was her car and in it were appellant, Doris Brown, Ralph Brown and Charlotte Hamilton. She noticed that the car was very muddy. The four were unloading some boxes out of the car and also a television set. When they finished unloading the car, Charlotte Hamilton and appellant left and Doris Brown came over to Garrett’s house and said to her, “About your car; Leroy has gone to wash it; he wouldn’t bring it home like that.” She described Doris Brown’s appearance at the time as “. . . muddy and she had blood on her arm and her blouse. Her arm was all swelled up.” She then inquired of Doris Brown, “What in the world happened?” to which Doris replied, “Leroy and I got two of them but we’ve got one more to go.” Two or three days later Doris Brown gave Garrett the tennis shoes and clothes she had been wearing that morning and asked her to get rid of them on her way to California. Doris Brown had also told her that they had found out that there was a third burglar. She said that she had gotten muddy when they (Doris Brown and appellant) had to move a log and she fell. Approximately an hour or so later appellant came to Garrett’s house. She described him as being muddy and bloody, with the largest amount of the blood down his back and the most mud on the seat of his pants. Garrett then testified that, while Doris Brown was telling appellant about a little pin cushion that Edith Shores and DeAnn Cloninger had taken, he replied, “Well, it’s one thing; they won’t ever rob anyone else.” She further related that she had to use her car at approximately 6:30 a. m. or 7:00 a. m. and it had been washed. However, she discovered blood on the inside of the car and a child’s moccasin was under the front seat of the car. Later that morning, Doris Brown brought over a wig and asked her to dye it. Doris told her that the wig belonged to Charlotte Hamilton. The wig was later identified as actually belonging to Edith Shores, the deceased.

Sam Burroughs, an officer of the Lake Worth Police Department, testified as to the items reported to him as stolen by Ralph and Doris Brown. The list included an eighteen-inch black and white Motorola television; one Realistic high and low band radio; an AM-FM radio; one Savage twelve gauge automatic shotgun; one nine millimeter Browning automatic pistol; one Realistic portable record player, one Hoover rug shampooer; one metal file box containing beads, jewelry and numerous pieces of TV testing equipment. A portion of these items were the same items Garrett had observed being returned to the Browns’ house the night her car was used by appellant. These same items were identified by Carl George Robertson as the items he and the two deceased women had taken when they burglarized the Brown house. Robertson also identified some of the items as having been in the possession of the two deceased women. These same items were found back in Ralph and Doris Brown’s possession when they were arrested on June 2, 1971. Robertson further testified that after the burglary they had gone back to DeAnn Cloninger’s house and while they were there a telephone call was received from Doris Brown. He stated that he next saw the two deceased women at approximately 1:30 p. m., April 16th at the Twilight Lounge. DeAnn had her baby, Gina, with her. Gina was dressed in a little red housecoat and moccasins. He identified State’s Exhibit No. 4 which had been found in Virginia Garrett’s car as resembling the moccasins Gina had on.

Officer A. E. Bruton of the Fort Worth Police Department testified that at 2:47 a. m. on April 17, 1971, he went to 3100 Win-gate to investigate a complaint about a baby crying. He arrived at 2:50 a. m. but was unable to locate the source of the crying. At 3:29 he received a second call to return to 3100 Wingate and make further investigation. He then found a baby in the back seat of an automobile parked in the parking lot two spaces away from the Dempsey Dumpster. The little girl, named Gina, was clad in a red housecoat and had on one moccasin which was similar to the one found in Garrett’s car.

Edna L. Kennedy then testified that she and her husband lived in the Wingate Apartments on April 17,1971, and that both she and her husband worked shift work from 3:30 till midnight; that she and her husband worked until 1:00 a. m. on April 17 and went home. At approximately 2:30 a. m., her attention was drawn to a motor running “[bjecause it ran longer than most people do when they drive up, tell someone goodnight, then they go on.” She pulled the drapes back and observed a man looking at ears in the parking lot and attempting to get into them. Then she saw him open up the left rear door of a car parked in the second space away from the trash dumpster and then walk back to a white car sitting in the parking lot with its engine running. She momentarily quit looking out from behind the drapes. When she looked out again the white car was gone and the door of the car she had seen opened by the man was closed. She further identified the white car she saw as being similar to the car pictured in State’s Exhibit 18, Virginia Garrett’s car, and identified appellant as looking similar to the man she observed in the parking lot behind her apartment on April 17, 1971.

Troy Thornburg testified that on April 24, 1971, while he and his family were fishing at a stock tank in Jack County, they found a body floating just under the surface. He then notified Sheriff Hubert Jackson. When Sheriff Jackson arrived on the scene, he observed a huge log across the end of the stock tank and between the body that was found on April 24, 1971, and the shore. He testified that the body was badly decomposed and that rocks had been tied to the neck and legs and the hands were tied behind the back. He found evidence of a car having been driven to within approximately one hundred yards east of the stock tank and stopped. The dark red spots were found on the ground near where the car had stopped; chemical analysis later proved this to be human blood. Also some jewelry and a St. Christopher medal belonging to the deceased woman were found. The following day Sheriff Jackson returned to the stock tank and saw a second body floating in approximately the same spot as the first body had been found. This body had two pieces of metal automobile frames attached to it, one piece attached to its hands that were tied behind its back and one piece attached to its legs that were tied with baling wire. The second body was identified as Edith Shores by fingerprints and by family identification. The stock tank was drained and it was observed that there were footprints all out in the stock tank which looked like a man’s footprints and there was mud up to a foot deep in the bottom of the tank. It had rained there approximately one week before the bodies of DeAnn Clon-inger and Edith Shores were found.

DeAnn Cloninger’s car had been found abandoned in a hospital parking lot in Weatherford. Hair and blood were found on the jack in the trunk. Additional soil analysis tests on the muddy footprint in her car and Garrett’s car proved to be from the same location.

David Brown and William Godwin, appellant’s half-brothers, testified that they had been drinking and playing pool at the Stardust Lounge the evening of April 16, 1971, with appellant, Ralph and Doris Brown and Charlotte Hamilton until 2:00 a. m. the 17th of April at which time they all went over to appellant’s apartment which was nearby. They testified that they all remained at appellant’s apartment until 3:30 or 4:00 a. m. and then went home.

Appellant argues that the overall testimony casts doubt on the credibility of the witness, Virginia Garrett. He put on witnesses to attempt to discredit her; the State called rebuttal witnesses. There are contradictions in the testimony. The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Article 36.13 and Article 38.04, V.A.C.C.P.; Hopkins v. State, 480 S.W.2d 212 (Tex.Cr.App.1972). The jury may believe some witnesses and refuse to believe others and it may accept portions of the testimony of a witness and reject other portions. Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974). The jury here obviously chose to believe the State’s testimony. Viewing the evidence in a light most favorable to its verdict, as we must, it is sufficient to support the jury verdict.

Appellant contends in his first ground of error that the trial court erred in not granting his “request for order of trial.” He argues that under Article 36.10, V.A.C.C.P., he and his co-indictees have an absolute right to request such order and have it granted where all d mdants are agreed when severance has ’ ¿en granted.

We have examined appellant’s motion as it appears in the record and find that while it is signed by the four indictees, it asks for no specific order of trial except that appellant’s wife, Charlotte Hamilton Lafoon, be tried first. Article 36.10, supra, was not followed. In view of this we find that there has been no agreed order of trials and thus no abuse of discretion by the trial court in denying said motion. See Harris v. State, 172 Tex.Cr.R. 150, 354 S.W.2d 155 (1962).

next, appellant contends that the trial court erred in failing to include in its charge to the jury an instruction concerning the law of accomplice testimony as applied to the witness Virginia Garrett. The court did not charge on accomplice testimony, either as a matter of law or as a question of fact for the jury. If all the evidence shows that the witness is answerable to the law as a principal or an accomplice to the crime or an accessory to the accused or if he has been indicted as such, then he is an accomplice witness as a matter of law. If there is a conflict in the evidence, then the question should be submitted to the jury. But, if there is not enough evidence to support a charge against the witness as either a principal, an accomplice or an accessory, then he is not an accomplice witness. Silba v. State, 161 Tex.Cr.R. 135, 275 S.W.2d 108 (1954). Garrett was not an accomplice and no such charge was required. Hendricks v. State, 508 S.W.2d 633 (Tex.Cr.App.1974).

We have reviewed all of the evidence and find that it is insufficient to support a charge of any type against Garrett. She gave the clothing that Doris Brown had asked her to throw away to the officers. In fact, the evidence overwhelmingly shows that Garrett was not an accessory as it is replete with times when she aided law enforcement officials in obtaining evidence. The court did not err in refusing to submit a charge on an accomplice witness as a matter of fact. See Easter v. State, 536 S.W.2d 223 (Tex.Cr.App.1976). Ground of error number two is overruled.

In ground of error number three appellant contends that the trial court erred in admitting the testimony of Texas Ranger Jesse Priest concerning statements made to him by Garrett’s daughter, Suzann Wren.

Initially, Suzann Wren was placed on the witness stand by appellant in order to impeach the credibility of her mother, Virginia Garrett. She testified that statements made to her by her mother were inconsistent with statements that she (Garrett) had made before the jury. During cross-examination of Wren, she admitted that she told Ranger Priest what statements Garrett had made to her concerning the defendants, but it does not appear that she unequivocally admitted that she had made prior inconsistent statements to Ranger Priest concerning her jury testimony. Thereafter, Priest was called to testify that the statements made by Wren before the jury were also inconsistent with those statements told to him. This testimony was properly admitted by the court. It is the rule that, where a prior inconsistent statement is made on a matter material to the case, the witness may be impeached by evidence of the inconsistent statement from other witnesses of the inconsistent statement. Thrash v. State, 500 S.W.2d 834 (Tex.Cr.App.1973). Wren’s testimony contains several inconsistencies within itself, but no positive admission that she had made certain other statements to Priest with perhaps one or two exceptions. Ground of error number three is overruled.

in grounds of error five, six, seven and eight, appellant complains of certain remarks made by the prosecutor during final argument at the guilt stage of the trial. We have reviewed grounds of error five, six and seven and find them to be without merit and they will not be discussed. Ground of error eight complains of the following statement by the prosecutor:

“There’s a lot of circumstances I would love to have you people know. I’ll guarantee you one thing, you return a guilty verdict in this case and then you go out and make a further investigation and you’ll be proud of yourself.”

The record reflects that before the argument of the prosecutor was made counsel for the defense made the following statements:

“Now, let me ask you this. If he (Sulli-vant) wants you to have all of the loose ends; if he really wants you to have all the circumstances, if he really wants you to have this other hypothesis which could reasonably and very likely account for the death of Edith Rogers, I challenge him to take four steps to his left and he’ll find them. Four steps from where he’s sitting to his left and he’ll—

and

“I say to you if you want to hear all of the loose ends _ I say to you if they’re going to ask you to _ to reach out of the _in the bottom of a basket and come up with a verdict of guilty against this man, you should have all of the story. —”

The court instructed the jury not to consider the argument complained of. No reversible error has been shown. Stronger argument than the one made in this case has been held not to be reversible where there has been an instruction not to consider it.

In Spaulding v. State, 505 S.W.2d 919 (Tex.Cr.App.1974), the prosecutor argued, “I wouldn’t be up here right now if I didn’t think this man was guilty, because . .” An objection that the prosecutor was expressing a personal opinion of guilt was sustained. The court instructed the jury not to consider the statement for any purpose. A motion for mistrial was overruled. In the Spaulding ease this Court wrote:

“. . . Thompson v. State, 480 S.W.2d 624, 630 (Tex.Cr.App.1972), laid down the following rules:
“ ‘The test as to whether an improper argument constitutes reversible error is whether, (1) the argument is manifestly improper, harmful and prejudicial, or (2) it is violative of a statute or, (3) it injects a new and harmful fact into the case.’
“These admittedly general rules are subject to certain well-recognized interpretations. One is articulated in Ramos v. State, 419 S.W.2d 359, 368 (Tex.Cr.App.1967):
“ ‘If the prosecutor’s remark can be interpreted as an expression of his personal opinion of the guilt of the appellant, then such argument would be improper. Where, however, an instruction to disregard is not refused, such conduct will not cause a reversal. 1 Branch’s Anno.P.C.2d, Sec. 385, p. 406.’
“Another guide to our consideration of such questions is to be found in Hodge v. State, 488 S.W.2d 779, 781-782 (Tex.Cr.App.1972), where the court said: ‘The question as to whether either of the statements of counsel necessitates a reversal of the judgment is to be resolved on the basis of the probable effect on the minds of the jurors and the facts of each case must be looked to.’
“Even if we concede the prosecutor’s statement of his personal opinion of guilt to be improper, the prompt action of the trial court, followed by an instruction to disregard such remarks, removed the harmful effect thereof. No reversible error is shown by such complaint. Ramos v. State, supra.”

The dissent does not care to consider or discuss the Spaulding case, the latest on the subject which cites other cases later than Bowers v. State, 171 Tex.Cr.R. 345, 350 S.W.2d 27 (1961).

Ground of error number eight is overruled.

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

ROBERTS, Judge

(dissenting).

This case should be reversed because of the improper argument of the prosecutor, which is brought forward as appellant’s eighth ground of error. The prosecutor argued:

“There’s a lot of circumstances I would love to have you people know. I’ll guarantee you one thing; you return a guilty verdict in this case and then you go out and make a further investigation, and you’ll be proud of yourself.”

Appellant’s objection was sustained, and the jury was instructed to disregard the argument. Appellant’s timely motion for mistrial was overruled.

The majority indicates that the argument was merely an expression of the prosecutor’s opinion that the appellant was guilty. This overbroad analysis entirely misses the obvious point of the prosecutor’s argument: to tell the jury in clear and explicit language that there were known facts not introduced in evidence which would bolster the prosecutor’s contention that the appellant was guilty.

The argument in this case is indistinguishable from the argument in Bowers v. State, 171 Tex.Cr.R. 345, 350 S.W.2d 27 (1961). There this Court reversed where the prosecutor argued:

“I am asking you to put him in the penitentiary . . . That’s what I’m asking you and I’ll stand with you on the verdict, and I want you to come to me and I’ll tell you after it’s all over that I’ll stand with you right down the line and you’ll have a different light on this matter.”

As in the present case, the objection in Bowers was sustained, and the judge instructed the jury to disregard the argument, but a motion for mistrial was denied. This Court held that the argument “was tantamount to telling the jury that if they would vote to convict appellant and then come to see the prosecutor he would tell them something which had not been introduced in evidence and further justify their finding of guilt.” Bowers, supra, 350 S.W.2d at 28.

The argument in this case is even more explicit than that in Bowers. Moreover, the rule applied in Bowers is one of longstanding and repeated application. See Smith v. State, 94 Tex.Cr.R. 427, 250 S.W. 1025 (1923), and Harrison v. State, 102 Tex.Cr.R. 385, 278 S.W. 430 (1925), both relied upon in Bowers, as well as Haggard v. State, 99 Tex.Cr.R. 354, 269 S.W. 438 (1925); Brister v. State, 97 Tex.Cr.R. 395, 262 S.W. 82 (1924); Puckett v. State, 168 Tex.Cr.R. 615, 330 S.W.2d 465, 81 A.L.R.2d 1237 (1959); and Stanchel v. State, 89 Tex.Cr.R. 358, 231 S.W. 120 (1921).

Finally, it should be observed that the maximum possible punishment was assessed. This makes the following language from Stanchel especially pertinent:

“It was perfectly legitimate for counsel to criticize the failure to produce available evidence, and deduce a conclusion that, if offered, it would not be favorable. But the district attorney in his zeal went further than this court can sanction. We understand that in the heat of debate attorneys for both the state and defendant are likely to violate the rules of argument; but here counsel passed from the domain of argument and conclusion and entered the realm in which a witness only is entitled to move. It was a damaging statement against appellant, and we cannot hold the same to have been harmless, in view of the penalty inflicted.” 89 Tex.Cr.R., at 361, 231 S.W., at 122.

The judgment should be reversed.

      . Charlotte Hamilton and appellant were married sometime after this offense occurred.


author:
ROBERTS, Judge.
      DOUGLAS, Judge

text:
    Ronald Edward MOTT, Appellant, v. The STATE of Texas, Appellee. Ezell Thomas ROADY, Appellant, v. The STATE of Texas, Appellee.
    Nos. 51915, 51916.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1976.
    Rehearings Denied Dec. 15, 1976.

      James A. Mattox and Vincent W. Perini, Dallas, for Mott.
    Charles W. Tessmer and Ronald L. Gor-anson, Dallas, for Roady.
    Henry Wade, Dist. Atty., Steve Wilensky, Jon Sparling, John Wm. Booth, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

These are appeals from convictions for aggravated assault. Appellants were tried jointly. The jury assessed each appellant’s punishment at seven years and one day confinement in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. Briefly, the State’s evidence shows that the complaining witness, Terry Snider, had words with the appellants in a nightclub in Dallas. As the result of mutual verbal provocation, appellant Mott struck Snider on the head with a beer mug or pitcher. Falling from the blow by appellant Mott, Snider was then struck on the face with a glass by appellant Roady. As a result of the latter blow, Snider’s nose, face and throat were cut. In being treated for his injuries, Snider received approximately 40 stitches to his face. He sustained permanent disfigurement to an eyelid and damage to his voice box.

Although different witnesses, both State’s and defense, gave different versions of the assault, the only point of disagreement concerned who struck the first blow, Mott or Roady.

Appellants initially contend that the trial court erred in denying them the right to examine the grand jury testimony of Snider. Specifically, appellants contend that there was some variation from the testimony Snider gave to the grand jury and the testimony he gave at the examining trial and upon direct examination at the trial on the merits. The grand jury testimony was sealed and brought forward in the record to this Court. We have examined such testimony. We cannot agree that the inconsistencies, if any, were such as to reflect error in the trial court’s action in refusing to make the grand jury testimony available for cross-examination. We fail to see how appellant was harmed. Brown v. State, 475 S.W.2d 938, 948 (Tex.Cr.App.1971). Furthermore,

“The production of the grand jury testimony, of course, lies within the sound discretion of the trial court and the accused may be permitted to inspect such testimony where ‘some special reason’ exists or where a ‘particularized need’ is shown so as to outweigh the traditional policy of grand jury secrecy.” (Citations). Id.

As in Brown, we cannot conclude that the appellant has shown a “particularized need” for the grand jury testimony so as to reflect that the trial court abused its discretion in refusing to order its production.

Appellants’ ground of error number one is overruled.

Appellant Mott contends that he was denied effective assistance of counsel as a result of the trial court’s refusal to allow him to inspect the grand jury testimony of Snider. Since we hold the trial court did not err in such refusal, it necessarily follows that this ground of error must also be overruled.

Both appellants contend that the trial court’s charge was fundamentally defective because it allowed a conviction for an offense different than the one charged in the indictment. The indictment, omitting the formal parts, alleges that each appellant “ . . did . then and there knowingly and intentionally cause serious bodily injury to another, namely; Terry L. Snider, by hitting him with a glass . .” (Emphasis added) The complained of portion of the court’s charge permitted the jury to find each appellant guilty if they found that they acted “ . intentionally or knowingly . . . .”. (Emphasis added).

We have held that such a charge is not fundamentally erroneous. Neither appellant objected to the court’s charge. Nothing is presented for review. Moreno v. State, 541 S.W.2d 170, 173 (Tex.Cr.App.1976).

Next, the appellants contend that the court’s charge was fundamentally erroneous because it contained an abstract instruction on the law of parties without applying the law to the facts. Neither appellant objected to the court’s charge in the manner provided for by Art. 36.14, V.A.C.C.P. Nothing is presented for review. Louden v. State, 491 S.W.2d 168, 169 (Tex.Cr.App.1973).

Both appellants contend that there is a fatal variance between the allegations in the indictment and the proof. The indictment alleges that each appellant caused bodily injury to Snider by “hitting” him with a glass. The proof shows Snider’s injuries occurred as a result of “cutting” with a glass. Since the proof does show that Snider was hit by each of the appellants and received cuts as a result thereof, these contentions are without merit and overruled.

Appellant Mott contends that the trial court erred in failing to grant him a new trial when a State’s witness recanted a material part of her testimony. Appellant argues this was favorable to him and the prosecution did not inform him of such fact.

The record reflects that Debbie Jackson testified that she was with the appellants on the occasion in question and that she did not see defense witness John Butler at that time. Butler testified that he had spoken to Jackson that evening. At the hearing on the motion for new trial, Jackson testified she remembered she had seen Butler and told one of the prosecutors about this. While the prosecutor should have informed appellants’ attorney about this, we do not feel that reversible error is present. Newly discovered testimony in the nature of impeachment will not, ordinarily, require a new trial. Tyson v. State, 142 Tex.Cr.R. 152, 151 S.W.2d 841, 842 (1941). No abuse of discretion has been shown. Williams v. State, 504 S.W.2d 477, 482 (Tex.Cr.App.1974).

Appellant Mott next contends that the trial court was in error when it refused to grant his motion for new trial on the grounds that the prosecution used improper tactics on a defense witness at the motion for new trial hearing. Mott contends such error amounted to a denial of due process.

Eight days prior to the scheduled hearing, the defense subpoenaed Debbie Jackson. Such subpoena called for her attendance at 2 p. m. on the day of the hearing. The prosecution, nevertheless, subpoenaed Debbie Jackson to appear at 9 a. m. that day. The State’s subpoena application shows it was filed subsequent to the defense application. The record reflects that an investigator for the prosecutor, not an attorney, made the application for the subpoena.

One of the prosecuting attorneys testified at the motion for new trial that he had instructed the investigator to “get them (defense witnesses) to the courthouse” so he could talk with them. He denied personal knowledge of the subpoenas but acknowledged he “may have” authorized the investigator to issue the subpoenas and that he “acquiesced in it.” He testified that he did interview Debbie Jackson before noon on the day of the hearing.

Debbie Jackson testified she came to the courthouse and interviewed with the prosecutor in the district attorney’s office at 9:30 that morning because “I had a subpoena to be in his office.” She further testified she was very upset at having been brought to the courthouse that morning and she admitting crying in the hallway prior to her testimony. She said that the investigator had told her over the telephone that she was to come in for the interview with the prosecutor, and that if she didn’t she would be subpoenaed.

Article 24.03, V.A.C.C.P., provides, inter alia:

“ . . the defendant or his attorney or the State’s attorney shall make written, sworn application to such clerk for each witness desired. . . . when a witness has once been served a subpoena, no further subpoena shall be issued for said witness.”

From the quoted portions of the above statute, it can be seen that the subpoena should not have been issued upon the application of one who is not either the defendant, his attorney, or the State’s attorney. Furthermore, it should not have been issued because the witness Jackson had already been served with a subpoena. However, reversible error is not present. On cross-examination at the motion for new trial, the following exchange took place between the prosecutor and the witness Jackson:

“Q Okay, did the subpoena that you got coerce your testimony any way?
“A No.”
Appellants’ ground of error is overruled.

Appellant Mott also contends that the prosecution intimidated defense witness Butler. Butler testified at the motion for new trial that prosecuting attorneys had passed him in the hall during a recess during the trial and one said, “Get that smile off your face, you son of a bitch,” and .another said, “I think we ought to put him in jail.” However, one of the prosecuting attorneys took the stand at the motion for new trial and specifically denied both of the statements. No other testimony of the occurrence was presented. The trial judge did not abuse his discretion in failing to grant a new trial upon this contention.

Finally, appellant Mott contends that the trial court erroneously refused him permission to inspect the prosecution files for exculpatory or mitigating evidence. Article 39.14, V.A.C.C.P., does not allow broad exploration of prosecution files where there is no showing that the matters sought to be discovered are material or that items sought are in possession of the prosecution and are being withheld. Smith v. State, 468 S.W.2d 828, 830 (Tex.Cr.App.1971). Furthermore, the trial court permitted the files to be sealed and made a part of the record. See, Hoffman v. State, 514 S.W.2d 248, 253 (Tex.Cr.App.1974). We have examined such files and find nothing therein beneficial to appellant Mott’s defense.

Appellant Roady, by supplemental brief, complains of ineffective assistance of counsel. Such counsel was retained. While it appears that Mott’s counsel did most of the questioning, we find sufficient participation “by the totality of the representation” to make a finding of ineffective assistance by Roady’s counsel unwarranted. Satillan v. State, 470 S.W.2d 677, 679 (Tex.Cr.App.1971).

The judgments of the trial court are affirmed.

DOUGLAS, Judge

(concurring).

One of the main contentions of Roady is that he had inadequate representation of counsel. To further show that there was no inadequate representation, some of the contentions will be discussed more fully.

Appellants argue that the charge as submitted to the jury allowed him to be convicted on the basis of a lesser culpable mental state than charged in the indictment and presents a lengthy dissertation on the definitions of culpable mental states as set out in V.T.C.A. Penal Code Section 6.03. They assert that “ . . . since the grand jury alleged both, the highest culpable mental state (intentional) must be proved by the state.”

In effect they argue that it is fundamental error to plead conjunctively and charge in the disjunctive. They recognize that under Articles 1183 and 1389, V.A.P.C., the rape and burglary statutes respectively under the former code, the indictment could allege the commission of the offense by force, threats and fraud, and proof of any would be sufficient and in so doing the State would not have to elect. Their attempt to distinguish those cases from the present case is novel. They contend that cases under those statutes dealt with the mode of commission of the offense, and in the case at bar it is culpable mental state which is in issue.

The convictions were under the provisions of V.T.C.A. Penal Code Section 22.01, which provides:

“A person commits an offense if he:
“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or . . . ”

V.T.C.A. Penal Code Section 22.02 provides:

“A person commits an offense if he commits assault as defined in Section 22.-01 of this code and he:
“(1) causes serious bodily injury to another; . . . ”

V.T.C.A. Penal Code Section 6.02 provides in part as follows:

“(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:
(1) intentional;
(2) knowing;
(3) reckless;
(4) criminal negligence.
“(e) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged.”

The proof that appellants knowingly did the act or acts is sufficient. If the indictment had alleged the culpable mental state of knowingly only then under Sec. 6.02(e), supra, proof that they acted intentionally would be sufficient. If the indictment had alleged intentionally only then the proof of knowingly would have been sufficient under Sec. 22.01. In other words, when the highest culpable mental state of intentionally is alleged, it includes knowingly, a lesser culpable mental state.

Under Article 1256, former penal code, an indictment for murder could allege different means of killing in the same count and the State was not required to elect on which means the alleged conviction would be sought and proof that death was caused by any or all of the means alleged was sufficient. 4 Branch’s P.C.2d, Section 2185, page 530. There is no logical difference between this and alleging and proving culpable mental states to the charge. No error would be shown even if there had been an objection.

Both contend that the trial court committed fundamental error in giving an abstract charge on the law of the parties without applying the law to the facts. No objections to the court’s charge, as required by Article 36.14, V.A.C.C.P., appear in the record. The same contention was raised and answered adversely to appellants in Louden v. State, 491 S.W.2d 168 (Tex.Cr.App.1973), where this Court wrote:

“We observe that under the facts a charge on principals was authorized as the evidence raised the participation of both the appellant and his son in the shooting of the deceased. Odell v. State, 95 Tex.Cr.R. 360, 254 S.W. 977. Further, no objection was made to the charge given by the court on principals on the ground that it failed to apply the law to the facts. In the absence of a request or exception, the failure to charge is not reviewable. Kemp v. State, 96 Tex.Cr.R. 152, 256 S.W. 264. Had an objection been made, such failure would not call for a reversal of the conviction as it would not be calculated to injure the rights of the appellant. Art. 36.19, V.A.C.C.P.; Lowe v. State, Tex.Cr.App., 377 S.W.2d 193.”

Another situation where an indictment alleged in the conjunctive and the charge could be submitted in the disjunctive was in a receiving or concealing stolen property case under the former code. An indictment that alleged receiving and concealing stolen property would warrant a conviction for either receiving or concealing. Cuilla v. State, 80 Tex.Cr.R. 41, 187 S.W. 210.

In Meek v. State, 71 Tex.Cr.R. 433, 160 S.W. 698, the court instructed the jury that it must find that Meek received and concealed stolen property. This Court held that requiring a finding of both receiving and concealing was error in favor of the defendant.


author: ODOM, Judge.

text:
    Jack Douglas TURNER, Appellant, v. The STATE of Texas, Appellee.
    No. 52040.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1976.
    Rehearing Denied Dec. 15, 1976.

      Brady S. Coleman, Austin, for appellant.
    Robert 0. Smith, Dist. Atty., Stephen H. Capelle, Asst. Dist. Atty., Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted for possessing a quantity of marihuana in excess of four ounces. He was assessed a ten year penalty and put on probation.

In ground of error number one, appellant asserts that the trial court erred in admitting the marihuana into evidence because the search warrant was invalid for lack of probable cause. It is urged that the warrant authorizing the search of the residence was invalid as to the appellant because the affiant did not know the appellant.

The record reflects that the Austin Police Department and the Federal Drug Enforcement Administration obtained a warrant authorizing the search of a residence located at 9801 Cameron Road in Austin.

The probable cause supporting this warrant consisted of transactions involving Buck Reynolds, Donald Shelton, and the residence at 9801 Cameron Road. The affi-ant was federal undercover agent R. L. Irwin.

Briefly, the affiant described Reynolds’ and Shelton’s departure from the residence on Cameron Road; their drive to a Ramada Inn; the delivery of methamphetamines by Reynolds to the agent; and the subsequent arrest of Reynolds and Shelton. Also, Reynolds’ return drive to the residence after a prior delivery was described, as well as other deliveries. The warrant ordered a search of the residence for controlled substances. The ensuing search culminated in the discovery of over six pounds of marihuana.

We conclude that the affidavit supplied probable cause to support the issuance of the warrant to search the residence on Cameron Road. It was not speculative to theorize that the source of the controlled substances delivered by Reynolds and Shelton to the undercover agent on several occasions was located at that residence. The connection between the delivery of the methamphetamines by Reynolds and the residence was established by the surveillance of the house conducted by the police. This surveillance was specifically detailed by the affiant in the affidavit. See Rangel v. State, Tex.Cr.App., 435 S.W.2d 143.

Further, the mere fact that the affi-ant did not know the appellant does not render the search warrant invalid. The warrant authorized the search of a house described as the premises of Reynolds and Shelton. The fact that affiant did not know that the appellant also resided there does not diminish the probable cause supporting the search warrant. The first ground of error is overruled.

Appellant, in his second ground of error, also contends that the search warrant is invalid because it failed to contain his name. In Guzman v. State, Tex.Cr.App., 461 S.W.2d 602, we stated that a search warrant is not invalid merely because the name of the defendant is omitted. The second ground of error is overruled.

In his next ground of error, appellant asserts that the trial court erred in overruling his motion for directed verdict. Appellant claims that the motion should have been sustained because there was no probable cause to arrest him.

The appellant, however, has made no complaint with regard to any search or seizure resulting from the arrest. The record also demonstrates that no evidence was obtained as a consequence of the arrest. These circumstances negate the validity of the third ground of error. Vasquez v. State, Tex.Cr.App., 532 S.W.2d 338; Maldonado v. State, Tex.Cr.App., 528 S.W.2d 234. It is, therefore, overruled.

In his final ground of error, appellant claims that the evidence is insufficient to prove he possessed over four ounces of marihuana. This argument is put forward by appellant because the quantity of marihuana found in his bedroom did not exceed four ounces.

The evidence shows that marihuana in a quantity greater than four ounces was found in the common areas of the home in which appellant had resided for over one year. Indeed, marihuana was discovered in the bathroom, in a glass bowl in the kitchen, and there were large marihuana plants growing in the kitchen and by the back porch. The plants growing by the back porch would be visible to anyone using the rear door of the house. It would be unreasonable to conclude that the appellant had never used the bathroom, kitchen or back door during the period he lived at the residence. This, coupled with the fact that marihuana was found in appellant’s bedroom, compels us to sustain the holding of the trial court.

The evidence was sufficient to link the appellant with the contraband and to demonstrate that he knew of its existence. Ochs v. State, Tex.Cr.App., 543 S.W.2d 355 (1976); 1 T.C.R. 709; Williams v. State, Tex.Cr.App., 524 S.W.2d 705. The fourth ground of error is overruled.

For the reasons stated, the judgment is affirmed.


author: DALLY, Commissioner.

text:
    Daniel RAMIREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 52181.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1976.
    Rehearing Denied Dec. 15, 1976.

      Kerry P. Fitzgerald, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Hagler, Robert Whaley and Danny Garrigan, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of robbery by firearms; the punishment is imprisonment for 99 years.

Appellant contends the court erred in excluding from evidence the written statement of Vincent Torrez. In the statement Torrez confessed that he and Adolfo Meza committed the offense with which the appellant was charged. The statement did not mention the appellant. Appellant argues that since the testimony showed that only two persons actually entered the jewelry store during the robbery, the statement should have been admitted.

The long established rule in Texas is that declarations of a third party admitting his guilt of the crime for which the accused is on trial are admissible only when the State is relying upon circumstantial evidence, when the guilt of such party is inconsistent with the guilt of the accused, and when the facts show that such party was so situated that he might have committed the crime. Cameron v. State, 153 Tex.Cr.R. 29, 217 S.W.2d 23 (1949); McCormick and Ray, Texas Laws of Evidence, Sections 1005 and 1006 (2d ed. 1956). See also Woodard v. State, 463 S.W.2d 197 (Tex.Cr.App.1971); Ballew v. State, 139 Tex.Cr.R. 636, 141 S.W.2d 654 (1940). Appellant recognizes this rule but urges us to reconsider the rule and allow the statement to be admitted. This we decline to do.

The Texas rule is a compromise between those cases which arbitrarily exclude declarations against penal interest and the decisions which treat such statements the same as declarations against pecuniary of proprietary interest. McCormick and Ray, Sec. 1006. While this rule has been criticized by several of the leading writers on evidence, we nevertheless believe the Texas rule is a sound and rational rule. While the trustworthiness of the declaration is in no way affected by the character of the State’s evidence, the requirement that the State’s case be wholly circumstantial goes to the need for the use of hearsay testimony. In addressing the exception to the hearsay rule of declarations against pecuniary interest, our Supreme Court said in Big Mack Trucking Co., Inc. v. Dickerson, 497 S.W.2d 283 (Tex.Sup.1973):

“. . . It has long been the position of Texas jurisprudence that there should be a special need to rely on such hearsay, and consequently we require proof that the declarant was not available to testify at the trial.”

Although we do not require proof that the declarant be unavailable to testify to statements against penal interest, we believe that the need to rely upon such hearsay is best served in those cases where the State’s evidence is wholly circumstantial.

That the guilt of the declarant be inconsistent with the guilt of the accused and that the facts show that the declarant was so situated that he might have committed the crime are requirements which tend to lend trustworthiness to otherwise inadmissible hearsay testimony. The requirement of trustworthiness is a common thread which connects all of the numerous exceptions to the hearsay rule. That the statement is a declaration against penal interest and could subject the declarant to criminal liability is alone not enough to satisfy the requirement of trustworthiness. Thus the Texas Courts have added the two additional requirements which tend to corroborate the declaration. As this Court noted in Stone v. State, 98 Tex.Cr.R. 364, 265 S.W. 900 (1924), “Allowing proof of innocence by the self-assumed blame of one beyond the reach of the law would soon disorganize criminal procedure.”

We feel that the requirement of additional corroborating circumstances is both rational and sound judicial policy. Therefore, we reaffirm our holdings that declarations of a third party admitting that he committed the offense for which the accused is on trial are admissible when the State is relying solely upon circumstantial evidence, when the guilt of the third party is inconsistent with the guilt of the accused, and when the facts show that such party was so situated that he might have committed the crime. Cameron v. State, supra, and cases cited therein. This case does not present a question dealing with the right of an accused to present witnesses on his own behalf.

Applying the rule to the case at bar, we first note that the State did not rely solely upon circumstantial evidence. The owner of the jewelry store positively identified the appellant as one of the persons who robbed him at gunpoint. Secondly, the guilt of Torrez is not inconsistent with the guilt of the appellant. While Torrez’s confession stated that he and Meza committed the robbery, other persons could have also committed the robbery as parties to the offense yet never actually enter the store. Therefore, we hold that the court did not err in excluding the statement of Torrez.

Appellant also contends it was error for the court to exclude evidence that Vincent Torrez and Adolfo Meza were convicted of the same offense with which appellant was charged. It is well established as a general rule that upon the trial of one charged with crime it is not permissible to show that another jointly or separately indicted for the same offense has been convicted or acquitted. Adams v. State, 531 S.W.2d 626 (Tex.Cr.App.1976), and cases cited therein.

Last, appellant complains of alleged improper jury argument. Appellant complains of the following argument by the prosecutor:

. . Think about this for a moment. If I gave any one of you an amount of money, even up to $30,000.00, you’d know what to do with it. Even if you knew it was stolen, you might know how to deal with it if you wanted it, if you were so inclined. If I gave you a television set and told you it was stolen, you might know how to get rid of it. If I gave you a car, you might even know that or could find out without too much trouble what to do with a stolen car. But $30,000.00 worth of diamonds and precious jewels? What would you do with them? Think about that. The man that plans that kind of a robbery, steals diamonds, is a man that’s engaged in big business, and I submit to you that it’s a reasonable deduction from the evidence that he’s got some connection some place. He knows somewhere—
“MR. MONTEMAYOR: Your Honor, I object to that as improper argument.
“THE COURT: Overrule your objection.”

The record reflects that in excess of $20,000.00 worth of property was stolen in the robbery. This property consisted of approximately four hundred complete and unfinished rings, ten or twelve watches, and approximately one thousand diamonds and precious stones, many of which were “no larger than a pinhead.” We hold that it was a reasonable deduction from the evidence to argue that appellant had “some connection some place” where he was going to sell the stolen property in order to profit from the crime he committed. Pecina v. State, 516 S.W.2d 401 (Tex.Cr.App.1974); Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973).

The judgment is affirmed.

Opinion approved by the Court.

      . McCormick’s Handbook of the Law of Evidence, Sec. 278 (2d ed. 1972); 5 Wigmore, Evidence, Sec. 1477 (Chadbourne rev. 1974).


author: DAVIS, Commissioner.

text:
    Joseph Mark WALKER, Appellant, v. The STATE of Texas, Appellee.
    No. 52617.
    Court of Criminal Appeals of Texas.
    Nov. 24, 1976.
    Rehearing Denied Dec. 15, 1976.

      Calvin A. Hartmann, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Ned B. Morris, Asst. Dist. Attys., Houston, 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 aggravated robbery. Punishment was assessed by the jury at ten years.

Helen Ortega, night manager of the Seven-Eleven store on Bauman Street in Houston, was coming out of the back room of the store on October 3, 1974, when she was “caught by surprise” by “two white males.” Ortega identified appellant as the one who “pulls out his gun and points at me” and “tells me to open the cash register.” Ortega, who was pregnant at the time, testified that she was in fear of death or serious bodily injury. After she opened the cash register, appellant “leans over and grabs the money.” Officer Wendt was on patrol in front of the store with his partner when he observed two men “standing excessively close and hunkered over the counter” and the proprietor of the store was standing with her hands in a “very unusual” position. The patrol car was turned around and Wendt saw appellant and the other man, identified as appellant’s brother Bruce, “run out of the store” and go in separate directions. As appellant was running, he threw a gun into the grass which was retrieved and found to contain no firing/pin or clip. Appellant reached a car on Soren Street and the car had started moving before the officer stopped it and appellant was arrested. Appellant was returned to the store, where he was identified by Ortega. A rifle was found in the car with “six live rounds in the magazine of it.”

Appellant contends that the court erred in denying him his constitutional right to representation by counsel.

Complaint is directed to the State calling appellant’s counsel to the stand to testify to the effect that the State’s offense report had been shown to counsel.

The State responds that appellant’s question to one of the officers relative to the offense report left the impression with the jury that appellant’s counsel had not seen the offense report and that the reason for calling counsel to the stand was to negate such impression.

The record merely reflects that there was a conference at the bench after appellant’s counsel was called to the stand by the State. The record reflects that the following occurred:

“The Court: ... I will permit the State to call you for one issue only which was discussed at the bench and that is relative to the offense report only and you may make any objections you like later on as you make your bill but you will take the stand.
“Mr. McCullouch [appellant’s counsel]: I take it the Court has overruled my objection to testify.”

On appeal, appellant urges that the State, by calling his counsel as a witness, denied him the constitutional right to representation by counsel and “was striking over the shoulders of his counsel in an endeavor to inflame the minds of the jury to appellant’s prejudice.”

The record fails to reflect that the complaints voiced on appeal were ever made in the trial court. In fact, the basis of appellant’s objection in the trial court, if any, does not appear in the record. For error to be preserved for appellate review, this Court has repeatedly held that the grounds of error in one’s appellate brief must comport to the objections made by counsel at trial. Sloan v. State, Tex.Cr.App., 515 S.W.2d 913; Campbell v. State, Tex.Cr.App., 492 S.W.2d 956; Gondek v. State, Tex.Cr.App., 491 S.W.2d 676; Rawlinson v. State, Tex.Cr.App., 487 S.W.2d 341.

Appellant contends that the court erred in failing to sustain his challenge of a prospective juror for cause.

Appellant recognizes the rule that, absent evidence that a defendant was forced to accept an objectionable juror or that he exhausted his peremptory challenges, he cannot be heard to complain of the court’s action in overruling his challenge for cause. Adami v. State, Tex.Cr.App., 524 S.W.2d 693; Williams v. State, Tex.Cr.App., 481 S.W.2d 119; Ward v. State, Tex.Cr.App., 505 S.W.2d 832. He concedes that no such showing is made in the instant case, but urges that the burden should not be on a defendant to show that he was forced to accept an objectionable juror or that he made any request for additional peremptory challenges where he has exhausted his peremptory challenges. Appellant cites no authority to support this position and we find none. No error is shown.

Appellant contends that the court erred in failing to grant his motion for new trial “because the trial court had abused its discretion in denying appellant’s motion for continuance.”

Appellant’s motion for continuance, filed during the course of the trial, was to secure a witness named Gonzales, who “has information which contradicts that of the State’s witnesses . . ..” No affidavit of the witness was attached to the motion for new trial, nor is there a showing under oath from any source that the witness would actually testify to the facts set out in the motion for new trial. Lapp v. State, Tex.Cr.App., 519 S.W.2d 443; Fields v. State, Tex.Cr.App., 495 S.W.2d 926; Harris v. State, Tex.Cr.App., 450 S.W.2d 629. No error is shown.

Appellant- contends that the evidence was insufficient to sustain the conviction “because the evidence was insufficient to prove appellant used a ‘deadly weapon.’ ”

Appellant points to the testimony of Officer Wendt that the gun thrown down by appellant as he left the scene of the robbery did not have a firing pin or clip when it was recovered, and urges that it was not a deadly weapon under V.T.C.A. Penal Code, Sec. 1.07.

V.T.C.A. Penal Code, Sec. 29.03, “Aggravated Robbery,” provides in pertinent part:

“(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:
(1) causes serious bodily injury to another; or
(2) uses or exhibits a deadly weapon.”

V.T.C.A. Penal Code, Sec. 1.07(a)(ll), defines deadly weapon:

“(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”

Appellant urges that our recent opinion of Mosley v. State, Tex.Cr.App., 144 S.W.2d 545 (1976), supports his contention. In Mosley, the defendant used an unloaded air pistol which was only capable of expelling a projectile about five feet which could not penetrate the skin, it was never pointed toward the face of the victim, and the defendant never used or threatened to use it as a bludgeon. After noting that the State’s expert witness testified that the air pistol was not a firearm, this Court concluded that the gun was not a deadly weapon. On the basis of the evidence, it was found that the weapon was not designed, made or adapted for the purpose of inflicting death or serious bodily injury and that the air pistol, as used, was not calculated to produce death or bodily injury.

Unlike the air gun in Mosley, we find that the forty-five automatic pistol used in the instant case was “manifestly designed, made ... for the purpose of inflicting death or serious bodily injury.” There is no evidence in the record to suggest a contrary view.

“Manifest” is defined in Black’s Law Dictionary, 4th Ed. (1968):

“Evident to the senses, especially to the sight, obvious to the understanding, evident to the mind, not obscure or hidden, and is synonymous with open, clear, visible, unmistakable, indubitable, indisputable, evident, and self-evident. London Guarantee & Accident Co. v. Coffeen, 96 Colo. 375, 42 P.2d 998, 1001.”

We find that the forty-five automatic, even though missing a firing pin and without a clip when found (following the robbery), was manifestly designed and made for the purpose of inflicting death or serious bodily injury and that this fact was evident to the senses and understanding of the victim. We conclude that the evidence was sufficient to prove that appellant used a “deadly weapon.”

Further, in Mosley, it was undisputed that the weapon was not a “firearm.” V.T.C.A. Penal Code, Sec. 46.01, provides in pertinent part:

“In this chapter:
* * * * * *
“(3) ‘Firearm’ means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. . .

While it appears that the definition of firearm is designed for Chapter 46, “Weapons,” in Title 10, “Offenses Against Public Health, Safety, and Morals,” we find that the definition furnishes guidance in determining whether the weapon in the instant case is a “firearm.” It should be borne in mind that the clip and firing pin were missing when the gun was recovered by the officer and that there is no testimony that the weapon was in such condition when the robbery occurred. However, assuming, ar-guendo, that the clip and pin were missing at the time of the robbery, we find the forty-five automatic pistol to be a “firearm.”

Appellant contends that the evidence was insufficient because the victim did not testify that the money was taken without her consent.

We conclude that the testimony of store manager Ortega that appellant pointed a gun toward her, told her to open the cash register, and that she opened same because she was in fear of death or serious bodily injury sufficiently proves that the money was taken without her consent. See Reese v. State, Tex.Cr.App., 531 S.W.2d 638.

The judgment is affirmed.

Opinion approved by the Court.

      . In Mosley it was shown that the air gun was spring activated rather than “adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. . . . ”


author: DALLY, Commissioner. ODOM, Judge

text:
    Willard James MITCHELL, Appellant, v. The STATE of Texas, Appellee.
    No. 51140.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1976.

      Sam A. Maida, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and James C. Brough, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of aggravated assault; the punishment is imprisonment for 4 years.

The appellant was charged with the offense of aggravated robbery. The allegations for enhancement of punishment were abandoned and the appellant entered a plea of guilty to the offense of aggravated assault.

We have reviewed this appeal in the interest of justice as required by Article 40.-09, Sec. 13, V.A.C.C.P., and reverse the judgment because the evidence does not support a conviction for an aggravated assault that is a lesser included offense of the offense charged.

Article 37.09, V.A.C.C.P. provides:

“An offense is a lesser included offense if:
“(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;”

The indictment in the instant case drawn under the provisions of V.T.C.A. Penal Code, Secs. 29.02(a)(2), and 29.03(a)(2), in pertinent part, alleges that the appellant:

“. . . did then and there unlawfully while in the course of committing theft of money, owned by Serafín Calo, hereafter styled the Complainant, and with intent to obtain and maintain control of the property intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a chain . .

The only aggravated assault that is a lesser included offense to the offense charged in the indictment is aggravated assault committed by intentionally and knowingly threatening Serafín Calo with imminent bodily injury by using a deadly weapon. See V.T.C.A. Penal Code, Secs. 22.01(a)(2), and 22.02(a)(3).

The only evidence offered to prove the included offense was the stipulation of the appellant that “I did intentionally and knowingly cause serious bodily injury to Serafín Calo.” This stipulation is evidence of an aggravated assault, V.T.C.A. Penal Code, Secs. 22.01(a)(1), and 22.02(a)(1); however, this stipulation is not evidence of an aggravated assault included within the offense charged in the indictment.

In order to sustain a conviction for aggravated assault as a lesser included offense to the robbery charged in this indictment, the stipulation should have been that “I did intentionally and knowingly threaten Serafín Calo with imminent bodily injury by using a deadly weapon.”

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

ODOM, Judge

(concurring).

I concur in the majority’s reasoning and disposition, but take this opportunity to express a second reason that dictates reversal.

It is well established that upon trial by jury, if the charge authorizes conviction under a theory not supported by the indictment, reversal will follow. E. g. Ross v. State, Tex.Cr.App., 487 S.W.2d 744; Dowden v. State, Tex.Cr.App., 537 S.W.2d 5. It follows that a conviction based solely upon a theory not supported by the indictment must fall. Such was the case here, as demonstrated by the facts set out in the majority opinion.

With these remarks, I join the majority.