author: TOM G. DAVIS, Judge. DOUGLAS, Judge.

text:
    Anita Sue WOOD, Appellant, v. The STATE of Texas, Appellee.
    No. 54938.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 22, 1978.
    Rehearing En Banc. Denied March 7, 1979.
    Jack W. Frieze, Irving, for appellant.
    Henry M. Wade, Dist. Atty., John Tatum, Andy Anderson, and Mike Gillett, Asst. Dist. Attys., Dallas, for the State.

      Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for making a false report to a police officer. V.T.C.A. Penal Code, Sec. 37.08. Trial was to the court. Punishment was assessed at 180 days, probated, and a fine of $200.

Appellant contends that the evidence is insufficient to support the conviction and challenges the statute upon which the conviction is based on various constitutional grounds. The challenge to the sufficiency of the evidence necessarily requires a detailed review of the evidence.

On August 15, 1975, the appellant, Anita Sue Wood, made a complaint to the Irving Police Department accusing Officer George Wolf of being intoxicated while on duty. The complaint, originally made to Captain Lowe, was referred to Lieutenant Glen Mariner who immediately investigated by contacting Officer Wolf. He determined that Wolf had not been drinking nor showed any signs of intoxication. The appellant, when confronted with Mariner’s findings and told that no further action would be taken without a written statement, made the statement set out below.

“VOLUNTARY STATEMENT. Not under Arrest.
City of Irving Police Department
Before me, the undersigned authority, on this the 15th day of AUGUST A.D. 1975 personally appeared ANITA SUE WOOD, W/F/23, Address 810 Cherrywood Ct Irving, Texas Age 23, Phone No. 254-8550.
Deposes and says: About 4:20 PM on Friday, 8/15/75,1 parked outside the Irving Bank & Trust on Main Street.
I was parked next to a fire zone. I was in the bank for about 5 minutes and when I came out, the officer was writing a ticker [sic] for my car. I asked him if this was a ticket for my car and he said yes. I was standing there talking to the officer and I could smell liquor on his breath. I was about five (5) feet from him and could smell it strongly. I was upset when I left but I told him that I did not intend to pay the ticket. He just looked at me and I went on and left. Later I contacted Captain Lowe of the Irving Police Department and told him what had happened and that Officer Bill Wolf had been drinking and was in uniform and was intoxicated. Later I was contacted by Lieutenant Mariner on the phone, where I told him what had happened. I came to the Irving Police station, where I freeely [sic] gave the above information to Lieutenant Mariner. This statement is true and correct to the best of my knowledge.
/a/ Anita Wood
witt: /s/ Rachel Castro 8/15/75
Subscribed and sworn to before me on this the 15th day of August A.D. 1975
[Seal on original] /s/ G. B. Mariner _
Notary Public, Dallas County, Texas”

The appellant’s testimony mirrored the facts set out in her statement. Her testimony also showed that her assessment of Wolf’s intoxication was based solely on the smell of alcohol on his breath, not on any physical signs of intoxication.

Officer Wolf’s account of the transaction regarding the traffic citation confirmed the appellant’s testimony in all but two areas. Wolf stated that the appellant was parked in a fire lane and denied the allegation that he had been drinking that afternoon. Wolf added that at the end of this 4 or 5 minute exchange, the appellant called him a bastard. Wood’s testimony also reflected that the insult had occurred.

In support of Wolf’s testimony, Mariner and four other witnesses testified that Wolf had not been drinking. Each of these witnesses had observed Wolf on the afternoon in question, and each maintained that Wolf exhibited no signs of intoxication.

On cross-examination, Wolf recalled that he had applied after-shave lotion about an hour before the exchange, and that he had smoked cigarettes earlier in the day. The evidence reflected that there was a restaurant near the scene of the encounter and that exhaust fumes from heavy traffic were present.

On cross-examination of the appellant, the State established that her brothers “had a lot of contact with,” “had been handled by,” and “were no strangers to” the Irving Police Department. The appellant denied, however, that she harbored any ill feelings toward the Irving Police Department.

We find the evidence insufficient to support a conviction, thus it is unnecessary to reach appellant’s claim that the statute is unconstitutional. In considering the sufficiency of the evidence, we are, however, confronted with questions of constitutional dimension.

The appellant urges that her conviction was in violation of Article I, Sec. 8, and Article I, Sec. 27, of the Texas Constitution and the First Amendment of the United States Constitution. Appellant contends that any act seeking redress or involving free speech would be privileged from prosecution. As set out in this opinion, all such acts are not privileged, but instead must depend on the surrounding circumstances to bring them within the privilege. The conduct prohibited by Y.T. C.A. Penal Code, Section 37.08(a)(1), and the freedoms guaranteed by these constitutional provisions must be reconciled.

Article I, Sec. 27, of the Texas Constitution provides that:

“RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.”

Applying this provision in a civil libel case, the Court in Connellee v. Blanton, 163 S.W. 404, 406 (Tex.Civ.App., Ft. Worth, 1913, no writ), held that “[e]very communication is privileged which is made in good faith with a view to obtain redress for some injury received or to prevent some public abuse.” The appellant’s actions were an attempt to obtain redress for what she arguably perceived as official misconduct, thus the State must prove that her allegations were in bad faith and for reasons other than to obtain action on a valid grievance.

The appellant was convicted under V.T.C.A. Penal Code, Sec. 37.08(a)(1), which provides that:

“(a) A person commits an offense if he: “(1) reports to a peace officer an offense or incident within the officer’s concern, knowing that the offense or incident did not occur;

The culpable mental state required by this statute, knowing, is defined in V.T.C.A. Penal Code, Sec. 6.03(b), as:

“(b) A person acts knowingly, or with knowledge with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.”

Thus, the mental state requisite to convict under Sec. 37.08(a)(1) would normally require a showing that the defendant was aware that the circumstances surrounding her conduct existed. In most cases, the State relies on circumstantial evidence to prove the required culpable mental state. Thus, the culpable mental state required by statute could be shown by an inference arising from the proof of the actual state of the facts coupled with the defendant’s opportunity to perceive them.

A greater showing is necessary to prove the bad faith required in this case. Under Connellee v. Blanton, supra, the State must go further and prove that appellant’s representations were in bad faith and for reasons other than to obtain action on a valid grievance. The State must introduce evidence showing that the appellant did actually perceive the facts as they existed in addition to evidence proving the state of the facts and showing her opportunity to perceive them. Viewing the evidence in the light most favorable to the conviction, the evidence shows that Wolf was not intoxicated and that appellant had ample opportunity to perceive this. The State’s evidence that appellant knew that Wolf was not intoxicated is, however, insufficient.

The State seeks to show the appellant’s actual knowledge by evidence of both a motive to fabricate her allegations and the narrow factual basis for her claim. This evidence is too meager to support such an inference of actual knowledge.

To find a motive from her brothers’ involvements with the Irving police would require more evidence that she harbored resentment for the police department’s actions. Her reaction to being issued a citation is equivocal, insofar as it cannot be used to show that she had ill feelings toward the department because of her brothers’ involvements. Her resentment at being given the ticket alone could have supplied the motivation for her actions during the incident. However, it does not follow that a motive to falsity would stem from one such incident. Thus this evidence is insufficient to infer she actually knew the officer was not intoxicated and that she acted in bad faith.

Her conclusion that the officer was intoxicated based solely on the odor of alcohol on his breath does not give rise to the inference that she knew that he was not intoxicated.

The evidence of her motive or narrow factual basis for her conclusion infers no more than a suspicion. In no way has every other reasonable hypothesis been excluded. We conclude that the circumstantial evidence in this case is insufficient to support the conviction.

Having found that reversal must result, as the evidence is insufficient, the Supreme Court’s decisions in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (June 14, 1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (June 14, 1978), dictate that no further prosecution be had in this case.

The judgment is reversed and reformed to show acquittal.

Before the Court en banc.

DISSENTING OPINION ON STATE’S MOTION FOR LEAVE TO FILE MOTION FOR REHEARING

DOUGLAS, Judge.

The majority overrules the State’s motion for leave to file motion for rehearing without written opinion. On original submission a panel of this Court held that in order to secure a conviction for making a false report to a police officer the State must prove that the defendant acted in “bad faith.” The panel further held that the State’s proof of “bad faith” was circumstantial, that the proof did not negate every reasonable hypothesis except guilt and, therefore, the evidence was insufficient and a judgment of acquittal was necessary. The panel was incorrect in adding an additional element to the statute. It substituted an old Court of Civil Appeals opinion in a libel case based on common law as a constitutional provision. The Legislature is not bound to follow the decision based on common law of a libel case in enacting a statute making it an offense to make a false report to an officer knowing that the offense or event did not occur.

The panel ignored a long line of cases when it reviewed the evidence of “bad faith” under our rules governing circumstantial evidence and the panel ignored facts in concluding the evidence was insufficient even under the improper standard it applied.

Section 37.08 of the Penal Code defines the offense of False Report to Peace Officer. The statutory elements of the offense are:

1. A person;
2. Makes a report;
3. To a peace officer;
4. Of or relating to an offense or incident within the officer’s concern;
5. Knowing the offense or incident did not occur.

The panel, in a case where the subject of the false report is a police officer, adds the additional element of:

6. In bad faith.

It is the function of the Legislature to pass laws; it is the judiciary’s function to interpret them. This Court should not seek to usurp the powers of the Legislature. Given the separation of our government into three branches, the need for an explanation is necessary when the judiciary modifies a legislative act. The panel opinion in the instant case fails to present a proper explanation.

The panel opinion quotes from our Constitution that citizens shall have the right to apply to those invested with powers of government for redress of grievances or other purposes. It substitutes a citation to Connellee v. Blanton, 163 S.W. 404 (Tex.Civ. App., Ft. Worth, 1913, no writ), for any meaningful analysis.

C. U. Connellee appealed from a judgment in a libel suit. He prepared an application to Governor O. B. Colquitt requesting a pardon for George Parvin who had been convicted of aggravated assault. In the application, Connellee charged that Judge Thomas Blanton, who presided at Parvin’s trial, had “changed the venue of the case for the purpose of making cost excessive.” Blanton’s suit charged this statement was libelous and obtained a judgment of $3,000. The trial judge also concluded Connellee wrote the statement “with actual malice.” The Connellee opinion begins with a recitation of the facts. It then disposes of an unrelated contention. Finally, it deals with Connellee’s argument that his general demurrer was improperly overruled because statements in an application for a pardon are subject to an absolute privilege. While discussing the difference between an absolute and qualified privilege, the court quotes from Defamation, Slander and Libel, a book by “Mr. Newell.” The quotation includes the following:

“Every communication is privileged which is made in good faith with a view to obtain redress for some injury received or to prevent or punish some abuse.”

The Connellee court then discussed Texas precedent and the relevant constitutional provisions and rejected “Mr. Newell’s” concept of a qualified privilege. The Connellee court held: u[T]he application made by appellant to the Governor, who was, by the Constitution, vested with authority to grant a pardon to George Parvin, was absolutely privileged.” This holding of absolute privilege was essential to the case because if the privilege was only qualified, the trial court’s finding of “actual malice" would have defeated Connellee’s contention.

Thus, the panel judicially amended a statute without explaining its rationale. In the place of a thorough explanation and analysis, they substituted conclusory statements and citation to a 65-year-old, intermediate appellate court decision. The panel misconstrued the opinion of the Court of Civil Appeals.

The writer is of the opinion that the evidence is sufficient to support the conviction even with the element of the offense added by the panel. Normally, when we review the sufficiency of the evidence, we look at that evidence in the light most favorable to the verdict and determine if an appellant was guilty beyond a reasonable doubt. In a circumstantial case we review the evidence, again in the light most favorable to the verdict, and determine if that evidence, in addition to proving guilt beyond a reasonable doubt, negates every reasonable hypothesis except guilt. This second standard is considered more exacting.

The panel opinion reviewed the evidence of “bad faith” under this more exacting circumstantial evidence standard. This is contrary to established precedent. In Williams v. State, 567 S.W.2d 507 (Tex.Cr.App. 1978), we stated the applicable rule:

“It is well established that an instruction as to circumstantial evidence is not required where the main fact is proved by direct testimony and only the question of the defendant’s intent is to be inferred from the circumstances. Littleton v. State, Tex.Cr.App., 419 S.W.2d 355; Helms v. State, Tex.Cr.App., 493 S.W.2d 227; Chappell v. State, Tex.Cr.App. 519 S.W.2d 453; Ross v. State, Tex.Cr.App., 504 S.W.2d 862.”

In the instant case, the statutory or the first four elements of the offense were established by appellant’s written complaint and the testimony of officers who had personal knowledge of either appellant’s complaint or Officer Wolf’s lack of intoxication. These were facts proved by direct evidence. Appellant’s state of mind with respect to the culpable mental state of intentionally and knowingly as alleged in the indictment was proved and the element of “bad faith” was proved by inferences which could be drawn from these objective facts. In nearly every case, state of mind is proved by such inferences. Yet, this Court has never applied the law of circumstantial evidence to such a case. Where intent is the only thing that is not proved by direct evidence, the case is not a circumstantial evidence case and no such charge is required. Smith v. State, 470 S.W.2d 696 (Tex.Cr.App.1971); Barber v. State, 462 S.W.2d 33 (Tex.Cr.App. 1971).

Finally, this writer disagrees with the panel’s conclusion that the evidence to prove their judicially enacted “bad faith” element does not exclude every reasonable hypothesis except guilt. The panel decision acknowledges that the evidence “shows that Wolf was not intoxicated and that appellant had ample opportunity to perceive this.” The panel apparently would require direct evidence of malicious motive. Her false report and her brothers’ involvement with the Irving police do not satisfy the panel nor does the fact that she was issued a traffic ticket, to which the panel contends her reaction was “equivocal,” prove sufficient proof of motive.

The record indicates the profane response of appellant when she was issued the parking ticket. Officer Wolf described the incident as follows:

“A. After I had asked her for her name, address, telephone number and date of birth, I gave her the pink copy of the citation. She walked to her car, and as she sat down in her car she called me a bastard.
“Q. Okay, what happened then?
“A. I walked over to her car and I said, Ma’am, I said, I’m not a bastard.
“Q. And then what happened?
“A. She stepped on the gas, her car lurched forward and the right front wheel went up over the curb.
“Q. Then what happened?
“A. She said something and I said, Ma’am. She backed up and said something else and I said, Ma’am. I don’t know what she said, I couldn’t hear her. And then she drove off.”

Reacting to a ticket by calling an officer a bastard and her conduct at the time is some evidence of motive.

Appellant’s brothers had been involved with the Irving police. Appellant overreacted to the issuance of a parking ticket and she intentionally and knowingly made a patently false report of intoxication to Wolf’s supervisors. Even under the panel’s erroneous legal analysis, this writer can perceive of no reasonable probability to explain the making of the false report other than that of the appellant’s actual malice or “bad faith” toward Wolf. The evidence was sufficient.

The motion for rehearing should be granted and the judgment should be affirmed.

W. C. DAVIS, J., joins in this dissent.

      . Appellant’s contention that her right to free speech was violated is founded on both Tex. Const. Art. I, Sec. 8,
      “FREEDOM OF SPEECH AND PRESS; LIBEL. Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.”
      and U.S.Const. Amend. I:
      “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
      The rights guaranteed by these provisions are delineated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). In Sullivan, supra, the Supreme Court held that liability for criticism of a public official could be imposed only for a false statement made with malice. The Supreme Court later made the holding in Sullivan applicable to criminal prosecutions as well. Garrison v. Louisiana, 379 U.S. 64, 67, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). It is not necessary for the Court to reach this contention, however, as Tex.Const. Art. I, Sec. 27, is dispositive on the constitutional issues.

      . This Court holds only that the evidence was insufficient and does not pass on the constitutionality of the statute. Nor does this Court hold that every prosecution under this statute must meet the standard of proof set out above. In Norton v. State, 564 S.W.2d 714 (Tex.Cr. App.1978), this Court was presented with an appeal from a conviction under Sec. 37.08, supra. The facts showed that the defendant had procured marihuana, secreted it in his ex-wife’s car, and then informed the police that his ex-wife was selling narcotics out of her car. He raised no constitutional claims, nor did the facts indicate any were present. The defendant’s actions in Norton, in contrast to the appellant’s actions in the present case, did not entitle the defendant to the constitutional protection present in this case.


source: Caselaw Access Project

author: W. C. DAVIS, Judge.

license: Public Domain

text:
    Bruce P. JOHN, Appellant, v. The STATE of Texas, Appellee.
    No. 55263.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 28, 1979.

      J. Andrew Rollins, Arlington, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins and Ronald G. Knight, Asst. Dist. Attys., Fort Worth, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a misdemeanor conviction for the illegal sale of tickets, pursuant to Arlington City Ordinance No. 76-35. Appellant entered a plea of guilty to the offense in Municipal Court, and brought an appeal in Tarrant County Criminal Court No. Three, wherein he received a trial de novo. Appellant was found guilty by the court and a fine was assessed at one hundred and twenty-five dollars.

Arlington City Code, 1956, Miscellaneous Chapter, Ordinance No. 76-35, provides:

“Section 1.10 Regulation of Sales on the Grounds of City of Arlington Municipally Owned Property:
“It shall be unlawful for any person to sell or offer to sell any goods or services on the grounds of City of Arlington Municipally Owned Property with the exception of (a) parks (as limited by the Parks Chapter), (b) sidewalks, streets or public thoroughfares not located within the boundaries of City of Arlington Municipally Owned Property (as limited by the Streets Chapter and State Law), and (c) persons and their agents who have contracted for services with the City of Arlington for sales on the grounds of City of Arlington Municipally Owned Property.”

On appeal, appellant attacks the constitutionality of the ordinance. In his first ground of error, he contends that the ordinance is unconstitutional as an “improper exercise of the Police Power of a Home Rule City in the State of Texas delegated to municipalities” by operation of the Home Rule Amendment to the Texas Constitution, Article XI, Section 5.

A city’s police powers extend to the reasonable protection of the public health, safety and welfare. Texas Power and Light Co. v. City of Garland, 431 S.W.2d 511 (Tex.1968). Pursuant to its police power, a city is authorized to enact ordinances tending to promote the general welfare, health, or safety of the public in the use of public facilities. See Hixon v. State, 523 S.W.2d 711 (Tex.Cr.App.1975). The legislative body of a home rule city is vested with broad discretion in deciding questions properly within the scope of a city’s police power. Briggs v. City of Denison, 420 S.W.2d 446 (Tex.Civ.App.1967). However, the municipalities may only impose restrictions which have a reasonable basis and which reasonably promote the public safety or welfare. Humble Oil & Refining Co. v. City of Georgetown, 428 S.W.2d 405 (Tex.Civ.App.1968); Driggs v. City of Denison, supra.

It is the province of the governing body of a municipality to determine in the first instance the necessity and reasonableness of such an ordinance. City of Abilene v. Woodlock, 282 S.W.2d 736 (Tex.Civ.App. 1955).

An exercise of the legislative power of a municipality is presumed to be valid; the burden of showing that such an ordinance is unreasonable rests on the party who attacks it. Utter v. State, 571 S.W.2d 934 (Tex.Cr.App.1978); City of Abilene v. Woodlock, supra; City of Waxahachie v. Watkins, 154 Tex. 206, 275 S.W.2d 477 (1955).

Upon review, our courts will not strike down such ordinances unless they clearly appear to be arbitrary, unreasonable and an abuse of power. The issue is one of governmental or legislative discretion and the courts will not substitute their discretion for that of the governing bodies of the cities, City of Abilene v. Woodlock, supra, if reasonable minds may differ as to whether or not a particular ordinance has a substantial relationship to the public health, safety and welfare, no clear abuse of discretion is shown. City of Waxahachie v. Watkins, supra; City of Abilene v. Woodlock, supra.

In the instant case, the record reflects that the city ordinance prohibited the sale of goods or services upon property owned by the city, with three exceptions. Appellant was a “ticket broker” who resold tickets to baseball games. Upon the date of his arrest, he was selling tickets outside Arlington Stadium, owned by the City of Arlington. Evidence adduced at trial showed that a purpose of this ordinance was to minimize disruptions in the flow of pedestrian traffic outside the stadium. From twenty to twenty-five thousand people were usually expected to be at the stadium during events there; when goods were sold outside the stadium, this could disrupt the movement of people in and out of the stadium.

We hold that the City of Arlington has a legitimate interest in the regulation of the pedestrian traffic flow upon city-owned property. A permissible way for the city to regulate such traffic is to regulate the disruptions to pedestrians outside city facilities. Appellant has not met his burden of showing that this ordinance is unreasonable. Upon the facts presented here, we cannot say that the city’s exercise of its police power in regulating the conduct of businesses on city property is unreasonable, arbitrary or constitutes an abuse of discretion. This ground of error is overruled.

In his second ground of error, appellant contends that the city ordinance is unconstitutional as being violative of equal protection. Specifically, he attacks subsection (c) of the ordinance which creates an exception to the general prohibition for persons who enter into a contract with the city to engage in sales on the premises. Appellant contends that this sets up an improper basis for discrimination, and that this classification is arbitrary, and unreasonable. We do not agree.

A legislative body has a right to make a classification or create a class for the purpose of serving legitimate aims if the limits of the class are not unreasonable or arbitrary. Hixon v. State, 523 S.W.2d 711 (Tex.Cr.App.1975); B & B Vending Co. v. City of El Paso, 408 S.W.2d 545 (Tex.Civ. App.1966); Ex parte George, 152 Tex.Cr.R. 465, 215 S.W.2d 170 (1948).

We cannot say that the provision requiring prospective vendors to contract with the city is unreasonable, or arbitrary. The evidence adduced at trial showed that one purpose of the provision was to enable the city to regulate the number of vendors in places where large crowds were expected. Further, the evidence showed that another function of the ordinance, as applied in the instant case, was to require vendors to participate in the clean-up of the area and to share the costs of the upkeep of the premises. Thus, we hold that this provision of the ordinance is not unreasonable or arbitrary, and that the classification created thereby is not violative of equal protection. See also, New Orleans v. Dukes, 472 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Hixon v. State, supra. This ground of error is overruled.

The judgment is affirmed.

      . We note that the record reflects that appellant never attempted to contract with the city, to thus bring himself within such exception.


author: DOUGLAS, Judge. ROBERTS, Judge,

text:
    Robert Lee COLEMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 55906.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 28, 1979.

      J. R. Musslewhite, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and Alvin M. Titus and R. P. Cornelius, Asst. Dist. Attys., Houston, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DOUGLAS, Judge.

The conviction is for aggravated robbery. Two prior convictions were alleged for enhancement. Punishment was assessed at life.

Since the dissenting opinion states that this Court does not have jurisdiction, that question will be discussed first. The judgment is dated July 14, 1976, and the sentence dated July 23, 1976. There is no waiver of the ten-day period to file a motion for new trial provided for in Article 40.05, V.A.C.C.P. Appellant does not contend that he was not ready to be sentenced or that he was denied the right to file a motion for new trial. He does not contend that he would have filed a motion for new trial if the trial judge had waited another day before pronouncing sentence.

In the recent case of Parr v. State, 575 S.W.2d 522 (Tex.Cr.App.1979), the defendant acquiesced to a premature sentence. He did not raise it until his motion for rehearing was filed. This Court held that because of Parr’s decision not to raise the issue until after our original opinion was handed down, and the fact that the defect renders the sentence voidable not void, the issue should not be considered in the interest of justice under Article 40.09, V.A.C. C.P.

In the present case there is no contention that appellant was sentenced prematurely. We will not consider the matter on the court’s own motion in the interest of justice.

In his brief, Coleman contends that the money taken in the robbery and discovered in his car was found as a result of an illegal search and seizure, that hearsay was improperly admitted and that there were improper enhancement allegations. The sufficiency of the evidence is not challenged.

During the afternoon of August 24, 1975, appellant and another individual entered the Super Duper convenience store in Houston. They pulled a gun on Harold Hobart and demanded the money from the cash register. They then ordered Hobart to the ground. Hobart heard the tires of a car screech as the robbers left. He immediately called the police.

D. A. Smith, a Houston police officer, was on routine patrol on the afternoon of August 24, 1975. He observed a car speed away from the Super Duper and gave chase to make a traffic stop. After pursuing the vehicle for several blocks, he stopped it and both occupants were ordered out of the car. Smith observed a pistol in the front seat area and then heard a radio broadcast of the robbery. He and other officers took the two suspects back to the Super Duper where they were identified by Hobart. They then searched the car and found a bag full of money.

The State presented its case through eyewitness testimony and physical evidence. There was also a film, made by a hidden camera, of the entire robbery. It was run and a narration of the events was made before the jury.

Coleman challenges the admission into evidence of the testimony concerning the money bag. He argues that the search was not incident to the arrest.

In Taylor v. State, 421 S.W.2d 403 (Tex. Cr.App.1967), we made the following explanation of the law:

“Once a bona fide stop or arrest has been made for a traffic offense, the police can make additional arrest for any other offense unexpectedly discovered during the course of the investigation. If, while questioning a motorist regarding the operation of [the] vehicle, an officer sees evidence of a criminal violation in open view, or in some other manner acquires probable cause on a more serious charge he may arrest for that offense and incident thereto1 conduct an additional search for physical evidence.” (Emphasis in the original).

We have followed Taylor in several recent cases. Duncantell v. State, 563 S.W.2d 252 (Tex.Cr.App.1978); Parker v. State, 576 S.W.2d 613 (1979).

The traffic stop of appellant was valid. A gun was discovered in plain view and information of a recent burglary at a store that appellant had sped away from was obtained. Appellant was taken to the store and identified. At this point, the officers had probable cause to arrest appellant for the robbery and under Taylor could then conduct an additional search for physical evidence. We hold that the search was proper.

Complaint is next made that an envelope containing physical evidence had certain hearsay notations on it. The envelope containing the bullets taken from the pistol used in the robbery contained appellant’s name, “robbery deadly weapon pistol”, “Super Duper Drive In”, a description of the exhibit and certain bookkeeping notations.

An exhibit which contains extraneous hearsay notations that constitute a concise summary of the State’s case should not be admitted. Battee v. State, 543 S.W.2d 91 (Tex.Cr.App.1976); Coulter v. State, 494 S.W.2d 876 (Tex.Cr.App.1973). In both Battee and Coulter, the complained of notations were in considerably greater detail than in the instant case. They named the defendants as the ones committing the offense. While the instant notations were not in as great a detail, they did tend to summarize the facts, they were hearsay and they were the subject of a timely and proper objection. They did not name appellant as the guilty party. The evidence in this case includes an eyewitness identification, the finding of all relevant physical evidence in appellant’s possession, flight and a movie of the appellant in the robbery. There are few cases where the evidence of guilt could be stronger. We hold that the admission of the envelope and the notations was not reversible error. See Wilkes v. State, 566 S.W.2d 299 (Tex.Cr.App.1978).

Appellant next challenges the sufficiency of the enhancement allegation of the indictment. He contends that the enhancement paragraphs are void because they do not allege that he was convicted in a court, in a district court, or in which district court. Coleman argues that the allegation fails to give him sufficient notice. This complaint is raised for the first time on appeal.

The purpose of an enhancement allegation is to provide the accused with notice of the prior conviction relied upon by the State. Bevins v. State, 422 S.W.2d 180 (Tex.Cr.App.1967). The enhancement allegation need not have the specificity required of the primary count. Cooper v. State, 500 S.W.2d 837 (Tex.Cr.App.1973).

The instant indictment described the prior convictions by date, cause number, county, state, and offense. No motion to quash was filed. We conclude that Coleman had sufficient notice of the prior convictions. See Prodan v. State, 574 S.W.2d 100 (Tex.Cr.App.1978); Arce v. State, 552 S.W.2d 163 (Tex.Cr.App.1977); Teamer v. State, 557 S.W.2d 110 (Tex.Cr.App.1977), and Hollins v. State, 571 S.W.2d 873 (Tex. Cr.App.1978).

Appellant has also filed two pro se briefs urging additional grounds of error. We have examined these and find them to be without merit.

There is no reversible error. The judgment is affirmed.

ROBERTS, Judge,

dissenting.

I dissent to the majority’s holding that we have jurisdiction to entertain the present appeal.

The majority cites the recent decision of Parr v. State, Tex.Cr.App., 575 S.W.2d 522, 1979 (Douglas, J.), as authority for its holding that appellant’s acquiescence to premature sentencing in the present case precludes us from considering this matter on direct appeal. In Parr, supra, it was held that the defendant was not entitled to complain on motion for rehearing of the premature pronouncement of sentence in violation of Article 42.03(1), Vernon’s Ann.C.C.P.

Although this writer questions the soundness of Parr, supra, in light of our past decisions, the present case is yet distinguishable because, unlike Parr, appellant’s premature sentencing was called to this Court’s attention while his appeal was pending on original submission. In Ex parte Shields, 550 S.W.2d 670 (Tex.Cr.App.1976) (Opinion on State’s Motion for Rehearing), a decision which has not been overruled by this Court, it was held that:

“. . .if [the complaint of premature pronouncement of sentence is made] on direct appeal or the matter is called to the attention of this court in any manner while the appeal is pending, the appeal will be dismissed. If no appeal is taken or if the matter of untimely pronounced sentence is not called to the appellate court’s attention in any manner on appeal, such voidable only sentence will not be subject to collateral attack by habeas corpus proceeding or otherwise.” Ibid at 676. (Emphasis supplied.)

Thus, the majority s holding today is in direct conflict with our decision in Ex parte Shields, supra. Stare decisis should mean something.

Moreover, the present case is clearly distinguishable from Housewright v. State, 573 S.W.2d 233 (Tex.Cr.App.1978), in which it was held that where the record is silent as to waiver of time provided for in Articles 40.05 and 41.02, Vernon’s Ann.C.C.P., it would be presumed on appeal that the defendant waived the time and that sentence was timely pronounced. The record in the present case affirmatively reflects that there was no intelligent and voluntary waiver of time by the appellant; therefore the sentence was pronounced prematurely.

As was stated in dissent in Housewright v. State, supra:

“Procedural law for criminal cases is established by the Legislature so that a lawyer representing clients may go anywhere in the State and be assured that the procedure will be the same. See Bouie v. State, 565 S.W.2d 543, 554-555 (Tex.Cr.App.1978) (Dissenting Opinion).
“In [the present] case the trial judge pronounced sentence without allowing the necessary 10 days to elapse for a motion for new trial or a motion in arrest of judgment, and, in addition, he failed to ascertain if the appellant wished to waive his right to this 10-day period. The right to have 10 days to file these motions is fundamental to our procedure. See Woods v. State, 532 S.W.2d 608 (Tex.Cr.App.1976), and authorities there cited.”

For the reasons stated, the appeal should be dismissed because the premature pronouncement of sentence was called to this Court’s attention while the present appeal was pending, and therefore, consistent with our holdings in Ex parte Shields, supra; and Housewright v. State, supra, we lack jurisdiction to entertain this appeal. Accordingly, the appeal should be dismissed.


author: DOUGLAS, Judge.

text:
    Calvin MARTIN, Appellant, v. The STATE of Texas, Appellee.
    No. 57576.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 28, 1979.
    Kenneth A. Back, Amarillo, for appellant.
    Thomas A. Curtis, Dist. Atty. and John Loudder Davis, Asst. Dist. Atty., Amarillo, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

Calvin Martin appeals his conviction for aggravated rape. The jury, upon hearing his plea of true to a prior conviction, assessed his punishment at twenty-five years.

Appellant contends that the court erred in denying his requests for information. Specifically, he complains of the court’s denial of access to a witness’ statement, the prosecutrix’ grand jury testimony and the prosecutor’s jury cards. The sufficiency of the evidence is not challenged.

On January 24, 1976, a Saturday night, the prosecutrix and her husband were in the Kitty Kat Lounge in Amarillo. The prosecutrix went to the ladies’ room. Appellant forced his way into the ladies’ room and choked her twice into unconsciousness. After she revived, he raped her.

Martin first contends the court erred in denying his request for the prosecutrix’ husband’s statement to use in cross-examining him. After the husband’s direct testimony, appellant made a timely request for his prior written statement. This was denied because, as a recorded conversation at the bench indicated, the court felt that appellant was not entitled to the statement unless the witness used it to refresh his memory. After the husband was cross-examined but before the State rested the appellant was furnished with the statement.

It was error not to allow appellant to examine the witness’ statement; there is no requirement that the witness use that statement to refresh his memory. Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977); see Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467 (1962). However, such a good faith error does not require reversal where no harm is demonstrated. Myre v. State, supra. Appellant was furnished with the statement and did not recall the witness. He makes no attempt in his brief to demonstrate actual harm. The statement is not in the record for our review. Under these facts, we conclude that the error was not reversible.

Martin next contends that he was not permitted to inspect the grand jury testimony of the prosecutrix. Inspection of grand jury testimony, upon request, is within the discretion of the court; such inspection should be allowed when the State uses such testimony or when appellant can show a particularized need. Garcia v. State, 454 S.W.2d 400 (Tex.Cr.App.1970). Of course, appellant must show that the testimony was recorded. Nelson v. State, 511 S.W.2d 18 (Tex.Cr.App.1974).

In the instant case, there is no showing that the prosecutor used the grand jury testimony or that it was ever recorded. Absent a showing of the existence of the testimony, there was no abuse of discretion in denying appellant’s request for it.

Finally, appellant contends that the court erred in denying his request for the district attorney’s jury records. This background information was kept on cards which were made a part of the appellate record.

In Linebarger v. State, 469 S.W.2d 165 (Tex.Cr.App.1971), we were presented with a similar contention and held, “The State has no obligation to furnish counsel for accused with information he has in regard to prospective jurors.” Accord, Enriquez v. State, 429 S.W.2d 141 (Tex.Cr.App.1968). See Redd v. State, 578 S.W.2d 129 (1979).

There is no reversible error. The judgment is affirmed.

ROBERTS, J., concurs in the result.


text:
    Joe Ramon RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 57796.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 28, 1979.

      Joe E. Anderson, San Antonio, court appointed, for appellant.
    Bill M. White, Dist. Atty., Gordon V. Armstrong, James W. Blagg and H. Wayne 'Campbell, Asst. Dist. Attys., San Antonio, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

Joe Ramon Rodriguez appeals from his conviction for murder. The court, after finding an alleged prior conviction “not true”, assessed his punishment at twenty-five years. The sufficiency of the evidence is not challenged.

Rodriguez contends that an extraneous offense was improperly admitted and that the prosecutor committed misconduct when he asked for the details of a prior conviction and elicited testimony of a remote prior conviction.

During the evening of August 27, 1975, appellant, Rogelio Guadelajara, Dolores Guadelajara and another individual were drinking. Dolores Guadelajara was shot to death by appellant. Appellant admitted his presence during the killing but testified that he did not participate and did not inform the authorities because of his past criminal record.

Appellant contends that evidence of an extraneous offense was improperly admitted. Rogelio Guadelajara testified that on March 14, 1976, he was leaving Tina’s Lounge after finishing a pool game. Appellant approached him outside of Tina’s. Rogelio Guadelajara testified, “That’s when he (appellant) called me and stopped me and told me to drop the charges against him.” Rogelio Guadelajara also was asked if he was afraid of appellant at that time. He responded, “Yes, yes.” Appellant contends that this evidence shows an extraneous offense and does not fall within any of the exceptions which allow admission of an extraneous offense.

The general rule concerning admission of attempts by a party to suppress or fabricate evidence is stated in Corpus Juris Secun-dum:

“For the purpose of showing that his adversary * * * is guilty of the act charged * * * a party may prove that his adversary attempted to flee after the accident, and, in addition, he may show that his adversary attempted to avoid a complete and fair trial as, for example, by the fabrication or suppression of evidence, or by the intimidation or corruption of witnesses * * * or by other methods.” 31A C.J.S. Evidence § 179 (1964).

In Baimbridge v. State, 171 Tex.Cr.R. 395, 350 S.W.2d 923 (1961), the defendant contended that his threat to kill an officer as he was placed in a jail cell should not have been introduced against him at a driving while intoxicated trial. We rejected this contention stating:

“If we regard the statement of the appellant to Officer Mahoney as an effort on the part of appellant to prevent the officer from testifying against him or an effort to prevent the officer from testifying the truth against appellant, the statement would be admissible in evidence as proof that one charged with crime threatened or attempted to intimidate a witness against him.”

In the instant case, appellant stood accused of murder. He confronted one of the State’s key witnesses, who was also the brother of the deceased, outside a bar at night. He told that witness to drop the charges against him. These are hardly the actions of an innocent accused. This evidence is every bit as probative of guilt, as would be flight by the accused. The evidence was properly admitted.

Complaint is next made that the prosecutor improperly sought to elicit the underlying details of one of appellant’s prior convictions. During the cross-examination of appellant, the prosecutor asked him if he had been previously convicted of murder. Rodriguez responded affirmatively and the examination continued:

“Q. Did you kill that guy with a pistol?
“A. Yes, sir.
“Q. What kind of pistol was that?”

Appellant’s objection was sustained and the jury was instructed to disregard the question.

Normally, the asking of a question which is not answered will not be grounds for reversal. In the instant case the jury had heard unobjected to testimony of the prior conviction for murder and that appellant used a pistol. The mere asking of a question concerning the type of pistol could hardly damage appellant further. The instruction for the jury to disregard the question was sufficient.

Rodriguez also argues that the court’s instruction to disregard failed to cure the prejudice created when the prosecutor elicited testimony of a remote prior conviction. After the objections concerning the type of gun, the prosecutor continued his cross-examination:

“Q. Also in regard to your record, you have also been convicted of theft?
“A. That was in ’57, ’58 down there.
“Q. But you were convicted—
“MR. ROTHE: I’ll object to that as being too remote.”

The objection was sustained and the jury was instructed to disregard the testimony.

The objection was made after the harmful evidence was testified to. A timely objection would have prevented its admission. This failure to timely object constitutes a waiver. Also, in view of the murder conviction already used to impeach appellant, the attempted use of the theft conviction coupled with a proper instruction to disregard was harmless error.

There is no reversible error. The judgment is affirmed.


author: ROBERTS, Judge.

text:
    Michael Anthony CAMPBELL, Appellant, v. The STATE of Texas, Appellee.
    Nos. 58656, 58657.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 28, 1979.

      Charles W. Yuill, Jr. and James Clark Gordon, Dallas, for appellant.
    Henry M. Wade, D. A., John Tatum and John William Booth, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

ROBERTS, Judge.

These are appeals from convictions for aggravated robbery (V.T.C.A., Penal Code, Section 29.03) and unauthorized use of a motor vehicle (V.T.C.A., Penal Code, Section 31.07). Appellant entered pleas of nolo contendere and guilty, respectively, to these offenses; punishment was assessed by the court at ten years’ and three years’ confinement, respectively, to run concurrently.

Appellant contends that the court failed to properly admonish him concerning his respective pleas in violation of Article 26.13, Vernon’s Ann.C.C.P. He also challenges the sufficiency of the evidence to support his conviction for aggravated robbery. We overrule these contentions and affirm the judgments of conviction.

These offenses were tried jointly. We find in the record appellant’s judicial confessions to the effect that on July 6,1977, in Dallas County, he stole a car and then several hours later drove to a department store and robbed the store’s manager at gunpoint as the manager was leaving the store with the day’s receipts. It was stipulated by both parties, however, that the gun used to effectuate the robbery was an “air pistol,” commonly known as a pellet gun.

Specifically, appellant argues that the court failed to comply with that provision of Article 26.13, supra, which provides that:

“(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
“(2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. . . . ”

The record reflects that in each case pending against him the appellant and his attorney executed an instrument entitled “Plea Bargain Agreement.” Both agreements reflect that in consideration for appellant’s plea the State would make no recommendation of punishment, except that the agreement in the aggravated robbery case provided that the State would oppose probation for that offense.

Article 26.13, supra, requires that prior to accepting a plea of guilt or nolo contendere, the court shall, among other things, admonish the appellant of the nonbinding effect of the prosecutor’s recommendation as to punishment, if there exists such a recommendation. In the present case, the appellant, with advice and consent of his attorney, agreed with the State that his pleas were to be given in consideration for no recommendation of punishment by the prosecutor. Prior to accepting the respective pleas of the appellant, the court inquired if the appellant understood that the plea bargain agreement “has not resulted in any agreed recommendation” and that punishment would be set by the court somewhere within the range provided by law; appellant affirmatively acknowledged that he understood the terms of these agreements. Under circumstances such as these, where no recommendation of punishment has been made by the State and the court admonishes the defendant of that fact, we hold that the court is not further required to literally follow the directives of Article 26.13(a)(2), supra, because to do so would be, at best, a fruitless act.

We conclude that in admonishing the appellant concerning his pleas of guilty and nolo contendere, the court substantially complied with the provisions of Article 26.-13, supra, which is all that is required by that statute in the absence of an affirmative demonstration by appellant that he was misled or harmed by the admonishment of the court. Article 26.13(c), supra. See also Kidd v. State, 563 S.W.2d 939 (Tex.Cr.App.1978). We find no merit in appellant’s argument; accordingly, this contention is overruled.

Appellant next contends that his conviction for aggravated robbery should be reversed because the evidence is insufficient to support a finding that the air pistol he used to rob the store manager was a deadly weapon. We also find this contention to be without merit in light of the evidence adduced in support of appellant’s plea of nolo contendere.

V.T.C.A., Penal Code, Section 1.07(a)(11) defines “deadly weapon” as:

“(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.” (Emphasis supplied.)

Although the air pistol in question may not qualify as a firearm because it was not designed to expel a projectile “through a barrel by using the energy generated by an explosion or burning substance,” V.T.C.A., Penal Code, Section 46.01, the evidence was clearly sufficient to support a finding that the air pistol was “manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury”. Section 1.07(a)(11); Walker v. State, 543 S.W.2d 634 (Tex.Cr.App.1976).

In support of appellant’s plea of nolo contendere to the offense of aggravated robbery, the State offered the testimony of Officer Don Crum as a qualified ballistics expert. Crum testified that through his training as a police officer and personal experience he was familiar with the type of air pistol used by the appellant to commit the robbery. He further testified that the weapon was designed to fire a .22 caliber projectile and was capable of causing the death of a human being if fired from close range.

The complainant store manager testified that appellant pointed the gun at him at close range and demanded the money. He also testified that the appellant threatened to kill him if he attempted to run.

Appellant urges that our decision in Mosley v. State, 545 S.W.2d 144 (Tex.Cr.App.1976) supports his contention. In Mosley, the defendant used an unloaded B.B. gun which was only capable of expelling a projectile about five feet and 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 B.B. gun 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 B.B. pistol, as used, was not calculated to produce death or bodily injury.

Unlike the B.B. gun in Mosley, supra, the air pistol in the present case was capable of inflicting death or serious bodily injury and was designed for that purpose. Moreover, in the manner of its use by appellant, it was capable of causing death or serious bodily injury. Section 1.07(a)(11), supra; Walker v. State, supra. Accordingly, in light of the uncontradicted testimony of Crum and the complainant, we find the evidence sufficient to support appellant’s conviction for aggravated robbery; appellant’s contention is overruled.

The judgments are affirmed.

      . See and compare Denham v. State, 574 S.W.2d 129 (Tex.Cr.App.1978), wherein it was held that a victim who observes and receives a wound is competent to testify as to whether or not the weapon used to inflict the wound was a “deadly weapon,” thus expert testimony on this issue is not always necessary.


author: ONION, Presiding Judge. TOM G. DAVIS, J.,

text:
    Ex parte John HUNTER.
    No. 59192.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 28, 1979.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is a post-conviction application for writ of habeas corpus under the provisions of Article 11.07, V.A.C.C.P.

Petitioner alleges that he was convicted of aggravated robbery on February 4, 1976 and sentenced to five (5) years’ imprisonment when he was less than seventeen years old and that prior to his indictment and after a discretionary transfer from juvenile court he had not been accorded an examining trial as required by the mandatory provisions of V.T.C.A., § 54.02(h), Family Code, and the trial court lacked jurisdiction to try him for aggravated robbery. Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App. 1977).

The State in its answers confesses reversible error was made and that the petitioner was not accorded an examining trial and did not waive the same and that the indictment is void.

In light of the record before us, appellant is entitled to the relief he seeks. Ex parte Menefee, supra; Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978); White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979); Jones v. State, 576 S.W.2d 853 (Tex.Cr.App.1979); Ex parte Le Blanc,- S.W.2d-(Tex.Cr.App.1979) (# 58,575, 2/7/79).

The indictment in Cause No. 14,104-A in the 16th Judicial District Court of Denton County is hereby dismissed, and the petitioner is ordered released to the custody of the sheriff of Denton County for remand to the 16th Judicial District Court for the purpose of according the petitioner an examining trial.

It is so ordered.

TOM G. DAVIS, J.,

dissents for the rea-

sons set forth in the dissenting opinions in White v. State, supra, and Ex parte Le Blanc, supra.

      . Menefee is cited sometimes as Menefee v. State at it was mis-styled in 561 S.W.2d 822. The original opinion was styled Ex parte Mene-fee.


author: CLINTON, Judge. DALLY, Judge,

text:
    Linda Kay THOMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 60149.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 28, 1979.
    James H. Kreimeyer, Belton, for appellant.
    Patrick J. Ridley, County Atty., and John A. Phinizy II, Asst. County Atty., Belton, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Appellant was convicted of prostitution in a trial before a jury. Punishment was assessed at $500.00 and 180 days in county jail. One ground of error is raised in this appeal.

The information in this case alleged in pertinent part that appellant:

“did knowingly and intentionally offer to engage in sexual conduct, to-wit: sexual intercourse, with Robert D. Meeker, for a fee payable to the said Linda Kay Thompson . . . ”

In his charge to the jury, the judge defined “sexual conduct” to include deviate sexual intercourse, sexual contact, and sexual intercourse. In applying the law to the facts, the court charged the jury as follows:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 6th day of August, 1977, in Bell County, Texas, the defendant, Linda Kay Thompson, did knowingly and intentionally offer to engage in sexual conduct with Robert D. Meeker, for a fee payable to the said Linda Kay Thompson, then you will find the defendant guilty of prostitution as charged.”

Appellant contends that the above charge authorized the jury to convict if it found that she offered to engage in (1) deviate sexual intercourse, (2) sexual contact, or (3) sexual intercourse, while the information only charged that she offered to engage in sexual intercourse. Thus, appellant contends that the trial court committed fundamental error by charging the jury on a theory not alleged in the information.

The information in this case alleged a violation of V.T.C.A. Penal Code, Section 43.02(a)(1), but did so by alleging specifically that the sexual conduct involved was sexual intercourse. Thus, appellant was brought to trial on that specific charge. By instructing the jury that sexual conduct means all three definitions set out in V.T. C.A. Penal Code, Section 43.01(4), and then authorizing conviction on a finding that appellant offered to engage in “sexual conduct,” the trial court did authorize the jury to convict on a theory not alleged in the indictment. We have held that such a charge is fundamentally defective regardless of whether an objection to the charge was made. Moore v. State, 574 S.W.2d 553 (Tex.Cr.App.1978); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977).

For this reason the judgment below is reversed and the cause is remanded.

DALLY, Judge,

concurring.

There was no objection to the court’s charge before it was submitted to the jury. After a thorough review of the record I am of the opinion that the appellant was not harmed by the court’s charge which was submitted to the jury. However, I concur in the reversal of this judgment because the disposition of the appeal is controlled by a number of decisions including Gooden v. State, 567 S.W.2d 382 (1979); Brewer v. State, 572 S.W.2d 940 (Tex.Cr.App.1978); Robinson v. State, 553 S.W.2d 371 (Tex.Cr. App.1977); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977).

My view, which is not in accord with the majority of this Court, is expressed in Gooden v. State, supra (Concurring Opinion); Hill v. State, 576 S.W.2d 642 (1979); Williams v. State, 577 S.W.2d 241 (1979); Williams v. State, 535 S.W.2d 352 (Tex. Cr.App.1976).

I concur in the disposition of this appeal.

W. C. DAVIS, J., joins.

      . The statute provides:
      (a) A person commits an offense if he knowingly:
      (1) offers to engage, agrees to engage, or engages in sexual conduct for a fee.

      . In deference to views of my brethren who now only reluctantly concur with the Robinson rule — as in, e. g., concurring opinion on motion for rehearing in Gooden, 567 S.W.2d 382 (1979) —it is observed that the record contains some evidence from which the jury could have inferred an offer to engage in deviate sexual intercourse or sexual contact. Appellant was in the company of another female on the evening in question and, according to the witness who testified to the alleged solicitation, “They asked me if I was looking to party ” and in the ensuing conversation in which the witness offered to pay $15.00 and asked, in effect, what it would buy, appellant asked “What do you want?” That the conversation later more or less settled on a specific act does not detract from the initial suggestions of deviate sexual intercourse or sexual contact. Moreover, for this Class B misdemeanor offense for which the maximum sentence is 180 days in jail and a fine not to exceed $1,000, the jury assessed punishment at the full 180 days and a fine of $500 for this appellant whose sworn application for probation stated that she had never before been convicted of a felony or misdemeanor above Class C misdemeanor and had not been granted probation in the preceeding five years.


text:
    Ex parte Donald Ray WILSON.
    No. 60173.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 28, 1979.

      Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P. Petitioner’s sole contention is that he has been placed in double jeopardy by being convicted of robbery by assault in Cause No. 189276 after previously being convicted in Cause No. 189275 for the offense of assault to murder. Both offenses arose out of the same transaction and upon the same victim, Alice Randolph.

The record now before the court supports the petitioner’s allegations. The State has filed an answer pursuant to Art. 11.07, supra, conceding that petitioner was convicted of assault with intent to murder and robbery by assault, wherein both offenses arose out of the same transaction. The trial court made findings that both offenses arose out of the same transaction; however, the conviction in Cause No. 189275 was prior to the conviction in Cause No. 189276.

This Court has held many times that the State is barred by the carving doctrine in prosecuting the petitioner of robbery by assault after he has been convicted for the offense of robbery with intent to murder when both offenses arose out of the same transaction involving the same victim. See Duckett v. State, 454 S.W.2d 755 (Tex.Cr. App.1970); Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976); Ex parte Farris, 538 S.W.2d 134 (Tex.Cr.App.1976).

The relief sought is granted. Petitioner’s conviction in Cause No. 189276 is hereby declared void and said indictment is dismissed.

IT IS SO ORDERED.


author: DALLY, Judge.

text:
    Ex parte Roy BARCELO.
    No. 60379.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 28, 1979.
   OPINION

DALLY, Judge.

This is a post-conviction habeas corpus proceeding pursuant to the provisions of Art. 11.07, V.A.C.C.P.

On December 14, 1977, petitioner was convicted of the offense of delivering more than one-fourth ounce of marihuana in Cause No. 8518 on the docket of the 105th Judicial District Court of Upshur County. Punishment was assessed at imprisonment for five years, and sentence was pronounced.

It is petitioner’s contention that the indictment in Cause No. 8518 does not charge a felony offense. We agree with petitioner’s contention and set aside the conviction.

The indictment alleges that petitioner, on or, about October 27, 1977, “did then and there knowingly and intentionally deliver to Terry Davis marihuana, . . . ” Although there is a finding in the judgment that the petitioner delivered more than one-fourth ounce of marihuana, apparently based on the evidence, the indictment does not allege that the amount of marihuana delivered was more than one-fourth ounce or that the delivery was made for remuneration.

The knowing or intentional delivery of marihuana is a class B misdemeanor if the accused delivers one-fourth ounce or less of marihuana without receiving remuneration. Controlled Substances Act, Sec. 4.05(d) and (f). Since the indictment under which petitioner was convicted failed to allege the amount of marihuana delivered or whether the delivery was for remuneration, it does not allege a felony offense. Controlled Substances Act, Sec. 4.05(d) and (f). Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App.1976); Whitaker v. State, 572 S.W.2d 956 (Tex.Cr. App.1978); Ex parte Osbourn, 574 S.W.2d 568 (Tex.Cr.App.1978).

The State’s contention that the appellant is not entitled to relief because he entered into a plea bargain and did not obtain the trial court’s permission to appeal pursuant to Art. 44.02, V.A.C.C.P. is without merit. As we construe Art. 44.02, V.A. C.C.P. it does not apply to habeas corpus proceedings. Since the allegations of the indictment were insufficient to allege a felony, the district court did not have jurisdiction and the conviction is subject to collateral attack. Ex parte Osbourn, supra.

The relief prayed for is granted and the conviction in Cause No. 8518 is set aside.

It is so ordered.


author: ONION, Presiding Judge.

text:
    Ex parte Nellie PARKER a/k/a Nellie Green Argersinger.
    No. 60491.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 28, 1979.

      Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

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

Petitioner contends that her confinement is unlawful because the judgment of conviction is based upon an information which fails to state an offense against the law. We agree with petitioner’s contention, and set aside the conviction.

On July 12, 1978, petitioner, having waived prosecution by indictment, entered a plea of guilty before the court to a felony information which purported to charge her with the offense of criminal mischief, a third degree felony. She was convicted, and the court assessed punishment at imprisonment for four years. Petitioner was then sentenced to an indeterminate term of not less than two years nor more than four years; however, no appeal was perfected.

An examination of the information reveals that it fails to allege that the property was damaged or destroyed “without the effective consent of the owner,” an essential element of the offense of criminal mischief under V.T.C.A., Penal Code, Section 28.03. The information is, therefore, fundamentally defective and the conviction is void. Timms v. State, 542 S.W.2d 424 (Tex. Cr.App.1976); Ex parte Dobbins, 571 S.W.2d 30 (Tex.Cr.App.1978).

The conviction is set aside and the information is ordered dismissed. A copy of this opinion shall be delivered to the Department of Corrections.

The relief prayed for is granted.


author: RAY, Justice.

text:
    Wylie Neal BUTLER, Appellant, v. Nancy Kay BUTLER, Appellee.
    No. 8603.
    Court of Civil Appeals of Texas, Texarkana.
    Dec. 27, 1978.
    Rehearing Denied Feb. 13, 1979.

      Shirley R. Levin, Levin, Weinburg & Le-vin, Dallas, Jerry L. Weinstein, Law Offices of Jerry L. Weinstein, Arlington, for appellant.
    David B. Moseley, Jr., Moseley & Jones, Dallas, for appellee.
   RAY, Justice.

This is a divorce case. Appellee (petitioner), Nancy Kay Butler, brought suit seeking a divorce from appellant (respondent), Wylie Neal Butler, and sought custody of their minor children. The trial court granted the divorce to Nancy Kay Butler and appointed her the managing conservator of the children and ordered Wylie Neal Butler to pay child support in the sum of $200.00 per month. Appellant has perfected his appeal and submits thirty points of error for our consideration.

The judgment of the trial court will be affirmed.

Appellant and appellee were married on December 30,1961. Two children, Billy Joe Butler and Cynthia Kay Butler, were born in Texas during the marriage. In May of 1975, appellant and appellee separated and then reconciled briefly. On August 12, 1975, Wylie Neal Butler left his wife and moved to Louisiana. Mrs. Butler filed her petition for divorce in Dallas County on August 22, 1975.

When Wylie Neal Butler left, he took his minor daughter, Cynthia Kay, with him. Appellant never told his wife his new location or communicated any information to her concerning the well-being of Cynthia. Appellee was never able to obtain personal service upon her husband who always managed, to elude service of process. She enlisted the services of the sheriff’s departments of four different counties and parishes and hired a private investigator to locate her husband and daughter. In addition, Mrs. Butler used the Parent Locater Service of the Texas Department of Welfare to try to locate appellant. It was not until she was served with process in a lawsuit instituted by Wylie Neal Butler in Bossier Parish, Louisiana, seeking separation from bed and board and custody of their minor daughter, that Nancy Kay Butler learned the location of her husband and daughter. She obtained a Texas temporary restraining order, hired another private investigator, and went to Louisiana to get temporary custody of her daughter. She was successful in gaining possession of Cynthia Kay while in Louisiana and has retained possession since that time.

On June 24,1977, the trial court authorized substituted service of citation upon Wylie Neal Butler by delivering the citation to James B. Wells, his attorney of record in the Louisiana divorce proceeding by certified mail, return receipt requested. Service was had on June 27, 1977, and the return was filed with the district clerk of Dallas County on July 1, 1977.

On July 13,1977, Nancy Kay Butler filed her answer in the Louisiana divorce proceedings.

Appellant Butler filed a special appearance in the Texas divorce proceeding on July 1, 1977, asserting that he was not amenable to process issued by the courts of this State. On September 9, 1977, a hearing was held and the trial court overruled appellant’s objections to the jurisdiction of the Texas court. At the September 9 hearing, appellant’s attorney introduced evidence of the pending lawsuit in Louisiana and argued that service on Wylie Neal Butler was not properly made. No evidence was offered that appellant was not amenable to the jurisdiction of the Texas court. By only raising the issue of defective service, appellant waived his special appearance. On the same day, the trial court, acting through a different judge, entered a decree of divorce, made Nancy Kay Butler the managing conservator of the minor children, ordered child support and entered a decree for attorney’s fees in favor of appel-lee.

Appellant’s main contentions are: (1) that the trial court did not have in person-am jurisdiction over him; (2) that the manner of substituted service upon his attorney of record in the Louisiana divorce proceeding was improper; and, (3) the trial court could not immediately proceed to enter judgment against him.

Appellant asserts that the courts of this State lack in personam jurisdiction over him and are therefore unable to render a binding judgment against him. Jurisdiction over Wylie Neal Butler depends on the applicability of Sections 3.26 (Supp. 1978-79) and 11.051 (Supp. 1978-79), the long-arm provisions of the Texas Family Code, Section 3.26 provides that the trial court may exercise personal jurisdiction over the respondent, or the respondent’s personal representative, although the respondent is not a resident or domiciliary of this State if: (1) this State is the last state in which marital cohabitation between petitioner and respondent occurred and the suit is commenced within two years after the date on which cohabitation ended; and further provides that a court acquiring jurisdiction under Section 3.26 also acquires jurisdiction in a suit affecting the parent-child relationship if Section 11.051 of the Texas Family Code is applicable. Sec. 11.051 provides the following:

“In a suit affecting the parent-child relationship, the court may exercise personal jurisdiction over a person on whom service of citation is required or over the person’s personal representative, although the person is not a resident or domiciliary of this state, if:
(1) the child was conceived in this state and the person on whom service is required is a parent or an alleged or probable father of the child;
(2) the child resides in this state, as defined by Section 11.04 of this code, as a result of the acts or directives or with the approval of the person on whom service is required;
(3) the person on whom service is required has resided with the child in this state; or
(4) notwithstanding Subdivisions (1), (2), or (3) above, there is any basis consistent with the constitutions of this state or the United States for the exercise of the personal jurisdiction.”

A divorce proceeding is a quasi in rem action. Dosamantes v. Dosamantes, 500 S.W.2d 233 (Tex.Civ.App. Texarkana 1973, writ dism’d). If a court has jurisdiction over the resident spouse, it may render a valid and binding divorce over the nonresident spouse after notice and hearing since it is not exercising personal jurisdiction, but is instead exercising jurisdiction over the subject matter, namely, the marital status of its citizens. However, before judgment affecting the parent-child relationship of the non-resident defendant will be entitled to full faith and credit in a foreign jurisdiction, the court rendering the decree must first acquire personal jurisdiction over the non-resident defendant because the non-resident defendant is thereby subjected to an in personam judgment. May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). In Mitchim v. Mitchim, 518 S.W.2d 362 (Tex.1975), the Texas Supreme Court gave full faith and credit to an Arizona alimony judgment. The court looked to see if the Arizona court had in personam jurisdiction. It held that Arizona did have jurisdiction and stated the rule to be the following:

“Accordingly, it is our opinion that in personam jurisdiction may be acquired over a non-resident defendant in a divorce action by extraterritorial personal service of process if (1) a statute of the support ordering state has authorized the acquisition of such jurisdiction in that manner, and (2) there exists sufficient contacts between the defendant and the forum relevant to the cause of action to satisfy ‘traditional notions of fair play and substantial justice.’ ”

This rule was followed in Fox v. Fox, 526 S.W.2d 180 (Tex.Civ.App. Dallas 1975, no writ). Mitehim supports the argument that if Texas courts must give in personam effect to sister-state judgments against Texans in “appropriate cases growing out of domestic difficulties,” then it is only equitable that Texas judgments be given the same effect in other states. Sampson, Jurisdiction In Divorce and Conservatorship Suits, 8 Tex. Tech L.Rev. 159 at 188 (1976). This is the underlying rationale of the long-arm provisions of the Texas Family Code.

In Scott v. Scott, 554 S.W.2d 274 (Tex. Civ.App. Houston-lst Dist. 1977, no writ), it was decided that the parties’ marital cohabitation in Texas from November 22, 1975, until February 4, 1976, brought Mrs. Scott, who moved back to California on February 4, ```````1976, within the Texas long-arm jurisdiction under Section 3.26(a)(1) of the Texas Family Code. Justice Peden, an eminent jurist, writing for the Houston Court of Civil Appeals, stated that in a divorce proceeding involving child support and custody the application of Section 3.26 was constitutionally limited by the due process requirements that:

“in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Mitehim v. Mitehim, 518 S.W.2d 362, 366 (Tex.1975).

Mrs. Scott had made a special appearance under Rule 120a, Tex.R.Civ.P., to contest the jurisdiction of the Texas court on the basis that she lacked minimum contacts with the State of Texas. She relied on the record of the California proceedings in which the California court had already issued temporary orders granting her custody and child support. The Houston Court of Civil Appeals held that while a judicial record is always admissible to prove the fact that a judgment has been rendered, the time of its rendition and the terms and effect of the judgment, the record may not be introduced to establish the facts on which a judgment was based. The court held that since a final decree had not been entered in California the residency question had not been finally disposed of in that state and thus California’s residency determination insofar as it had been applied to the issuance of temporary orders was not entitled to full faith and credit. It was held that Mrs. Scott had failed to carry her burden of proving the lack of minimum contacts with the State of Texas and therefore the trial court did not abuse its discretion in overruling Mrs. Scott’s plea in abatement and proceeding to enter a final divorce decree in Texas although Mrs. Scott had a similar proceeding pending in California.

In the present case, we are persuaded that Mr. Butler is subject to the long-arm jurisdictional provisions of Sec. 3.26 of the Texas Family Code. The evidence establishes that Mrs. Butler is a resident of the State of Texas; that she commenced her suit for divorce in Texas within a very few days after Mr. Butler left her; that Texas is the last state in which marital cohabitation between the parties occurred and that the suit was commenced within two years after the date on which cohabitation ended. We hold that since the suit was filed shortly after the cohabitation ended, the minimum contacts necessary for Texas to exercise long-arm jurisdiction over Mr. Butler were present. Mr. Butler argues that since Section 3.26 did not become effective until September 1, 1975, that it should have no application to this suit which was filed on August 22,1975. We find this argument to be without merit because the requisites of the statute were not applied until he was served with process on June 27, 1977. The trial court did not abuse its discretion in overruling appellant’s objections to the jurisdiction of the State of Texas relative to the divorce proceedings under Section 3.26 of the Texas Family Code. Scott v. Scott, supra; 8 Tex. Tech L.Rev. 159, 215, supra; Rules 106(f) (Supp.1978) and 108 (Supp. 1978), Tex.R.Civ.P.

The Texas Family Code long-arm jurisdictional statutes are procedural and operate retrospectively conditioned only by the requirement of meeting due process. Sections 3.26 and 11.051 apply to all cases in which the requisite minimum contacts were established prior to September 1, 1975, unless such application would constitute a denial of due process. 8 Tex. Tech L.Rev. 159, 215-216, supra; Harrison v. Cox, 524 S.W.2d 387 (Tex.Civ.App. Fort Worth 1975, writ ref’d n. r. e.); Hilt v. Kirkpatrick, 538 S.W.2d 849 (Tex.Civ.App. Waco 1976, no writ).

This Court is of the opinion that the trial court not only acquired jurisdiction to grant the divorce, but it also acquired jurisdiction under Section 11.051 of the Texas Family Code to determine child custody and child support. Two cases interpreting Section 11.051, which did not involve a current divorce proceeding, indicate that a greater showing of minimum contact is required under Section 11.051 as compared to Section 3.26. Corliss v. Smith, 560 S.W.2d 166 (Tex.Civ.App. Tyler 1977, no writ); Zeisler v. Zeisler, 553 S.W.2d 927 (Tex.Civ.App. Dallas 1977, writ dism’d).

In the present case, the children were born in Texas and lived with their mother and father in this State. The parents and children had been long time residents of Texas and it was only shortly before suit was filed in Texas that appellant Butler left with his minor daughter. This occurred following a previous separation and brief reconciliation. Under the facts here presented, we conclude that the trial court was justified in exercising jurisdiction over the parent-child relationship under Section 11.051(1) and (3) and believe that our sister states would give full faith and credit to the judgment entered and would enforce the decree if called upon to do so. 54 Texas L.Rev. 1008 (1976); 8 Tex. Tech L.Rev. 159, 206-214.

Our holdings may be summarized by stating that in a divorce proceeding if Texas is the last state of marital cohabitation and suit is filed within two years after the cohabitation has ended, the minimum contacts necessary for Texas to exercise long-arm jurisdiction under Section 3.26 over the nonresident defendant are present unless the non-resident proves otherwise. In a divorce case where jurisdiction over the non-resident spouse is properly based and established under Section 3.26, and if the factual proof for reliance on Section 11.051 is shown to satisfy the requirements under one of the subdivisions to Section 11.051, then separate proof of minimum contacts is not required for the court to exercise jurisdiction over that part of the suit affecting the parent-child relationship. If the suit is not for divorce under Section 3.26, but is only a suit affecting the parent-child relationship under Section 11.051, then proof establishing one of the subdivision requirements of 11.051 is not dispositive, but requires additional proof of minimum contacts in order to satisfy due process requirements.

Appellant contends that the substituted service of process, executed by sending the citation by certified mail, return receipt requested, to his attorney of record in the Louisiana proceeding was not reasonably calculated to give him notice of the suit. He does not contend that he failed to receive actual notice of the suit.

Substituted service in this case on appellant’s attorney outside Texas was pursuant to Tex.R.Civ.P. 108 (Supp.1978) which allows service in the same manner as resident substituted service pursuant to Tex.R.Civ.P. 106 (Supp. 1978). Rule 106, supra, provides that where it is impractical to secure personal service, then the court, upon motion, may authorize service in any other manner which will be reasonably effective to give the defendant notice of the suit. In the present case, Mrs. Butler moved for substituted service, a hearing on the motion was held, and an order was entered directing that service upon Wylie Neal Butler be had by delivering citation to his Louisiana attorney by certified mail, return receipt requested. A copy of the citation and return receipt are a part of the record.

Appellant argues that Rule 106 allows service only upon a party at his usual place of business or abode, and in no other way. This contention ignores the plain language of Rule 106(f) which allows the court to authorize service “in any other manner which will be reasonably effective to give the defendant notice of the suit.” Appellant relies upon Sindorf v. Cen-Tex Supply Co., 172 S.W.2d 775 (Tex.Civ.App. El Paso 1943, no writ), for the point that personal service can never be effected by service upon a person’s attorney. In Sindorf citation was made on Kenneth Slack by delivering a copy of the citation to T. F. Slack, “his attorney.” Sindorf is not a substituted service case under Rule 106(f) and is not applicable to the present case.

We hold that the service of citation upon Wylie Neal Butler pursuant to Tex.R.Civ.P. 108 was reasonably calculated to give appellant notice of the suit and meets due process requirements.

Appellant specially appeared pursuant to Tex.R.Civ.P. 120a to contest the jurisdiction of the trial court. During the proceeding, appellant raised only the issue of defective service and thereby turned the special appearance into a general appearance.

The issue at a special appearance is jurisdiction, and nothing else. Thode, in his article on special appearance, explains:

“The words ‘not amenable to process issued by the courts of this state’ can only be interpreted to mean that the special appearance is available solely to establish that the Texas court cannot, under the federal and state constitutions and the appropriate state statutes, validly obtain jurisdiction over the person or the property of the defendant with regard to the cause of action pled. Defective service or defective process, or even an attempt to bring the defendant before the court under the wrong statute does not authorize the use of the special appearance.” 42 Texas L.Rev. 279, 312 (1964).

The trial judge overruled the special appearance and found that it had jurisdiction based on Sections 3.26 and 11.051 of the Texas Family Code. Since the trial court had jurisdiction over the appellant under Sections 3.26 and 11.051 of the Texas Family Code, it was not error for the trial court to immediately proceed to trial in the absence of an answer having been filed by appellant.

Had there been no jurisdiction over the appellant under Sections 3.26 and 11.051 of the Texas Family Code and had appellant submitted himself to the jurisdiction of the court by turning his special appearance into a general appearance, then it would have been error to render a default judgment before the first Monday after the expiration of twenty days. See 2 McDonald’s, Texas Civil Practice, Sec. 9.05.1. The fact that appellant turned his special appearance into a general appearance in this case does not afford appellant additional time within which to file an answer. Appellant could have filed his answer along with his sworn special appearance motion under Rule 120a, supra, and have forestalled the default judgment which was taken by appellee. Since the court had jurisdiction under Sections 3.26 and 11.051 of the Texas Family Code through service of process under Tex.R.Civ.P. 108, the trial court was authorized to immediately proceed to judgment because no answer had been filed by appellant and the required time for answering had elapsed.

The evidence supports the trial court’s judgment. Appellant’s points of error are overruled.

The judgment of the trial court is affirmed.