author: NORWIN D. HOUSER, Special Judge.

text:
    STATE ex rel. Betty NAES, Relator, v. Hon. Michael J. HART, Judge of the Twenty-Second Judicial Circuit of Missouri, City of St. Louis, Division 16, or His Successor, Respondent.
    No. 38311.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 15, 1977.

      Tyree C. Derrick, St. Louis, Frank J. Kaveney, Clayton, for relator.
    David 0. Fischer, for the Circuit Court for St. Louis City, Armstrong, Teasdale, Kramer & Vaughn, Frank N. Gundlach, Edwin L. Noel, Bryan, Cave, MePheeters & McRoberts, S. Richard Heymann, David S. Slavkin, St. Louis, for respondent.
   NORWIN D. HOUSER, Special Judge.

Original proceeding in prohibition at the relation of Betty Naes against Circuit Judge Michael J. Hart. Following issuance of our preliminary rule respondent judge filed a return and relator filed a reply. The question is whether our preliminary rule should be made permanent.

Betty Naes is defendant in an indictment charging her with six counts of Stealing Over Fifty Dollars. Her counsel served notice to take depositions under Rule 25.41. Under that rule the manner of taking depositions in a criminal case is governed by the rules relating to the taking of depositions in civil cases. Drs. Richard Clark and Walter Ballinger and Messrs. Peter Ruger and Joe Evans were subpoenaed as witnesses before a notary public and registered professional reporter. Witnesses Clark, Ruger and Evans appeared and were partially deposed. Mr. Fischer, an assistant circuit attorney, was present, representing the state. Messrs. Frank Kaveney and Tyree Derrick were present, representing defendant. Dr. Clark was the first witness to be deposed. At the commencement of Dr. Clark’s deposition Mr. Fischer stated for the record that Dr. Clark (who is not a party to the criminal action) would be represented by Mr. Richard Heymann, an attorney, who intended to participate actively in the taking of the depositions. Mr. Derrick objected on the ground that Mr. Heymann was not an attorney of record in the case and that Dr. Clark was not on trial and had no right to have an attorney participate in the deposition. This objection was repeated and Mr. Heymann’s appearance and participation were protested several times throughout the proceedings, but Mr. Heymann refused to accede to the objections. He actively participated in the questioning of all three witnesses. On numerous occasions Mr. Heymann interrupted questions propounded by counsel of record, attempted to clarify or made statements or observations concerning such questions, or accused defendant’s counsel of various improprieties. Mr. Hey-mann objected to questions on various grounds, such as that the question was too broad, or accusatory, or irrelevant, or repetitious, or was asked for purposes of delay or harassment, or violated the attorney-client privilege. Three times Mr. Heymann instructed the witness not to answer the question and on two occasions suggested the deposition be concluded. Finally, during Mr. Ruger’s deposition, the confrontation between counsel became heated and intense. Mr. Heymann finally suggested that the deposition be concluded and over the protest of counsel for defendant it was concluded and terminated “for the time being.” Thereafter defendant’s counsel filed a motion to dismiss “or for other appropriate relief” under Rule 56.01(c), setting forth the actions and conduct of Mr. Heymann during the taking of the depositions; alleging that his actions and conduct were improper and that defendant’s discovery rights were thereby violated, and that defendant was caused additional expense in certifying questions to the court for a ruling, and certifying a list of questions not answered. Defendant prayed (1) for dismissal of the indictment for frustration of the right of discovery, or in the alternative (2) an order on the witnesses, under pain of contempt, to answer the certified questions; (3) an order on witness Peter Ruger not to raise the attorney-client privilege with respect to a certain field of inquiry; (4) an order instructing all counsel in the case “that no attorney other than the Circuit Attorney or Assistant Circuit Attorney and defense counsel is to participate or say anything on the record during said depositions of Dr. Clark, Dr. Ballinger, Mr. Evans and Mr. Ruger or any other witnesses,” and (5) an order on the circuit attorney’s office, Mr. Heymann, or the witnesses deposed, under Rules 56.01(c) and 61.01(g), “to pay defendant reasonable expenses, including attorney’s fees, necessitated by this motion concerning discovery rights of the defendant.”

Following a hearing on the motion respondent judge denied paragraph (1) of the prayer for relief, took under submission paragraphs (2), (3) and (5), and either overruled paragraph (4) (which respondent alleges) or indicated that he would overrule it (as alleged by relator).

The petition for a writ of prohibition alleged that respondent will exceed his jurisdiction in carrying out his intention to deny paragraph 4 of the prayer for relief in relator’s motion. Relator’s prayer was for a writ commanding respondent to enter an order granting paragraph 4 and directing the attorneys of record and Mr. Heymann that no attorney other than the attorneys for the parties of record is to participate or say anything on the record during the depositions of the four named witnesses or any other witnesses in the cause.

Relator’s first point is that the ruling by the trial court is in excess of its jurisdiction or an abuse of discretion because it permits non-party witnesses and their attorneys who are not attorneys of record “to determine the relevancy and materiality of evidence and to permit the non-party witnesses to refuse to answer questions put to them on the advice of their non-party attorneys and to further permit the non-party attorney to stop the deposition being taken pursuant to the rules of discovery.”

By overruling paragraph (4) the circuit court did not thereby acquiesce in or condone any improprieties of witnesses or their counsel during the taking of the depositions. Nor did the court thereby “permit” deponents or their attorney, upon resumption of the depositions, to do any of the things alleged in her first point. Respondent simply denied a prayer for an overly broad order.

Relator’s evident purpose in paragraph (4) of her prayer for a protective order was to insure that when the taking of depositions resumed in the future no attorneys other than counsel for the State and for defendant should be allowed to participate in the depositions or say anything of record. That same purpose was the gist of the petition for a writ of prohibition. The threshold question, therefore, is a narrow, limited one: whether the court exceeded its jurisdiction or abused its discretion in refusing to rule that no other lawyer could “participate” in depositions or “say anything of record.” Extraneous issues will be ignored.

Prohibition will not lie to control discretionary judicial action but is the proper remedy where a court makes an order in discovery proceedings which exceeds its jurisdiction or constitutes an abuse of discretion. State ex rel. Danforth v. Riley, 499 S.W.2d 40, 42 (Mo.App.1973).

Supreme Court Rules 56, 57 and 61, on the subjects of Discovery, Depositions and Sanctions in the Enforcement of Discovery grant courts wide powers and broad discretion in administering discovery pro-eeedings. That the rules contemplate the exercise by courts of a considerable discretion in determining who shall be present at the taking of depositions, and the conditions under which depositions are to be taken, is evident from Rule 56.01(c) on Protective Orders. This rule authorizes the court to make any order which justice requires, including orders (2) “that the discovery may be had only on specified terms and conditions * * and (5) “that discovery be conducted with no one present except persons designated by the court”. That the rules contemplate the possibility of an attorney being present at the taking of depositions is implicit in the wording of the second paragraph of Rule 61.01(g). That rule authorizes the proponent of a question to move for an order compelling an answer, and paragraph (g) provides that if the motion is granted “the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them” may be required to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees.” (Our emphasis.) That a deponent is entitled to access to legal advice on the subjects of privilege and self-incrimination in connection with his appearance and submission to interrogation at the taking of a deposition is elementary as a matter of essential fairness, provided the presence and conduct of deponent’s counsel and the number and length of conferences between deponent and counsel do not unduly interfere with the orderly conduct of the interrogation.

Accordingly, the judge of a court in which a criminal cause is pending has jurisdiction, power and authority, on application, to permit a lawyer for a non-party witness being deposed to be present at the deposition for the purpose of counselling and advising privately with the witness concerning matters of privilege or self-incrimination, following which the witness may answer or refuse to answer a particular question, as he may be advised. If allowed to be present the lawyer may object to a question on the ground that it violates the witness’ privilege or his right against self-incrimination, and may dictate into the record the reasons for his objection. Since the lawyer is not an attorney of record, however, and does not represent a party to the litigation, he has no standing to address the officer before whom the deposition is being taken, or the court, generally on the issues of the case or to make objections, observations or remarks of record on grounds of relevancy or with reference to any other matter not relating to privilege or self-incrimination. In no event does he have the right to stop the taking of the deposition.

Whether a lawyer should be permitted to be present for this limited purpose is a matter within the sound discretion of the judge, to be exercised judicially and not arbitrarily. The entry or refusal to enter such order depends upon the facts and circumstances. The motion prayed for an order that no counsel other than counsel for the State and defendant “participate or say anything of record” during the depositions of the four named witnesses “and any other witnesses.” Such a broad and all-inclusive order would not only have excluded Mr. Heymann (at whose conduct relator strikes) but also would have excluded every other lawyer in the world. Furthermore, it would have imposed a rule of absolute silence on counsel. If a lawyer is permitted to appear for a non-party deponent his role is not thus limited. Under the above restrictions he may properly “say something of record.” There was no abuse of discretion in refusing to exclude all lawyers or in refusing to impose upon counsel the requested universal rule of absolute silence.

To accomplish the end sought it was not necessary to ask for the broad order requested in the motion. A prayer restricted to exclusion of the allegedly offending lawyer only, or prescribing proper limits and bounds of the lawyer’s participation, would have posed an entirely different legal question to the presiding judge.

We notice that while ruling on paragraph (4) the court reserved its rulings on paragraphs (2), (3) and (5) of the prayer of the motion for a protective order. If the court, upon examination, found merit in the request to order the witnesses to answer the questions, and deemed it just to make an award against deponents’ counsel under Rule 56.01(c) and 61.01(g), the sanction of the award alone might be sufficient to encourage counsel to stay within proper bounds in the course of any additional depositions.

In any event, there was no need to resort to the extraordinary remedy of prohibition. Rule 56.01(c) on protective orders provides a defendant in a criminal case with a full and complete remedy and sufficient protection to insure rights of discovery and protection from improper conduct of counsel or witnesses. A properly framed motion, detailing the excesses complained of and outlining the specific relief, desired, would give the court jurisdiction to hold a hearing and on a sufficient showing to make any order which justice requires, consistent with Supreme Court rules and this opinion, to protect the parties by laying down specific terms and conditions under which additional depositions would be allowed to be taken. Paragraph (4) of relator’s prayer asked for relief which should not be granted and respondent will not be prohibited from making or enforcing an order denying the broad relief sought.

Relator is not without a remedy. The matter of discovery has been left open pending the determination of this proceeding, and relator may file a proper motion under Rule 56.01(c) if so advised upon the basis of which the court may fashion a proper order.

Relator requests that we apply the sanctions provided for in Rule 61.01(g) by awarding costs and attorney’s fees to relator and taxing them against the witnesses or their attorneys or against both witnesses and attorneys. These questions, raised in the motion filed by relator in the circuit court, are live questions which as indicated were taken under submission, and remain to be passed upon by that court. It would be improper for this Court to adjudicate these questions at this time in this proceeding.

Because of the overbreadth of relator’s motion and prayer our preliminary rule was improvidently issued and the preliminary writ of prohibition is quashed.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.


source: Caselaw Access Project

author: BROCK, Justice.

license: Public Domain

text:
    EASTERN AMUSEMENT, INC., et al., Appellants, v. STATE of Tennessee ex rel. Robert H. GAY, District Attorney General, Appellee.
    Supreme Court of Tennessee.
    April 4, 1977.
    Frierson M. Graves, Jr., Memphis, W. Howell Forrester, Pulaski, for appellants.
    William C. Koch, Jr., Asst. Atty. Gen., for appellee; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

BROCK, Justice.

This is an action by the State brought under the 1974 Obscenity Statute, codified as T.C.A., §§ 39-3010 — 39-3022, seeking to enjoin the further exhibition of two motion pictures, designated in the record as “Malte” and “Suburban Swap.” The trial court found the films to be obscene and permanently enjoined their further exhibition. The defendants, all of whom were involved in exhibiting the films in a theatre at Ardmore, Tennessee, have appealed.

All but one of the assignments of error raise issues of law which this Court considered and decided in Taylor v. State ex rel. Kirkpatrick, Tenn., 529 S.W.2d 692 (1975). Accordingly, those assignments are overruled upon the authority of the Taylor decision and for the reasons therein stated.

This civil action was begun by the filing of a complaint which alleged that the films were obscene and were being exhibited to the public. Detailed allegations were made to support the charge of obscenity. The complaint was sworn to by the District Attorney General and was further supported by two affidavits exhibited to it which were made by the City Attorney of Ardmore and an Assistant District Attorney General.

Upon the filing of the complaint, the trial judge forthwith issued an order as authorized by T.C.A., § 39-8019, (1) restraining the defendants from “removing, destroying, deleting, splicing, amending or otherwise altering the matter alleged to be obscene,” and (2) requiring the defendants to appear before the court one week later to show cause, if any they had, why a temporary restraining order should not be issued prohibiting further exhibition of the films until the final hearing. At this point, the court did not in anywise interfere with the continued exhibition of the films; in fact, defendants were not placed under such restraint until the films had been viewed in their entirety by the trial judge and an advisory jury at the final hearing and found to be obscene following a complete adversary hearing.

Defendants responded to the complaint by filing a motion to dismiss upon grounds that the two supporting affidavits were inadequate because (1) affiants had viewed only portions of the films and (2) their statements were “conclusory” and not sufficiently specific. The trial judge overruled this motion, thus furnishing the basis for the only assignment of error which we need to discuss in detail in this opinion.

We hold this assignment to be without merit. The affidavits were completely adequate for the purpose for which they were used. T.C.A., § 39-3019, empowers trial judges to issue such temporary restraining orders, temporary and permanent injunctions and other writs and processes as they deem appropriate “. . . upon application by sworn detailed petition filed by the district attorney general . . . .” This grant of power is modified by the following provision of the same section, to wit:

“However, this section shall not be construed to authorize the issuance of ex parte temporary injunctions preventing further regularly scheduled exhibition of motion picture films by commercial thea-tres, such injunction to issue only upon at least one (1) day’s notice, but the court may immediately forbid the removing, destroying, deleting, splicing, amending or otherwise altering the matter alleged to be obscene.”

The complaint herein constituted a “sworn detailed petition,” and, thus, complies with the statute. There is no constitutional or statutory requirement, as insisted by defendants, that affidavits filed in support of such a petition be made by witnesses who have viewed the subject film in its entirety, nor that such affidavits contain detailed descriptions of every scene in the film. No final determination of obscenity is based upon such affidavits and petition alone; neither is further exhibition of the film restrained upon such evidence alone. The petition and supporting affidavits merely furnish the basis for (1) issuing a temporary restraining order preserving the films, (2) setting a show cause hearing to determine whether a temporary injunction restraining further exhibition is to issue and (3) issuing a summons requiring defendant to answer. For this purpose, the petition and affidavits need only to furnish probable cause for believing that the subject film is legally obscene. The petition and affidavits in this case meet that test. The procedure followed by the trial court scrupulously afforded to defendants their rights in this regard. Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973).

We find no error and, accordingly, affirm the judgment of the trial court. Appellants will pay the costs incurred by this appeal.

COOPER, C. J., and FONES and HARBI-SON, JJ., concur.

HENRY, J., not participating.


author: PER CURIAM.

text:
    Albert William HALE, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    April 6, 1977.
   OPINION AND ORDER OF DISMISSAL

PER CURIAM.

We sustain the motion of the State to dismiss the petition for mootness.

This action, however, is not to be construed as our approval of the procedure followed at the Preliminary Hearing in this case.

Chapter 11, Title 40, Tennessee Code Annotated, has its basic derivation in the Official Code of 1858. Its provisions are clear. The procedure is mandatory. We have held that a preliminary hearing is a critical stage in the prosecution of a criminal action, and have recognized that it is mandated by statute. McKeldin v. State, 516 S.W.2d 82 (Tenn.1974).

We further held in McKeldin that a preliminary hearing is a “pretrial type of arraignment where certain rights may be sacrificed or lost”, 516 S.W.2d at 85, and by quotation from Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), we recognized that it is an adversary proceeding and stressed the value of cross-examination. The usual rules of evidence are applicable to preliminary hearings.

In the context of this case, the matter is now moot. Counsel could have protected his client’s right to a proper preliminary hearing by filing a petition for common law certiorari and supersedeas with one of the judges of the Court of Criminal Appeals, and, if necessary, with a member of this Court.

Let the petition be dismissed.


author: TODD, Judge.

text:
    William T. MILLER et al., Plaintiffs-Appellees, v. CITY OF BRENTWOOD, Tennessee, etc., Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Original Opinion Dec. 3, 1975.
    Certiorari Denied March 18, 1977.
    Abridged Opinion April 1, 1977.

      W. Harold Bigham, Robert D. Kamensh-ine, Nashville, for plaintiffs-appellees.
    Robert H. Jennings, Jr., West, Jennings & Allen, Nashville, for defendant-appellant.
   OPINION

(Abridged for Publication)

TODD, Judge.

The plaintiffs are five married couples. Each couple owns a home in Meadowlake Subdivision. A drainage ditch passes by and/or through the properties of plaintiffs which are in the lower portion of Meadow-lake Subdivision.

The gravamen of this suit is that the City of Brentwood, by granting building permits for construction which reduced the absorption of rainfall into the earth, has authorized and permitted an increase in the “runoff” of rainfall which overtaxes the drainage ditch, thereby causing flooding and damage to plaintiffs’ property.

The defendant, City of Brentwood, has appealed from the decree granting relief to plaintiffs in the following terms:

“. . . the Court finds that Defendant, The City of Brentwood, Tennessee, has caused increased flooding of Plaintiffs’ properties and thereby has created an actionable nuisance, entitling Plaintiffs to appropriate injunctive relief. Accordingly,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
1. That this Court’s restraining order of September 13, 1974, to the degree that it enjoins Defendant from authorizing or issuing any further building permits for projects which will direct increased storm water drainage into the easements flowing past and/or through Plaintiffs’ lots be made permanent.
2. That, within one year of the date of this order, Defendant shall prepare and file with the Court a uniform plan to render Defendant’s storm water drainage system adequate so as to abate the nuisance already created.
3. That this Court retain jurisdiction over this cause.
4. That the Defendant City pay the costs of this cause, for which execution may issue if necessary.”

Defendant’s numerous assignments of error challenge the grounds, both factual and legal, for the relief granted by the Chancellor.

A review of Tennessee authorities fails to disclose any support for the action taken by the Chancellor.

In Dixon v. City of Nashville, 29 Tenn.App. 282, 203 S.W.2d 178 (1946) this Court recognized the right of a property owner to judicial relief from the diversion of surface water from its natural courses by a city, but said:

“[3] It is suggested that the damage was caused by the prevention of absorption due to the paving of Eden Street. While the city has a right to improve its property in any natural and ordinary way so long as there is no substantial change in the flow of surface water and would not be liable for preventing absorption of water by paving its streets alone, we think the actual cause was the deflection and concentration of the water into the drain. The surface of Eden Street, we think, is too small in comparison to the total drainage area above the alley to be a material factor.” 29 Tenn.App., p. 289, 203 S.W.2d, p. 181. (Emphasis supplied)

In Horton v. Mayor and City Council of Nashville, 72 Tenn. (4 Lea.) 39 (1879), a suit was filed to compel the city to enlarge an inadequate sanitary sewer which was overflowing upon plaintiffs’ property. The Chancellor overruled a demurrer. On appeal, the Supreme Court reversed, sustained the demurrer, dismissed and said:

“The main object of the bill is to compel the city, by mandatory decree, on final hearing, to construct a new sewer from complainant’s lot along Broad street to the river, a distance, as shown by the bill, of 1,660 feet. The ground of demurrer assigned to this part of the relief sought is, that the building of a public sewer by a municipal corporation is the exercise of a legislative discretion, which the Court will not control. And to this effect are the authorities.
“No authority has been produced tending to show that a Court of Chancery has ever undertaken to compel a municipal corporation to construct a sewer in a particular direction, or of specified dimensions.Both reason and authority are against the power of the Chancery Court to grant the relief sought.” 72 Tenn., pp. 47, 48.
Horton v. Mayor involved a sanitary sewer already built by the city and not a surface drainage problem as in the present case.

In Chattanooga v. Reid, 103 Tenn. 616, 53 S.W. 937 (1899), there was a suit against the city for damages for failure to abate a nuisance consisting of a pond fed by drainage from a private sewer. A circuit jury awarded damages of $250.00. The Supreme Court reversed for incorrect jury charge and said:

“The nuisance complained of . . was created, and was being kept up by the daily and constant discharge into Grove street alley of garbage and sewage through this sewer on private property, and over which the city had no control. The accumulation of foul water and garbage, in so far as this record discloses, could only have been prevented by building a sewer to carry it off, or by taking appropriate measures to stop Strang and his tenants from turning it into the alley.
“It is a well-settled principle of law that a municipal corporation is not bound to build sewers, and that it is not responsible to a private citizen for failing to provide sewers for any part of its territory. The building of a public sewer by a municipal corporation is the exercise of a legislative discretion, and it is not responsible in a private action for its failure to exercise this discretion.
“. . . The mere fact that a nuisance exists and has occasioned an injury to a third person, does not render the corporation liable therefor, provided the nuisance was not created or maintained by the corporation itself.” 103 Tenn., pp. 621, 624, 53 S.W., pp. 938-939.

In Garland v. Aurin, 103 Tenn. 555, 53 S.W. 940 (1899), an upper landowner sued a lower landowner for obstructing natural drainage of surface water. The Circuit Judge sustained a demurrer. The Supreme Court reversed and said:

“ ‘Land can not be cultivated or enjoyed unless the springs which rise on the surface and the rains that fall thereon be allowed to make their escape through the adjoining and neighboring lands. All lands, therefore, are of necessity burdened with the servitude of receiving and discharging all waters which flow down to them from lands on a higher level,
“We are unable to see any difference in principle between the reciprocal rights and duties of adjacent urban proprietors and those of adjacent rural proprietors; and hence we do not think it wise to apply one rule to city lots and a different rule to agricultural lands, especially in the same State.” 103 Tenn., pp. 559, 560, 562, 53 S.W., p. 941.

In Slatten v. Mitchell, 22 Tenn.App. 547, 124 S.W.2d 310 (1938), the lower landowner sued for relief from the action of the upper landowner in erecting dams or barriers to prevent surface water from entering sinkholes on his property, resulting in excessive drainage upon the lower property. The decree of the Chancellor granting mandamus was reversed on grounds that mandamus will not lie to enforce a continuing, recurrent obligation. However, the Court said:

“As a matter of common knowledge of the unobstructed movement of surface waters, we think it obvious that, but for the aforementioned lateral ditches, a great part of the water falling on the terrain in Hickory Valley north of defendants’ land would be diffused over the surface, in part absorbed by the soil, in part drained off in different courses, and only a small part, as compared with the volume of water ditched into the Hickory Valley Road, would reach that road and flow down the ditches therein to defendants’ land.
“[9] However, the defendants have assumed the burden of permitting, and providing for, the diversion to the sinks on their lands of all the waters that come down Hickory Valley Road to their premises under ordinary normal conditions, such as may be reasonably anticipated, by the gap or opening in the wall, and the ditch therefrom to the sink in their field on the' east side of the road, and by ditching the water from the west side of the road to the sinks in their field on that side.” 22 Tenn.App., pp. 558, 562, 124 S.W.2d, pp. 317, 319. (Emphasis supplied)

In the foregoing quotation, this Court, at least by comment, recognized a part of the problem involved in the present case, i. e., the possible duty of an upper landowner to allow natural absorption (or drainage through sinkholes) of surface water which runs onto or falls as rain upon his land. However, there is no suggestion that a municipality may be forced by the courts to action, either preventative or remedial, against the violation of such duty.

In City of Columbia v. Lentz, 39 Tenn.App. 350, 282 S.W.2d 787 (1955) this Court affirmed a jury verdict and judgment for damages against a city for the overflow of a sanitary sewer built and maintained by the city. However, this case did not involve the natural flow of surface waters as in the present case.

Plaintiffs rely upon the unreported opinion of this Court in the case of Davis v. Homemakers, Inc., (March 26, 1965) wherein the gravamen of the action was that

“defendant so arranged the apartment building that the down-spouts from the gutters direct all the water from its roof onto the paved portion of its parking lot in such a way that it is directed towards, and flows onto, the lot of complainants.
“. . . complainants have suffered from a serious flowage of water . in such concentrated form .
“. . . there are no storm sewers . and . . . there does not appear to be any practical method by which the surface water can be satisfactorily controlled.”
“There is a dispute as to whether the improvement of defendant’s property has resulted in a concentration . . ., it being admitted that the flow has been accelerated.
“. . . there is no absorption anywhere (on defendant’s land) except in a small strip of unpaved land.”
“. . . the tearing up and removal of the paved surface . . . would not accomplish the result sought because .... (if) a surface of dirt or gravel . were put there, . . . the absorption qualities would not be increased enough to avoid the flow . onto (the lot) of complainant . . . ”
“. . . much of the difficulty is . accumulation of water from the roof . . . ”

This Court recognized the reality of the water-absorption problem in Davis, but held that the solution lay in directing the major drainage (from the roof) to a public storm sewer where no injury would result to adjoining property owners. Davis was not at all concerned with the central and determinative question in the present case, i.e., whether there is any liability of a city for damages or injunctive process for failure to restrain property owners from reducing water absorption of their land and/or for failure to provide adequate drainage facilities to drain water from improved property.

Appellant’s brief urges that there is no reason for differentiating between a sanitary sewer system and a surface storm water drainage system. A number of distinctions are readily apparent:

1. Sanitary sewers transmit highly dangerous and offensive waste matter, whereas surface water is “rain from the skies,” which is one of the purest natural forms of water.

2. Sanitary sewers are built by choice of the city, following routes selected by the city, and transmit only such waste matter as the city authorizes to be placed therein by connection permits. Surface drainage (such as that in the present case) is not constructed or routed by the city, but is a natural flow of natural rainfall upon the natural surface of the earth.

3.there is no established law of dominance and subservience between upper and lower landowners as to man-created sewage. There is such established law as to surface water.

Plaintiffs’ principal argument is that,

“Appellant is legally responsible for the flooding nuisance caused by the collective adverse impact of projects which it approved.”

No authority is cited to support this argument, and none has been found by independent research. In spite of the recent propensity of some courts to undertake to supervise and direct the activities of other branches of government, none has yet been so bold as to hold a local government liable for failure to assure that a building project would not injure its neighbors before issuing a permit for construction. To initiate such a rule would make it necessary for every municipality to require indemnity bonds from builders in fantastic amounts before issuing permits for any construction. In short, the cities would thereby be constituted the liability insurers upon each building constructed by permission of the city.

Plaintiffs insist that the defendant assumed responsibility for the efficient func-' tion of the subject drainage ditch by clearing debris therefrom. Plaintiffs cite City of Knoxville v. Hunt, 156 Tenn. 7, 299 S.W. 789 (1927). That case involved the change in grade of a street in which the city had constructed a sewer and the city had expressly approved the change in grade as actually performed by private interests. The case does not support responsibility of a city for a natural drain upon private property.

Plaintiffs’ brief goes into great detail to establish from the record that construction authorized by the defendant did actually produce the excessive surface water which produced plaintiffs’ troubles. Even if it be accepted that part of plaintiffs’ troubles arise from construction authorized by the city, this does not establish plaintiffs’ rights against the city.

In the first place, it is shown that the watershed which drains into the drainage ditch which floods plaintiffs’ property is not entirely within the city limits of defendant city and that other construction outside the city also contributed to plaintiffs’ troubles. It would be most inappropriate to restrain the city from allowing construction within the city only to leave the remainder of the watershed free to develop unrestricted, to produce whatever flooding might result.

Secondly, it seems most inappropriate, by acting through the city, to impair the usefulness of property now vacant in order to protect the property of plaintiffs from the results of construction already completed on other property. This has the effect of transferring plaintiffs’ subservient status to that of upper landowners, that is, reversing the order of subservience as recognized by Tennessee law and of exercising a sort of favoritism in favor of the land already improved and against land not yet improved.

Thirdly, the right of action, if any, for plaintiffs’ injuries is directly against those who caused the problem, i. e., the owners of property which is producing the unnatural amount of surface water. This is what occurred in Davis v. Homemakers, Inc., supra.

Fourthly, no right of action is recognized against a municipality for issuing a permit for construction in accordance with existing laws and regulations. Correspondingly, there is no authority for the Courts to enjoin the issuance of a permit, otherwise lawful, for the reason that its use might result in a private injury.

Finally, there is no authority for compelling a city to construct an artificial drainage sewer; and it would be a radical, dangerous and undemocratic precedent for the Courts to undertake to enter into municipal legislation and administration in any such respect.

It is the conclusion of this Court that no right of action whatever exists against the city in the present circumstances.

This Court is not unaware of the serious problem facing plaintiffs. It may be, although it is not so held at this time, that plaintiffs have a right of action against all property owners, both within and without the city limits, who have contributed to plaintiffs’ flooding problems by changing the absorption characteristics of land above that of plaintiffs. If so, plaintiffs’ remedy is against such property owners and not against the city.

The decree of the Chancellor is reversed, all relief granted therein is vacated, and plaintiffs’ suit is dismissed. The costs of this appeal are adjudged against plaintiffs-appellees.

Reversed and dismissed.

Abridged for publication.

SHRIVER, P. J., and DROWOTA, J., concurs.


text:
    Ex parte Diana Lyn PEPPER et vir.
    No. B-6554.
    Supreme Court of Texas.
    March 30, 1977.
    Ochsner & Baughman, Frank J. Baugh-man, Amarillo, for petitioner.
    Miller, Miller and Russell, Oth Miller, Amarillo, for respondent.
   PER CURIAM.

Application has been made in this Court for writ of error to the court of civil appeals in the above-styled cause, in which that court granted an original writ of habe-as corpus. 544 S.W.2d 836. The Supreme Court does not have jurisdiction to review by writ of error habeas corpus proceedings originated in a court of civil appeals. Woodruff v. Woodruff, 487 S.W.2d 692 (Tex.1972). Nor does the Court have jurisdiction to review the granting of a writ of habeas corpus by any court. Arendt v. Carter, 146 Tex. 590, 210 S.W.2d 976 (1948); McFarland v. Johnson, 27 Tex. 105 (1863). Without regard to the merits of the case as discussed by the court of civil appeals in its opinion, we are compelled to dismiss the application for writ of error for want of jurisdiction.


author: DAVIS, Commissioner. DOUGLAS, Judge, PHILLIPS, Judge.

text:
    Joyce HOBBS, Appellant, v. The STATE of Texas, Appellee.
    No. 52787.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1977.
    Rehearing Granted in Part April 6, 1977.

      P. L. Garrison, Gilmer, for appellant.
    J. Michael Smith, Dist. Atty., Gilmer, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for attempted capital murder. Punishment was assessed by the jury at twenty-eight years.

Appellant contends that the indictment was fatally defective. The indictment alleges in pertinent part:

“That Joyce Hobbs on or about the 25 day of July, A.D. 1975 . . .did then and there attempt knowingly to cause the death of James Leon Hobbs by promising remuneration, to-wit: promising to pay Virgil McCuller $100.00 to kill the said James Leon Hobbs by shooting him with a gun.”

If the charging instrument does not allege that an offense was committed by the accused, it is insufficient in law to support a verdict of guilty and any conviction based thereon is void and may be challenged at any time. American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598.

“Attempt” is defined by V.T.C.A. Penal Code, Sec. 15.01, as follows:

“(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”

“Murder” is defined by V.T.C.A. Penal Code, Sec. 19.02, in pertinent part:

“(a) A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual.”

“Capital murder” is defined by V.T.C.A. Penal Code, Sec. 19.03, in pertinent part:

“(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and: ⅜ ⅜! ⅜ ⅛ # ⅜:
(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration.” [Emphasis supplied.]

In the recent case of Colman v. State, Tex.Cr.App., 542 S.W.2d 144, it was contended that the indictment upon which an attempted capital murder conviction was based was fatally defective. The indictment, in pertinent part, read:

“ . . . then and there, with the specific intent to commit the offense of capital murder, attempt to cause the death of Terry L. Graves, hereinafter called complainant, by shooting the said Terry L. Graves with a pistol and the said complainant was a peace officer then and there acting in the lawful discharge of an official duty to-wit: attempting to arrest said defendant and the said defendant then and there knew the said complainant to be a peace officer.”

This Court held that the indictment was not fatally defective for failure to allege the phrase in Sec. 15.01, supra, “amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” The indictment in Col-man clearly alleged facts which showed “more than mere preparation” in committing the offense of attempted capital murder.

The facts constituting an offense denounced by a statute should be alleged so that the conclusion of law may be arrived at from the facts stated. Posey v. State, 545 S.W.2d 162 (1977), and numerous cases cited therein. Does the instant indictment allege facts which would lead to the legal conclusion that appellant did “more than mere preparation” in committing the offense of attempted capital murder?

The indictment does nothing more than aver a promise to pay a named individual to kill James Leon Hobbs by shooting him with a gun. This factual allegation is not such as would lead to the legal conclusion that the accused committed acts “amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.”

We note that the allegation of “promise to pay” set forth in the indictment does not meet the requirement of Section 19.03(a)(3) that the accused “ . . employs another to commit the murder for remuneration or the promise of remuneration.” The term “employ” is defined to be equivalent to “hiring” or “to engage the services of another, usually by contract or agreement for the performance of the services and the payment of a compensation therefor.” Ballentine’s Law Dictionary (3rd ed. 1969); see Black’s Law Dictionary (4th ed. 1968). The indictment purports to charge appellant with attempted capital murder on the basis of a promise to pay McCuller $100.00 to kill Hobbs, without reciting that appellant hired or employed McCuller or that McCuller accepted the offer of employment or that McCuller did any act demonstrating that he relied on the promise. Thus, the indictment alleges only a unilateral act by appellant, the promise to pay for the killing of Hobbs.

The State points to the fact that appellant had filed a motion to quash the indictment and that the State had advised appellant in open court that it was going to request permission from the court to withdraw its announcement of ready unless appellant withdrew her motion to quash. The appellant then announced to the court that she was willing to waive any defect in the indictment. On the basis of this waiver, the State urges that this Court “can do nothing more than conclude that the appellant was well aware of the charges pending against her.” Notice to appellant of the charges pending against her is not the problem. The deficiency in the instant indictment is a fundamental one, the failure of the charging instrument to allege the offense upon which appellant was convicted. See American Plant Food Corporation v. State, supra. Appellant’s waiver does not cure this fundamental impediment.

The judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the Court.

DOUGLAS, Judge,

dissenting.

The majority reverses the case on the insufficiency of the indictment. Appellant specifically withdrew any objection to the indictment. She knew what she was charged with. The majority holds that that part of the indictment that appellant “did then and there attempt knowingly to cause the death of James Leon Hobbs by promising remuneration, to-wit: promising to pay Virgil McCuller $100.00 to kill the said James Leon Hobbs by shooting him with ⅛ gun” is not sufficient because it does not show that appellant hired McCuller or that McCuller accepted the offer or employment or that McCuller did any act demonstrating that he relied on the promise.

It should be noted that the indictment alleges a “promising to pay.” It does not allege an offer to pay.

This allegation is sufficient, especially absent an exception or motion to set aside the indictment, to show that there was an agreement by appellant’s offering to pay to have Leon Hobbs killed.

There was no more that appellant had to do to attempt to get Leon Hobbs killed. The balance was up to McCuller.

The indictment sufficiently alleges an attempt on the part of appellant to have the murder committed.

The judgment should be affirmed.

OPINION ON STATE’S MOTION FOR REHEARING

PHILLIPS, Judge.

The State’s motion for rehearing asserts the indictment is not fundamentally defective because it alleges the offense of criminal solicitation, which is defined in V.C. T.A., Penal Code, Sec. 15.03 as follows:

“(a) A person commits an offense if, with intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission.”

Although not a model pleading, the instant indictment substantially alleges all of the elements of criminal solicitation. The instant indictment alleges appellant “did then and there attempt knowingly to cause the death of James Leon Hobbs”, and this is sufficient to allege appellant acted with intent that a felony be committed. The indictment further alleges appellant promised to pay $100.00 to another “to kill the said James Leon Hobbs by shooting him with a gun”, and this is sufficient to allege that appellant requested, commanded or attempted to induce another to engage in specific conduct that would constitute the intended felony.

In our opinion on original submission we noted that the indictment does not allege attempted capital murder under V.C. T.A., Penal Code, Sec. 19.03(a)(3), because the indictment alleges only a unilateral act by appellant, without reciting that appellant hired or employed another to kill Hobbs. While we adhere to that holding, we note that to determine the intended felony under Sec. 15.03, supra, we must look to the specific conduct appellant requested, including the circumstances surrounding the conduct as appellant believed them to be. The indictment alleges appellant promised remuneration to another to kill Hobbs. Sec. 19.03(a)(3), supra, defines capital murder as the commission of murder for remuneration or the promise of remuneration. Thus, the instant indictment alleges appellant solicited another to commit capital murder.

Although the indictment sufficiently alleges appellant committed criminal solicitation, this theory was not submitted to the jury in the court’s charge.

“The rule is universal and has been emphasized frequently by appellate courts, and in a great number of cases by the appellate courts of this state, that the charge must be limited to the allegations in the indictment. A jury would not be authorized to convict appellant ,of any other offense than that specifically charged, and the court should confine the consideration of the jury in the charge to the allegation contained in the indictment.”

Emerson v. State, 54 Tex.Cr.R. 628, 114 S.W. 834, 835 (1908). See also Bodine v. State, 76 Tex.Cr.R. 314, 174 S.W. 609 (1915); Price v. State, 81 Tex.Cr.R. 208, 194 S.W. 827 (1917); Booker v. State, Tex.Cr.App., 523 S.W.2d 413 and cases cited therein.

The charge authorized the jury to convict appellant of attempted capital murder or attempted murder, theories not charged in the indictment. See Ross v. State, Tex.Cr.App., 487 S.W.2d 744; Windham v. State, Tex.Cr.App., 530 S.W.2d 111; Williams v. State, Tex.Cr.App., 535 S.W.2d 352.

The foregoing errors in the court’s charge were fundamental and calculated to injure the rights of the appellant to the extent she was denied a fair and impartial trial. See Art. 36.19, V.A.C.C.P.

The State’s motion for rehearing is granted in part, and thé judgment is reversed and the cause remanded.

      . See V.T.C.A. Penal Code, Sec. 19.03(a)(1).

      . See New Texas Penal Code Forms, Sec. 1903C (W. Morrison and T. Blackwell); 2 Branch’s Annotated Penal Statutes, Sec. 1903 (3rd ed. 1974).


author: DALLY, Commissioner.

text:
    Kenneth Fred CLARK, Appellant, v. The STATE of Texas, Appellee.
    No. 53268.
    Court of Criminal Appeals of Texas.
    March 16, 1977.
    Rehearing Denied April 13, 1977.
    Steven G. Condos, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., W. T. West-moreland, Jr., Bill Booth and Brady Sparks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., 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 indecency with a child; the punishment is imprisonment for 7 years.

Appellant contends that the court erred in admitting into evidence over objection several magazines containing photographs of nude boys because they were obtained as a result of an alleged unlawful search and seizure.

On February 11, 1975, Dallas Police Officers Holmes, McDonald, and Garis went to appellant’s residence to arrest him pursuant to an arrest warrant charging him with the offense of indecency with a child. The officers knocked on appellant’s door and he invited them into his apartment. Officer McDonald informed the appellant that he had a warrant for his arrest. The appellant was dressed in trousers and a tee-shirt and asked the officers if he could get a shirt and jacket out of his closet. Officer Holmes responded: “Yes, I’ll take you back to get it,” then he followed the appellant back to his bedroom. While Holmes was in the bedroom with appellant he observed a box in plain view beside the closet. The box was open, and on and around the box there were several magazines which depicted nude boys. Several other items and photographs were seized along with the magazines; however, only the magazines were admitted into evidence by the trial court.

Appellant’s version of the events relating to the seizure of the magazines was different from that of the police officers. At the hearing on his motion to suppress, appellant testified that when the police officers arrived at his apartment he was wearing a shirt which was unbuttoned. When the officers informed him that they had a warrant for his arrest he said: “Well, let me get my jacket.” He said he did not invite the officers into his apartment. Appellant then put on his jacket which he says was on the back of a chair in the living room. He was then handcuffed and told to sit on the divan. The officers went directly to the bedroom like “they knew what they were looking for.” Appellant said that the magazines were inside the box which was closed; thus, the officers could not have observed them in open view.

The admissibility of the evidence depended upon a question of fact; the trial judge was the sole judge of the weight and credibility of the witnesses. As the fact finder he may choose to believe or disbelieve any or all of the witnesses’ testimony. Adams v. State, 537 S.W.2d 746 (Tex.Cr.App.1976); Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1973).

Appellant contends that the magazines were seized illegally because the officers intended to seize the materials and did not obtain a search warrant. He says there are no exigent circumstances showing why the officers could not have obtained a search warrant. Appellant also argues that the search was not valid as being incident to a lawful arrest because the search was not confined to the area in which he was arrested.

Under both the United States Constitution and the Texas Constitution, the failure to obtain a search warrant is excusable where the search is incident to a lawful arrest. Chime1 v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Nichols v. State, 501 S.W.2d 107 (Tex.Cr.App.1973); Simpson v. State, 486 S.W.2d 807 (Tex.Cr.App.1972); Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975). A police officer may seize what he sees in plain sight or open view if he is lawfully where he is. Jackson v. State, 449 S.W.2d 279 (Tex.Cr.App.1970); Simpson v. State, supra; Sutton v. State, 519 S.W.2d 422 (Tex.Cr.App.1975); Craig v. State, 533 S.W.2d 827 (Tex.Cr.App.1976).

Appellant does not challenge the existence or validity of the warrant for his arrest. He contends that the scope of the search incident to his arrest exceeded the limitation of Chimel v. California, supra. The record reflects that appellant was arrested in February and the weather was cold. Officer Holmes stated that any time he arrests a felon he is going to stay with him in order to prevent the person from escaping or trying to hurt someone. Holmes stated that he was going to follow the appellant into the bedroom when he got his shirt and jacket, whether the appellant invited him or not, because appellant was under arrest.

Officer Holmes had a right to be in appellant’s bedroom when he observed the magazines in open view. The magazines were not seized as the result of a routine search of the area beyond appellant’s reach. We hold that the magazines were not obtained as a result of an illegal search; thus, the court did not err in admitting them into evidence. Nichols v. State, supra; Simpson v. State, supra.

We have examined appellant’s pro se brief and find that all of his complaints are without merit and are accordingly overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . In the first two paragraphs of his sole ground of error appellant says that he is relying upon the rule of law that the suppression of evidence by the prosecution violates due process. He does not point out what evidence was suppressed and we cannot find even a hint that any evidence favorable to appellant was suppressed by the State.


author: DOUGLAS, Judge.

text:
    Raymond DRAGER, Appellant, v. The STATE of Texas, Appellee.
    No. 52073.
    Court of Criminal Appeals of Texas.
    April 6, 1977.

      Thomas W. Kendrick, Amarillo, for appellant.
    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 damaging a tractor and destroying a fence used in the production of cattle as denounced by V.T.C.A., Penal Code, Sections 28.03(a)(1) and 28.03(b)(4)(D). Punishment was assessed by the court at four years. The sufficiency of the evidence to support the conviction is challenged.

Joe Allen testified that on July 27, 1974, he owned a model 9600 Ford tractor which was located on his farm about ten miles West of Friona. He was notified that his tractor with the engine running and the wheels spinning was up against a barn. He got to the site around 7:00 p. m. The tractor had a 21-foot offset disc plow attached to it. He had given no one consent to move the tractor and plow. That morning his son Danny Allen had been plowing and left for lunch but got busy with other duties and did not return. The tractor was easy to trail. It had been driven a half-mile across his farm, through á fence, into a deep ditch, across another man’s land, across the highway and through a barbed wire fence several times. There was an old barn on the property across the road from his farm. The tractor had made a wide circle around the barn and went through the barbed wire fence on both sides of the highway and back across the highway and headed toward the barn. It appeared that the tractor had been “hung” on a telephone pole and that someone had lifted up the plow and backed it and maneuvered it around the pole; that the plow was let down again and was driven directly toward the barn and went through another barbed wire fence and hit the barn. It set there long enough to spin and leave deep ruts. The tracks showed that the tractor had been rammed up against the barn again and left running. There were two sets of holes where the wheels had been spinning. He testified that it would have been impossible for the damage to have been done without someone operating the tractor. He testified that the cost of the tires that were ruined was $635 and that the repair to the front of the tractor cost $372.

Danny Allen testified to substantially the same facts as did his father, Joe Allen.

Kelwin King testified that he was fifteen years of age and was pouring water on some new cement at the entrance to his home from the highway to the road which was about one hundred yards from where the tractor was run into the building. His attention was attracted to the tractor which was against the bam by smoke, dirt and dust. After that he saw a blue four-wheel drive pickup truck leaving the barn “pretty fast.” It was one of the Dragers’ pickups because he had seen it at the Dragers. He then went to where the tractor was against the building and radioed his mother from his pickup. His father came over and stopped the tractor. His mother notified the Allens.

Mrs. D. T. King testified that she was assisting her daughter load a vehicle to return to school in Lubbock. Her daughter called her attention to someone driving a tractor going down the highway followed closely by someone driving a blue Ford pickup about a half-mile from their house. She had first thought that it was the pickup belonging to the Allens but when Allen came to the house to use the telephone she immediately recognized it as not being the same pickup that had been following the Allens’ tractor. She related that someone was driving the tractor and someone was driving the pickup but she could not tell the color of the hair of either driver.

Appellant, who was twenty-six years of age, testified that he saw the tractor without a driver as it crossed the road and saw the plow when it hooked onto the telephone post and the wheels were spinning; he “thought he would try to be a good neighbor and try to go out and try to stop the tractor.” When the plow became unhooked from the telephone post and headed for the barn, he “bailed out” just before it got to the barn.

On cross-examination appellant testified that he grew up on a farm and he knew how to operate tractors and he tried to turn the switch off but it would not stop. He knew that one could push in the clutch and take it out of gear but he did not try to do that because he did not want to stay around that long; that he did not stand there and watch the tractor go into the barn because he was on probation for being with another person and having something to do with the tractor that was torn up in Friona and that he had torn up Cotton Renner’s tractor by turning it loose. When he got out of the tractor cab, it was headed straight for the barn and he got in his pickup that was parked about where Kelwin King said it was parked and left in a hurry.

He denied Mrs. King’s testimony that the tractor was being driven down the road and being followed by a pickup truck. He testified that he was by himself. A beer can or bottle was found in the cab of the tractor that had not been there when Danny Allen left it in the field.

In passing on the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict. The defendant’s evidence, as well as the State’s evidence in the case in chief, may be considered in passing on the sufficiency question.

In Davis v. State, 440 S.W.2d 291 (Tex.Cr.App.1969), this Court wrote:

“This court looks to all of the evidence in the case, not just that offered by the State to test its sufficiency. 24 Tex. Jur.2d 395, Sec. 725; Wright v. State, Tex.Cr.App., 437 S.W.2d 566 (1969); Lopez v. State, 172 Tex.Cr.R. 317, 356 S.W.2d 674.
“In Bellah v. State, Tex.Cr.App., 415 S.W.2d 418, and in Cross v. State, 100 Tex.Cr.R. 88, 271 S.W. 621, it was held that this court was not required to pass on the contention that the evidence was insufficient at the time the State rested its case in chief.”

In Pope v. State, 505 S.W.2d 556 (Tex.Cr.App.1974), this Court wrote:

“The jury trying a case is authorized to accept or reject any or all the testimony of any witness. A jury may look to all the evidence in the case, that offered by the State as well as that offered by the appellant, in determining the facts and issues in the case. Angle v. State, Tex.Cr.App., 486 S.W.2d 308 (1972) [; Shirley v. State, 501 S.W.2d 635, 637 (Tex.Cr.App.1973); Davis v. State, 440 S.W.2d 291, 293 (Tex.Cr.App.1969)].”

In Shirley v. State, 501 S.W.2d 635 (Tex.Cr.App.1973), this Court wrote:

“As was said in White v. State, 478 S.W.2d 506, 508 (Tex.Cr.App.1972): ‘Considering the evidence in the light most favorable to the jury’s verdict, as this court is required to do, we find it sufficient to support the verdict’.” See, also, Weir v. State, 503 S.W.2d 571, 574 (Tex.Cr.App.1974) and Resendez v. State, 495 S.W.2d 934, 935 (Tex.Cr.App.1973).

In Lombardo v. State, 503 S.W.2d 780 (Tex.Cr.App.1974), the Court held:

“The jury, as sole trier of the facts, resolved the issue against the appellant in exercising their function to accept or reject any or all the testimony and the weight to be given their testimony. Wells v. State, 447 S.W.2d 939, (Tex.Cr.App.1969) [; Angle v. State, 486 S.W.2d 308, 309, (Tex.Cr.App.1972); Bellah v. State, 415 S.W.2d 418, 420, (Tex.Cr.App.1967)].”

In construing the evidence in this case in the light most favorable to the verdict, we find that appellant by his own admission was driving the tractor toward the barn. Joe Allen testified that the tractor had hit the barn and the wheels of the tractor were spinning and making deep tracks and that the tractor had been backed up and had hit the barn again and had made a separate set of tracks and the tractor wheels were spinning and the engine ran until King stopped it.

Appellant admitted driving the pickup truck away from the scene in a hurry because he did not want to be caught there. He was on probation for wrecking another tractor near Friona. Flight is evidence of guilt. Appellant’s admission of driving the tractor just before it hit the barn constitutes direct evidence that he drove the tractor causing it to run into the barn. The jury did not have to believe his explanation that he did not intend to drive the tractor into the barn. When he testified that he did not intentionally drive the tractor into the barn, the proof as initially brought out by him that he was on probation for damaging another tractor was a circumstance showing his intent.

Therefore, the jury, being the judge of the credibility of the witness, had the right to disbelieve appellant’s testimony where he testified that he saw the tractor going down the road without a driver; that he tried to stop it and be a good neighbor.

The language in Cockrell v. State, 135 Tex.Cr.R. 218, 117 S.W.2d 1105 (1938), is applicable. It is as follows:

“ . . . We are not allowed to substitute our judgment for that of the jury, and should not disturb the verdict unless no facts are found to support it.”

Appellant admitted driving the tractor toward the barn. Where an accused admits doing the act but denies any intent the case is not made circumstantial because of such testimony. Barber v. State, 462 S.W.2d 33 (Tex.Cr.App.1971). The court, no doubt as a matter of caution, gave the charge on circumstantial evidence even though it was not required.

Taking all of the incriminating evidence, that of the State as well as that of the defense and his contradicted testimony, and disregarding the self-serving explanation, the evidence is sufficient to support the conviction.

The judgment is affirmed.

ROBERTS, J., concurs in the result.

      . The evidence in this trial was by agreement used in the proceedings to revoke probation he received for damaging the other tractor.


author: GREEN, Commissioner.

text:
    Tom H. PEOPLES aka Tommy Peoples, Appellant, v. The STATE of Texas, Appellee.
    Nos. 52361, 52362.
    Court of Criminal Appeals of Texas.
    April 6, 1977.
    Marvin Miller, San Antonio, for appellant.

      Charles R. Borchers, Dist. Atty., Donato D. Ramos, Stephen A. Whitworth & Sharon S. Trigo, Asst. Dist. Attys., Laredo, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

These appeals are from judgments of conviction for forgery by passing. Punishment was assessed at ten years in each case. We find that the record contains fundamental error which we should review in the interest of justice. See Art. 40.09, Sec. 13, V.A. C.C.P.; Windham v. State, Tex.Cr.App., 530 S.W.2d 111; Harris v. State, Tex.Cr.App., 522 S.W.2d 199; Perez v. State, Tex.Cr.App., 537 S.W.2d 455.

The indictment in Cause No. 52,361 alleged that on or about April 19, 1975 in Webb County, appellant, acting with James Floyd Metzger, Jean Ann Cude, and Michael Lewis Sanchez, “did then and there knowingly and intentionally with intent to defraud and harm another pass as true to Tina Cardenas a writing that had been made so that it purported to be the act of another who did not authorize the act, and which said writing is to the tenor following:”

There follows a copy of a Republic Money Orders, Inc., Issuer, money order No. BJ-33107586 dated April 16, 1975, payable to the order of Ruben A. Salazar in the sum of “175 DLS-CTS,” payable at Tyler Bank and Trust Company, Tyler, Texas, purporting to be signed by Frank Salazar, Sender, and signature ineligible as Treasurer, Republic Money Orders, Inc., and purporting to be endorsed by Ruben A. Salazar, 913 Sun Ave., San Antonio, Texas.

The indictment in No. 52,362 is substantially the same except that the instrument there described is alleged to have been passed to Chalio Garza.

The pertinent provisions of V.T.C.A. Penal Code, Sec. 32.21, Forgery, read:

“(a) For purposes of this section:
“(1) ‘Forge’ means:
“(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
“(i) to be the act of another who did not authorize that act;
* * * * * *
“(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A) of this subdivision; or
* * * * # #
“(b) A person commits an offense if he forges a writing with intent to defraud or harm another.
“(c) Except as provided in Subsections (d) and (e) of this section an offense under this section is a Class A misdemeanor.
“(d) An offense under this section is a felony of the third degree if the writing is or purports to be a will, codicil, deed, deed of trust, mortgage, security instrument, security agreement, credit card, check or similar sight order for payment of money, contract, release, or other commercial instrument.”

It is to be noticed that these indictments were drawn under and allege the offense set forth in Subsection (a)(1)(B) of Sec. 32.-21, supra; i.e., forgery by passing a written instrument made so that it appears to be the act of another who did not authorize that act.

The two cases were tried in a single trial before a jury. In its charge to the jury in each case, the court stated that appellant was charged with forgery by passing, and quoted the provisions of Sec. 32.21, supra, and of Sec. 7.02, Criminal Responsibility for conduct of another, and in attempting to apply the applicable law to the evidence charged as follows:

“Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, Tom H. Peoples, Jr. also known as Tommy Peoples, on or about the 19th day of April, 1975, in the County of Webb, and State of Texas, as alleged in the indictment, did then and there with intent to defraud and harm another, make a writing so that it purports to be the act of another who did not authorize that act, to-wit: the act of Ruben A. Salazar, which said writing is to the tenor following:
(See bank money order made a part of the indictments, supra)
“You will find the defendant guilty of the offense of Forgery by Passing and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict ‘Not Guilty.’ ”

This charge omitted entirely the element of passing the written instrument, a necessary element to the offense charged in the indictments. Clearly, the court attempted to instruct the jury on forgery by making a forged instrument, as provided in Subsection l(A)(i), supra, even though it did tell the jury that if it found beyond a reasonable doubt that appellant made a forged instrument under the circumstances mentioned in its charge, it should find him “guilty of the offense of Forgery by Passing.” Additionally, the court instructed the jury to find the defendant not guilty and acquit if it failed to find beyond a reasonable doubt that he made the forged instrument. Passing does not require that the accused himself made the forged instrument or that it was made by one for whom he is criminally responsible.

A charge is fundamentally defective if it erroneously and only authorizes conviction upon a theory not charged in the indictment. Ross v. State, Tex.Cr.App., 487 S.W.2d 744. In Ross, in reversing the judgment, we stated:

“[1] The charge erroneously authorized the appellant’s conviction under a theory not charged in the indictment. Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 177 (1940); Sullivan v. State, 13 Tex.App. 462 (1883); Weeks v. State, 13 Tex.App. 466 (1883) and Powell v. State, 12 Tex.App. 238 (1882). Even though there was no objection to the charge at the time of trial, the error was fundamental and calculated to injure the rights of the appellant to the extent that he has not had a fair and impartial trial. See Article 36.-19, Vernon’s Ann.C.C.P.; Fennell v. State, 424 S.W.2d 631 (Tex.Cr.App.1968) and Garza v. State, 162 Tex.Cr.R. 655, 288 S.W.2d 785 (1956).”

See also Windham v. State, Tex.Cr.App., 530 S.W.2d 111; Perez v. State, Tex.Cr.App., 537 S.W.2d 455; Mendoza v. State, Tex.Cr.App., 491 S.W.2d 888. Cf. Smith v. State, Tex.Cr.App., 513 S.W.2d 823.

The court failed to apply the law of the offense charged in the indictments to the evidence. Instead, it applied the law of an offense for which appellant was not indicted, thus authorizing conviction on a theory not charged in the indictments. Fundamental error is thus presented, for which the judgments must be reversed and the causes remanded.

Opinion approved by the Court.

      . Named as payee in the allegedly forged written bank money order.


author: ODOM, Judge.

text:
    Charlie R. RUMPH, Appellant, v. The STATE of Texas, Appellee.
    No. 52560.
    Court of Criminal Appeals of Texas.
    April 6, 1977.

      Terry L. Belt, Austin, for appellant.
    Joe Carroll, Dist. Atty., Troy C. Hurley, Asst. Dist. Atty., Belton, 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 aggravated assault on a peace officer. V.T.C.A., Penal Code See. 22.02(a)(2). His punishment, enhanced under V.T.C.A., Penal Code Sec. 12.-42(a), was assessed at fifteen years’ imprisonment and a five thousand dollar fine.

Appellant’s sole ground of error alleges that the indictment and the judgment are defective. Appellant urges that the indictment is defective because it charged him as an habitual criminal but only alleged one prior conviction. See, V.T.C.A., Penal Code Sec. 12.42(d). Appellant also maintains that the judgment is defective because it states he is an habitual criminal. He contends that there is no proof to substantiate this statement in the judgment.

We do not agree with these assertions. First, the indictment alleges one prior conviction for purposes of V.T.C.A., Penal Code Sec. 12.42(a), which provides:

“(a) If it be shown on the trial of a third-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished for a second-degree felony.”

Aggravated assault under Sec. 22.-02(a)(2), supra, is a third-degree felony. The prior conviction was alleged in the indictment in order to enhance punishment to that authorized for a second-degree felony.

The back of the indictment, or the endorsement, states that the offense is:

“Aggravated Assault on a Peace Officer (Habitual Offender).”

The charging part of the indictment, however, makes no allegation that appellant is an habitual offender. The indictment is not defective nor has it prejudiced the appellant.

The judgment and sentence, however, will be reformed. Both recite that the appellant is guilty of the offense of:

“Aggravated Assault on a Peace Officer (Habitual).”

Appellant claims that there is insufficient proof to show that he was an habitual offender. The State, by indictment, sought enhancement of punishment as a repeat offender (Sec. 12.42(a), supra) rather than as an habitual offender (Sec. 12.42(d), supra).

The judgment and sentence reflect that the appellant was punished for a second-degree felony and that the court assessed the penalty. The judgment does not recite that the prior conviction was proved, but entries on the docket sheet demonstrate that the court found that the prior conviction alleged for enhancement was established by the State.

When a defendant’s punishment is enhanced under Sec. 12.42(a), supra, the judgment and sentence should so reflect. The record in the case at bar, however, is sufficient to show that the allegation of appellant’s prior conviction was found to be true. The judgment and sentence are ordered reformed to reflect this finding. See, e. g., Antwine v. State, Tex.Cr.App., 518 S.W.2d 830; Rivas v. State, Tex.Cr.App., 496 S.W.2d 600; Penix v. State, Tex.Cr.App., 488 S.W.2d 86; Glover v. State, Tex.Cr.App., 486 S.W.2d 784.

As reformed, the judgment is affirmed.


author: GREEN, Commissioner. DOUGLAS, Judge,

text:
    Charlie LONG, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 52615.
    Court of Criminal Appeals of Texas.
    April 6, 1977.
    Douglas R. Bergen, Waco, for appellant.
    Martin D. Eichelberger, Dist. Atty., Raymond C. Matkin, Lynn W. Malone, Asst. Dist. Attys., Waco, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of theft of property of the value of $200.00 or over and less than $10,000.00. Punishment was assessed at eight years.

The indictment, in its pertinent part, alleged that appellant, on or about February 6, 1975, in McLennan County:

“ . . . did then and there unlawfully obtain and exercise control over property, to-wit: one Michelin truck tire of the value of $200.00 or more but less than $10,000.00, from Max Taylor without the effective consent of such owner, Max Taylor and with the intent to deprive the said owner of the property, against the peace and dignity of the State.”

Appellant initially complains of the failure of the court to sustain his motion to dismiss the indictment because it does not allege that he obtained the property “knowing it was stolen.”

V.T.C.A. Penal Code, Sec. 31.03, as same was in effect at the time of the offense, provided:

“V.T.C.A. 31.03. Theft
“(a) A person commits an offense if, with intent to deprive the owner of property:
“(1) he obtains the property unlawfully; or
“(2) he exercises control over the property, other than real property, unlawfully.
“(b) Obtaining or exercising control over property is unlawful if:
“(1) the actor obtains or exercises control over the property without the owner’s effective consent; or
“(2) the property is stolen and the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen.”

The indictment alleges each element of theft provided in V.T.C.A., Sec. 31.03, Subsections (a)(1), (a)(2), and (b)(1), tracking the statute in that respect, and the motion to dismiss was properly overruled. See Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266, (Opinion on rehearing delivered Nov. 10, 1976).

However, the court did not submit the case to the jury under the provisions of Sec. 31.03, subsections (a)(l)(b)(l) or (a)(2)(b)(l). Instead, the court instructed the jury on the law as set forth in subsections (a)(l)(b)(2) and (a)(2)(b)(2), supra. Any allegation of either combination of (a)(1) or (a)(2) with (b)(2), supra, purports to allege in substance what formerly, under the prior Penal Code, constituted the offense of receiving stolen property. See Art. 1430, V.A.P.C. We quote as follows from the portion of the charge instructing the jury on the law of the case:

“Our Law provides that a person commits the offense of theft if, with intent to deprive the owner of corporeal personal property, he exercises control over the property of such owner knowing that the property is stolen or that the actor obtained it from another or exercises control over the property obtained by another knowing it was stolen.”

Next, after defining the terms “effective consent,” “deprive,” “possession” and “value,” the court applied the law to the evidence as follows:

“Now, if you find from the evidence beyond a reasonable doubt that on or about the 6th day of February, 1975 in McLen-nan County, Texas the defendant, Charlie Long, Jr., did then and there unlawfully obtain and exercise control over property, to-wit: one Michelin truck tire of the value of $200.00 or more but less than $10,000.00 knowing said property to be stolen and with the intent to deprive the owner, Max Taylor, of said property, then you will find the defendant guilty as charged in the indictment.
“Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant.”

Neither in its statement of the law nor in its application of the law to the evidence does the charge include the necessary element of the form of theft alleged in the indictment of “without the effective consent of the owner.” See and compare Reynolds v. State, Tex.Cr.App., 547 S.W.2d 590 (1976); V.T.C.A. Penal Code, Sec. 31.-03(b)(1), supra.

In our opinion on rehearing in Ex parte Cannon, supra, we stated:

“Our new Penal Code consolidated virtually all theft offenses into a single offense. Section 31.02 of the new Code provides for this consolidation, while subsections (a) and (b) of Section 31.03 define the different ways theft may be committed. A reading of these provisions of Section 31.03 makes it clear that there are four ways to commit theft: (1) by obtaining property without the owner’s effective consent under subsections (a)(1) and (b)(1); (2) by obtaining property from another knowing it to be stolen under subsections (a)(1) and (b)(2); (3) by exercising control over property, other than real property, without the owner’s effective consent under subsections (a)(2) and (b)(1); and (4) by exercising control over property, other than real property, obtained by another, knowing it to be stolen under subsections (a)(2) and (b)(2). “Thus, the offense of theft has four different sets of possible elements: .

In a prosecution under subsections (a)(l)(b)(2) of Section 31.03, the necessary elements which must be alleged and proved are (1) a person (2) with intent to deprive the owner of property (3) obtains the property (4) which is stolen property (5) from another (6) knowing it was stolen. The necessary elements under subsection (a)(2)(b)(2) are the same except that (3) would be that he exercises control over the property, other than real property. Ex parte Cannon, supra. There we stated further:

“Nor did the indictment allege that the property was stolen or that the appellant knew the property was stolen. Moreover, the indictment did not allege either that the appellant obtained the property from another or that he exercised control over the property, other than real property, obtained by another. These are essential elements of theft under subsection (b)(2), see Pool v. State, 528 S.W.2d 255 (Tex.Cr.App.1975), and are required to be alleged in an indictment alleging either of the methods of committing theft under this subsection. Art. 21.03, supra.” (Emphasis added)

In the instant case, essential elements (4), (5) and (6), supra, of the offense of theft under subsection (b)(2), supra, were not alleged in the indictment, although only the form of theft provided in that subsection was submitted to the jury. Thus, the theory of theft of which the jury was authorized to convict appellant was not supported by this indictment.

It is well established that upon a trial by jury, if the charge authorizes conviction upon a theory not supported by the indictment, fundamental error is committed. See Ross v. State, 487 S.W.2d 744 and cases cited; Dowden v. State, 537 S.W.2d 5. We quote as follows from Ross v. State, supra :

“The jury was not charged on the theory of burglary alleged in the indictment, that it was committed by force, threats, fraud, or breaking and entering, but only authorized the appellant’s conviction if the appellant ‘did then and there enter a house then and there occupied and controlled by M. J. Sparks at night or in any manner enter a house then and there occupied and controlled by M. J. Sparks at any time, either day or night, and remain concealed therein with the intent in either case, then and there to fraudulently take therefrom corporeal personal property therein being and then belonging to the said M. J. Sparks . . . ’
“[1] The charge erroneously authorized the appellant’s conviction under a theory not charged in the indictment. (Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 177 (1940); Sullivan v. State, 13 Tex.App. 462 (1883); Weeks v. State, 13 Tex.App. 466 (1883) and Powell v. State, 12 Tex.App. 238 (1882). Even though there was no objection to the charge at the time of trial, the error was fundamental and calculated to injure the rights of the appellant to the extent that he has not had a fair and impartial trial. See Article 36.-19, Vernon’s Ann.C.C.P.; Fennell v. State, 424 S.W.2d 631 (Tex.Cr.App.1968) and Garza v. State, 162 Tex.Cr.R. 655, 288 S.W.2d 785 (1956).” (Emphasis added)

In Dowden v. State, supra, we stated:

“It is fundamental that a conviction for an offense cannot stand unless the charge authorized the jury to find a defendant guilty only for conduct constituting that offense (Venzor v. State, 162 Tex.Cr.R. 175, 283 S.W.2d 397); the indictment alleged such conduct (Venzor v. State, supra; 31 Tex.Jur.2d, Sec. 69 at 596); and the evidence at trial showed such conduct (Powell v. State, 60 Tex.Cr.R. 201, 131 S.W. 590; 5 Branch’s Ann.P.C. (2d ed.), Sec. 2603 at 32). In the instant case none of these requirements of due process of law were met because the trial court authorized the jury to find appellant guilty upon a set of circumstances that could not constitute the offense charged. Accordingly, the judgment must be reversed.” (Emphasis added).

In the instant case, the court submitted the case to the jury on a theory not charged in the indictment.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

DOUGLAS, Judge,

dissenting.

The majority reverses this conviction on what it considers an error in the court’s charge to the jury when there has been no contention that there was such an error.

V.T.C.A., Penal Code, Section 31.03, Theft, provides, in pertinent part, as follows:

“(a) A person commits an offense if, with intent to deprive the owner of property:
U * * *
“(2) he exercises control over the property, other than real property, unlawfully.”

The court, in this case, instructed the jury under the terms of that part of the theft statute just cited when he instructed the jury as follows:

“Now, if you find from the evidence beyond a reasonable doubt that on or about the 6th day of February, 1975 in McLennan County, Texas the defendant, Charlie Long, Jr., did then and there unlawfully obtain and exercise control over property, to-wit: one Michelin truck tire of the value of $200.00 or more but less than $10,000.00 knowing said property to be stolen and with the intent to deprive the owner, Max Taylor, of said property, then you will find the defendant guilty as charged in the indictment.
“Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant.”

In this case appellant was charged correctly in the indictment. The court charged that part of the statute and this is all that should be required. Under the terms of the statute it makes no difference who stole the property. All it requires is that the accused unlawfully exercised control of stolen property.

The majority should realize by now that Article 1430 of the former penal code has been repealed and should limit its holding to the present penal code.

V.T.C.A., Penal Code, Section 31.02, Consolidation of Theft Offenses, is as follows:

“Theft as defined in Section 31.03 of this code constitutes a single offense superseding the separate offenses previously known as theft, theft by false pretext, conversion by a bailee, theft from the person, shoplifting, acquisition of property by threat, swindling, swindling by worthless check, embezzlement, extortion, receiving or concealing embezzled property, and receiving or concealing stolen property.”

The practice commentary is as follows:

“No part of the old Penal Code produced more confusion, more appellate litigation, and more reversals on technicalities unrelated to the actor’s guilt or innocence than the multitude of offenses proscribing criminal acquisitions of another’s property. Although the theft offenses attempted to separate guilty from innocent acquisitions, they did so clumsily, and their effect all too often was to embroil the courts in nice questions about the appropriateness of conviction under one offense label as opposed to another. The distinctions between the various offenses were unnecessary for establishing the point at which acquisitive conduct becomes criminal — that can be done generally — and they provided no rational basis for penalty determinations or for the provision of defenses; they did, however, place unnecessary obstacles before the conviction of the guilty.
“For this reason in the new code most of the theft offenses are consolidated into a single, comprehensive offense aimed at the harm that accompanies the acquisitive conduct, however, and acquisition is accomplished. Section 31.02 serves merely to explain and emphasize the intent of the theft section: theft is a single offense with a uniform culpable mental state, a uniform result, uniform penalties, and uniform defenses, all of which focus on culpability rather than, as under prior law, whether the state is pursuing the defendant under the appropriate offense label." (Emphasis added)

We have a new penal code. The trial judge followed it in this case. There is no more appropriate time than now to disregard the former penal code especially when it does not apply. Just because something has been done for over a hundred years does not mean that it should be followed when the statute upon which it was based has been repealed.

The judgment should be affirmed.


text:
    Arthur JACKSON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 52616.
    Court of Criminal Appeals of Texas.
    April 6, 1977.
    Ray A. Bass, III, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Joe D. Anderson, Asst. Dist. Attys., Houston, 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 assault with intent to rob, a violation of the former Penal Code. His punishment, enhanced pursuant to Art. 62 of the former Penal Code, was assessed at ten years’ confinement.

The first three grounds of error urge that the trial court committed error in overruling appellant’s objection to certain testimony elicited from the complaining witness, Otis Milligan. The appellant objected to this testimony, requested the court to instruct the jury to disregard Milligan’s statement, and moved for a mistrial. The trial court denied each.

The complained of testimony came during Milligan’s description of a conversation occurring immediately prior to the commission of the offense. Milligan testified on direct examination that the appellant and another person entered the store where he worked and asked him about a job opening. The following dialogue then occurred between the prosecutor and Milligan:

“Q. Did either one of the people there at that time this defendant or the shorter fellow either one appeared to be doing most of the talking?
“A. No, sir, the only statement the thing the smaller gentlemen asked about was would ever being picked up on a felony hurt his chances for a job.”

Appellant claims this testimony constitutes reversible error because it injected an extraneous offense into evidence which tended to prejudice the jury. He asserts that the response shows that he is a criminal in general because it demonstrates that he associates with persons that have been arrested or convicted for a felony offense. We do not agree.

Milligan’s testimony describes the conduct of the appellant and his co-actor shortly before the offense occurred. The testimony shows “the context in which the criminal act occurred.” Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97, at 100. It was not error to admit this statement.

We also observe that Milligan’s response, when viewed in the light of his entire testimony, did not inject an extraneous offense into evidence. The co-actor, it seems, responded to Milligan’s further questioning on this subject in such a manner that no employment problem was presented. This would suggest that the co-actor told Milli-gan that he had not been convicted for a felony offense. The first three grounds of error are overruled.

The fourth ground of error asserts the trial court erred in denying the motion to quash the enhancement paragraph of the indictment. Appellant argues that a prior conviction for burglary with intent to commit theft cannot be used to enhance punishment for assault with intent to rob under Article 62 of the former Penal Code. That article provides:

“If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.”

Appellant argues that the primary offense and prior offense alleged in the indictment are not sufficiently similar in nature to support the enhancement of his penalty under Art. 62, supra. He urges that burglary with intent to commit theft is a crime against property while assault with intent to rob is a crime against the person. He also states that these two offenses have but one single element of sameness and, therefore, are not the same or of the same nature. Jones v. State, Tex.Cr.App., 470 S.W.2d 874; Warner v. State, 118 Tex.Cr.R. 351, 42 S.W.2d 616.

We disagree. The primary purpose or motivation behind appellant’s action during his commission of the offenses of burglary with intent to commit theft and assault with intent to rob was to unlawfully deprive a person or persons of their property. We have previously held that robbery and theft are like offenses and can be used for enhancement purposes under Art. 62, supra. See, Brown v. State, Tex.Cr.App., 535 S.W.2d 640; Horne v. State, Tex.Cr.App., 508 S.W.2d 643.

We have also concluded that the offenses of felony theft and forgery, Jones v. State, Tex.Cr.App., 470 S.W.2d 874; burglary with intent to commit theft and passing as true a forged instrument, Sharpe v. State, Tex.Cr.App., 490 S.W.2d 834; and robbery by assault and forgery, King v. State, Tex.Cr.App., 519 S.W.2d 651, are sufficiently similar to support utilization of the enhancement provisions provided by Art. 62, supra. We conclude that the offenses of assault with intent to rob and burglary with intent to commit theft are of like character. The fourth ground of error is overruled.

Ground of error number five states that the court committed fundamental error when it failed to require the State to disclose evidence which was favorable and material to appellant’s defense. Appellant alleges that the State possessed material tending to impeach the credibility of the complaining witness, Otis Milligan. Specifically, he urges that the State knew that Milligan had misidentified a suspect at a line-up conducted five days after the commission of the offense and failed to disclose this information.

The record reflects that Milligan identified the appellant in a hospital shortly after the offense. Several days later, he identified another person as the second party to the crime. On cross-examination, Milligan stated that he did not know whether an indictment was returned against the individual he identified at the line-up. He also testified that he had not been subpoenaed to testify in regard to the second person he identified at the line-up. He did not, however, testify to the misidentification of anyone.

Appellant urges that evidence of this “misidentification” was contained in the prosecutor’s file. The court refused to allow the appellant to inspect this file. The judge did, however, include this file in the record for our review.

It appears, after a review of the record and the police offense report, that no favorable or material evidence was withheld. There is no proof that the witness misidentified anyone connected with the offense. No harm or prejudice is shown. The fifth ground of error is overruled.

The final two grounds of error complain of the trial court’s denial of appellant’s pre-trial and trial discovery motions which requested the production of a portion of the police offense report. Appellant contends that the offense report contained either a verbatim account or a summary of the oral statements he made to the police.

Appellant maintains that he was denied effective assistance of counsel and due process by the trial court’s action because he and his attorney were prevented from rationally determining whether he should testify in his own behalf. Appellant insists that he could not testify because he did not know whether he would be impeached by an inculpatory statement he had made to the police.

The State argues that the police offense report is not subject to discovery under Art. 39.14, V.A.C.C.P.; Sheldon v. State, Tex.Cr.App., 510 S.W.2d 936. The State also argues that the court determined that the appellant’s counsel had already seen the offense report.

In Holloway v. State, Tex.Cr.App., 525 S.W.2d 165, at 169, we stated:

“Police reports generally are not subject to pretrial discovery, and the State is not required to exhibit them to the defendant prior to the officer taking the stand, (citations omitted) However, if the facts reflect that the prosecutor actively or negligently suppresses or fails to disclose evidence which may exonerate the accused or be of material importance to the defense, reversible error is committed.”

We conclude that the trial court’s action had no effect on appellant’s decision not to testify in his own behalf. If his oral statements were admissible, they could have been admitted whether he testified vel non. If, on the other hand, the statements were inadmissible because they did not fulfill the requirements of Art. 38.22, Y.A.C.C.P., they could not be used to impeach the appellant. McBride v. State, Tex.Cr.App., 506 S.W.2d 887; Hugley v. State, Tex.Cr.App., 505 S.W.2d 914.

Even if the trial court’s action did have an effect on appellant’s decision not to enter testimony, such error was harmless beyond a reasonable doubt. Appellant was identified by an eyewitness to the offense shortly after it occurred. Other evidence conclusively established the guilt of the appellant. In short, the evidence connecting appellant with the crime is overwhelming. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

The description of appellant’s oral statements in the offense report were not material to the defense. The final grounds of error are overruled.

The judgment is affirmed.

      . Appellant filed a pre-trial motion for discovery of all favorable material in the possession of the prosecutor, including any evidence which tended to affect the credibility of any State witness. The court denied this motion.

      . The offense report contains a summary of the appellant’s oral statements to the police. He told the police that he was a suspect but that this was the only robbery in which he was involved. He also gave the names of two other participants in the robbery: the person who accompanied him into the store, and the driver of the getaway car.

      . It can be said that the State waived their right to prevent discovery of the police report since, as determined by the trial court, the appellant’s counsel inspected the document approximately one year prior to trial. Appellant, however, maintained throughout the trial that he did not inspect the offense report. We also observe that the State did not attempt to introduce any oral statements. Appellant has failed to establish how he was harmed by the court’s determination.