author: STEAKLEY, Justice.

text:
    T. L. JAMES AND COMPANY, INC. and R. W. McKinney, Petitioners, v. Forest STATHAM, Respondent.
    No. B-6726.
    Supreme Court of Texas.
    Nov. 23, 1977.
    Rehearing Denied Dec. 14, 1977.

      Sheehy, Lovelace & Mayfield, Dan E. Mayfield, Waco, for petitioners.
    Beard & Kultgen, David B. Kultgen, Waco, for respondent.
   STEAKLEY, Justice.

In July, 1975, Forest Statham, our Respondent, sued South Texas Independent Milk Producers Association (STIMPA), and its employee, Anastacio Hinojosa, for damages in the sum of $300,000.00. Statham alleged that his damages were caused by the negligence of Hinojosa when the STIM-PA truck he was driving struck Statham’s pickup from the rear on March 10, 1975, while he was stopped with other traffic at a highway construction site. Our Petitioners, T. L. James & Company, Inc. and R. W. McKinney, were conducting the highway construction activity.

Statham’s suit against STIMPA and Hi-nojosa was tried to a jury in January, 1976. The jury found that Hinojosa was negligent, which was the proximate cause of Statham’s damages, in his lookout, in the application of his brakes, and in failing to maintain an assured clear distance. The jury also found that the sum of $8,000.00 “would fairly and reasonably compensate Forest Statham for his injuries” resulting “from the occurrence in question”; that the “reasonable expenses . . . for necessary medical and hospital care and expense received by Forest Statham in the past for treatment of his injuries” resulting from the occurrence in question were in the sum of $7,000.00; and that his future medical expenses would be “none.”

Under date of January 22, 1976, judgment was rendered on the jury verdict in pertinent part as follows:

“It is therefore ORDERED, ADJUDGED AND DECREED that Plaintiff, Forest Statham, have judgment against Defendants, South Texas Independent Milk Producers Association and Anastacio Hinojosa in the amount of FIFTEEN THOUSAND AND NO/100 ($15,000.00) DOLLARS, plus interest on that amount from date at the rate of 6% per annum, plus costs.
“It is therefore ORDERED, ADJUDGED AND DECREED that Defendants pay into the Registry of this Court the sum of FIFTEEN THOUSAND AND NO/100 ($15,000.00) DOLLARS, which sum is to be paid Plaintiff upon the application of Plaintiff for such payment.
“And it appearing to the Court that simultaneous with the entry of this judgment, the Defendants have paid the total amount of the judgment into the Registry of the Court, and have paid the costs of Court.
“It is, therefore, ORDERED, ADJUDGED AND DECREED that no execution shall issue hereon.”

There was no appeal from this judgment. It is to be noted that the manner of satisfaction of the judgment was decreed to be by payment into the registry of the court. Attached to the Agreed Statement of Facts upon which the case at hand was submitted is a certificate of the Clerk of the trial court that his office has “accepted the total amount of $15,000.00, pursuant to said judgment, and the said $15,000.00 so accepted by me is and has been continuously maintained in the Registry of the 170th District Court from January 22, 1976 through date hereof, which sum, pursuant to said judgment, will be paid to the Plaintiff therein, Forest Statham, upon the application of Plaintiff Forest Statham for such payment.” Statham has not applied for the money.

Under date of March 8, 1976, Statham filed the instant suit against the highway contractors, James and McKinney, our Petitioners. This suit was based upon the same occurrence as the prior suit of Statham against STIMPA, et al. Statham alleged in this second suit that the collision between Statham’s pickup and the STIMPA truck “was proximately caused by the negligence of defendants’ employees and servants, acting in the scope of their employment, in failing to station a flagman on Highway 84 in such position as to effectively warn vehicles approaching the back of said line of traffic of the stopped traffic on the highway in front of them. The collision has resulted in severe permanent physical injuries to plaintiff and pain, suffering and mental anguish to plaintiff’s damage in the sum of $300,000.00.”

James and McKinney filed a plea in bar predicated on the prior suit and final judgment, saying “that Forest Statham has had his day in court, he has had a determination of all of his damages and injuries resulting from the occurrence in question of March 10,1975.” The plea in bar was sustained by the trial court and a take nothing judgment was rendered in favor of James-McKinney. On appeal by Statham the Court of Civil Appeals reversed the judgment of the trial court and remanded the cause for trial. Tex.Civ.App., 548 S.W.2d 100. That court ruled that the payment by STIMPA, et al., of $15,000.00 into the registry of the court as decreed did not bar Statham’s subsequent suit against James-McKinney, citing McMillen v. Klingensmith, 467 S.W.2d 193 (Tex.1971), and the enactment by the Legislature of Article 2212a, Tex.Rev.Civ.Stat. Ann. which became effective September 1, 1973.

It was Statham’s position in reply to the application for writ of error that the judgment against STIMPA et al., is unsatisfied because the payment into the registry of the court was voluntary and without his consent; and that he is entitled to proceed separately against STIMPA, et al., and James-McKinney and then elect which judgment he desires to be satisfied. Stat-ham further argues that under McMillen v. Klingensmith, supra, and Article 2212a, sometimes called the Comparative Negligence Amendment, it can no longer be assumed that damages awarded against one joint tortfeasor represent the total injury which the plaintiff has sustained. Statham further says that the payment into the registry of the court by STIMPA, et al., of the sum of $15,000.00 was “in settlement” of the earlier judgment under Article 2212a(2)(d), which reads:

“If an alleged joint tortfeasor pays an amount to a claimant in settlement, but is never joined as a party defendant, . each defendant is entitled to deduct from the amount for which he is liable to the claimant a percentage of the amount of the settlement based on the relationship the defendant’s own negligence bears to the total negligence of all defendants.” (Emphasis added).

The statute is not applicable under its express terms. The payment by STIMPA, et al, of the full amount of damage to Statham as found by the jury, and in the manner decreed by the trial court, was not a payment “in settlement” by an alleged tortfeasor. Moreover, the payment was by a tortfeasor, who had been “joined as a party defendant.”

Statham has tacitly recognized the inapplicability of the statute in his Supplemental Brief filed after oral submission. He there presents the argument that the Court should do away with what he terms the “one satisfaction” rule by adopting a rule of decision that payment of a judgment by a joint tortfeasor has the same results as the payment of a settlement under the statute. From this, Statham continues by saying that James-McKinney would have the right to join STIMPA, et al., in the present suit in the trial of which the jury could determine the percentage of his negligence, that of STIMPA, et al, and that of James-McKinney. Or, on the other hand, Statham says that James-McKinney could in the present suit elect to proceed to trial without joining STIMPA, et al., in which event the amount of damages which James-McKinney could be required to pay would be the amount of Statham’s damages assessed by the jury in this case, less the sum of $15,-000.00 paid by STIMPA, et al., in satisfaction of the first judgment.

These and other considerations may influence the rules of the future governing the effect of successive suits against joint tortfeasors where the judgment in the first suit is unsatisfied. This must wait for another day. In the case now before us the judgment in Statham’s first suit against STIMPA, et al, has been satisfied in the precise manner required by the terms of the judgment decree, i. e., by payment into the registry of the court. We adhere to the rule stated in Bradshaw v. Baylor University, 126 Tex. 99, 84 S.W.2d 703 (1935), and explicitly reaffirmed in McMillen v. Klin-gensmith, 467 S.W.2d 193 (Tex.1971), that a claimant in no event will be entitled to recover more than the amount required for full satisfaction of his damages.

Statham could have brought suit jointly against STIMPA, et al, and against James-McKinney. Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W .2d 731 (1952). He did not do so. He elected to seek redress for his damage from STIMPA, et al. The jury found his damage to be $15,000.00. No issue was submitted addressing the question of the comparative negligence of Statham himself, or of STIM-PA, et al., or of any third party. Issue No. 1 inquired of the negligence of Hinojosa, the driver of the STIMPA vehicle in certain particulars, and whether the negligence found was a proximate cause of the occurrence in question. Issue No. 2 inquired what sum of money would fairly and reasonably compensate Statham for his injuries. Issue No. 3 inquired of the reasonable expenses of Statham for necessary medical and hospital care and expenses received by Statham in the past. Issue No. 4 inquired of future medical expenses. These were the only issues submitted and there is no claim that any other issues were requested. The judgment based on the answers of the jury to these issues has been paid in the manner decreed by the trial court. It has been recognized that the court may order money paid into court in satisfaction of its judgment, and may make the Clerk the custodian of it. Texas & Pac. R.R. Co. v. Walker, 93 Tex. 611, 57 S.W. 568 (1900). It is our view that in legal contemplation Statham has been compensated for his injuries and is within the rule of Bradshaw v. Baylor University, supra. It was there said:

“[WJhat right has Bradshaw, who has been fully compensated for his injuries, to recover further damages? The only answer which accords with justice and the authorities is that he has none. The jury found that $6,500, if paid at the date of trial, would compensate him for the injuries sustained. He had theretofore been paid that exact amount. It is a rule of general acceptation that an injured party is entitled to but one satisfaction for the injuries sustained by him. That rule is in no sense modified by the circumstance that more than one wrongdoer contributed to bring about his injuries. There being but one injury, there can, in justice, be but one satisfaction for that injury. The fact that the money was paid to him in consideration for his covenant not to sue the railroad company and for his partial assignment to that company renders it none the less a payment as compensation for his injuries.”

126 Tex. 99, 103-4, 84 S.W.2d 703, 705.

Hunt v. Ziegler, 271 S.W. 936 (Tex.Civ. App.1925), affirmed 280 S.W. 546 (Tex. Comm.App.1926, judgment adopted), cited in Bradshaw, states the controlling rule, and the rationale for its application, as follows:

“It is a universal rule that where there has been a judgment against one of two or more joint tort-feasors, followed by an acceptance of satisfaction, all other tort-feasors are thereby released, and the judgment and satisfaction may be successfully pleaded by them to the maintenance of the same or another suit by the same plaintiff involving the same cause of action; .
“The rule is applied to joint tort-fea-sors because of the fundamental fact that there is but a single injury, in itself and of itself indivisible, and constituting an indivisible cause of action, for which both in law and good conscience there can be but one satisfaction; and when that satisfaction is made by one of the joint tort-feasors, or by any person (Lovejoy v. Murray, 3 Wall. 1, 18 L.Ed. 129), it has the effect of releasing all others who may be jointly, or jointly and severally liable.”

271 S.W. at 938.

Statham cannot free himself from application of these accepted rules by the strategy of not withdrawing the original judgment sum of $15,000.00 while he pursues his suit against James-McKinney. His purpose, of course, was to gain a second trial in the hope that the second fact finder would find his damage to be greater, which larger figure he could elect to accept. But his injury grew out of one occurrence and was a single and indivisible injury. The fact finders have found that payment of the sum of $15,000.00 would fairly and reasonably compensate him for his entire damages. This amount was paid by STIMPA, et aL, in the precise manner decreed by the trial court and we hold such payment constituted a satisfaction of the judgment. The maneuver of Statham in dividing his suits between joint tortfeasors, while understandable and his supporting arguments ingenious, must fail under these circumstances. He is entitled in law and good conscience to but one satisfaction.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

      . Professor Prosser, states that . . [i]t is now held everywhere that an unsatisfied judgment against one tortfeasor does not bar an action against another . . Prosser, Handbook of the Law of Torts, 299-300 (4th ed. 1971).


source: Caselaw Access Project

author: DAVIS, Commissioner. ROBERTS, Judge.

license: Public Domain

text:
    Ex parte Edward J. ROPOLLO.
    No. 53625.
    Court of Criminal Appeals of Texas.
    Jan. 12, 1977.
    Rehearing Denied Jan. 26, 1977.
    On State’s Motion for Rehearing Dec. 14, 1977.

      Edward J. Ropollo, pro se.
    Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

This is a post-conviction writ of habeas corpus brought under the provisions of Art. 11.07, V.A.C.C.P. by the petitioner, an inmate of the Texas Department of Corrections.

Petitioner was convicted in Cause no. 124,664 of the offense of robbery by assault, with two prior convictions alleged for enhancement under Art. 63, V.A.P.C., and assessed a life term in the 179th District Court of Harris County on October 31,1967. Notice of appeal was given but, according to the record, petitioner voluntarily withdrew his notice of appeal in this case.

Petitioner filed an application for writ of habeas corpus with the trial court, alleging, among other things, that the life sentence assessed in this cause was void, since he was not represented by counsel, was indigent, and did not waive counsel during the trial of a prior conviction alleged for enhancement. Petitioner’s application for writ of habeas corpus was denied by the trial court, without a hearing or findings of fact and conclusions of law.

Initially, it should be noted that petitioner’s application for writ of habeas corpus .does “state facts, which if true, would entitle petitioner to relief” inasmuch as he alleges that a void prior conviction was used for enhancement purposes because at the time of the conviction he was without counsel, indigent, and did not waive counsel. See Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Ex parte Swinney, Tex.Cr.App. 499 S.W.2d 101; Ex parte Williams, Tex.Cr.App., 486 S.W.2d 566.

In addition to petitioner’s sworn allegations which have not been controverted by the State, there is attached to petitioner’s application filed with the trial court certain records from the Criminal District Court, Parish of Orleans, in Cause No. 169-027 [one of the cases used for enhancement] reflecting that petitioner and a co-defendant entered pleas of guilty to the offense of armed robbery on April 18, 1961. Punishment was assessed at eight years for both defendants. The records recite that “Fuller [co-defendant] was represented by Mr. Anthony Vesich, Attorney and Ropollo [petitioner] was unrepresented.”

Thus, petitioner’s undisputed allegations are corroborated by the Louisiana trial court records which affirmatively show that petitioner was not represented by counsel. See Burgett v. Texas, supra; Bray v. State, Tex.Cr.App., 531 S.W.2d 633. Petitioner has the further burden to show that he was indigent and did not voluntarily waive his right to counsel during this 1961 Louisiana prior conviction. In the instant case, no effort has been made to controvert appellant’s pleadings that he was indigent. See Ex parte Williams, supra; Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971). Absent an affirmative showing of waiver, the waiver of counsel cannot be presumed from a silent record. See Ex parte Bird, Tex.Cr.App., 457 S.W.2d 559. We find that the record supports petitioner’s contention that the prior conviction was improperly used for enhancement. See Ex parte Stauts, Tex.Cr.App., 482 S.W.2d 638; Ex parte Williams, supra; Ex parte Young, Tex.Cr.App., 479 S.W.2d 45; Ex parte Swinney, supra.

It is the State’s position that if the 1961 Louisiana conviction is void, then the sentence can be reformed under Art. 62, V.A. P.C., and would result in no change in petitioner’s sentence.

Before a prior conviction can be used for enhancement under Art. 62, supra, it must be shown that that prior conviction was a conviction “of the same offense, or of one of the same nature.” In the case at bar, the remaining valid and unchallenged prior conviction used for enhancement in this case was the conviction for the offense of “obtaining narcotic drugs by fraud,” a November 16, 1964, Louisiana conviction in Cause No. 185-447.

It is the State’s position that the Louisiana offense of “obtaining narcotics by fraud” is one of the same nature as robbery by assault, the primary offense, and they rely on King v. State, 519 S.W.2d 651, which holds that forgery was a similar offense to robbery by assault. We disagree.

Initially, it should be noted that at the time of petitioner’s conviction the Texas law incorporated a similar offense to Louisiana’s offense of “obtaining narcotics by fraud” in Art. 725b, Sec. 20(1), V.A.P.C., which stated:

“No person shall obtain or attempt to obtain a narcotic drug ... by fraud, deceit, misrepresentation, or subterfuge . . ..”

It is clear then that the offense of obtaining a narcotic drug by fraud, under Texas law, was classified as a narcotics offense, and a conviction for violation of the Narcotic Drug Act is not available for use to enhance punishment under either Arts. 62 or 63, V.A.P.C. See Heredia v. State, Tex. Cr.App., 468 S.W.2d 833, and cases cited therein. For this reason, the remaining unchallenged Louisiana conviction is unavailable for enhancement under Art. 62, supra.

Since a jury determined petitioner’s punishment in this case, the case cannot be remanded to the trial court for assessment of punishment by the court. It follows that petitioner is entitled to a new trial. See Ex parte Olvera, Tex.Cr.App., 489 S.W.2d 586; cf. Ex parte Hill, Tex.Cr.App., 528 S.W.2d 125.

Petitioner is entitled to the release from further confinement under the conviction attacked and shall be delivered to the Sheriff of Harris County to answer the indictment in Cause No. 124,664.

It is so ordered.

Opinion approved by the Court.

OPINION

ON STATE’S MOTION FOR REHEARING

ROBERTS, Judge.

The petitioner filed his application with the trial court. He alleged, inter alia, that a Louisiana conviction utilized for enhancement purposes was void and that he was therefore entitled to a new trial. The trial judge issued an order denying the relief requested without an evidentiary hearing because the petitioner did not state sworn facts which, if true, would entitle the petitioner to relief.

On original submission, we held that the petitioner’s application did “state facts, which if true, would entitle petitioner to relief,” because at the time of the prior Louisiana conviction which was used for enhancement, the petitioner “ . . . was without counsel, indigent, and did not waive counsel.”

The State’s motion for rehearing focuses upon the following portion of the Court’s opinion:

“In the instant case, no effort has been made to controvert appellant’s [sic., i. e., petitioner’s] pleadings that he was indigent. . . . Absent an affirmative showing of waiver, the waiver of counsel cannot be presumed from a silent record.”

Although the State concedes that the foregoing is a correct statement, the State contends that the State has never had an opportunity to deny or offer proof contrary to the petitioner’s allegations. Thus, the issue that must be addressed is as follows: What is the appropriate procedure where a trial judge ascertains that an application for habeas corpus does not contain facts which, if true, would render a petitioner’s confinement illegal, and does not hold an evidentiary hearing or afford the district attorney or Attorney General an opportunity to answer the sworn allegations of an application, but this Court determines that the application does state facts which, if true, would render a petitioner’s confinement illegal?

The State contends that Article 11.-07, Section 2(b) is dispositive of this issue. Article 11.07, Section 2(b) states:

“(b) When a petiton for writ of ha-beas corpus presented to the judge of the convicting court contains sworn allegations of fact, which, if true, would render petitioner’s confinement under the felony conviction illegal, the attorney representing the state in said court and the Attorney General of Texas shall be afforded an opportunity to answer such allegations, and if it appears that there are issues of fact which are material on the question of whether the petitioner is illegally restrained which have not been resolved, the petitioner may be granted a hearing on such issues of fact and the judge conducting such hearing shall make and file his findings of fact and conclusions of law.”

The foregoing does not support the State’s contention. It does, however, provide that the district attorney and the Attorney General shall be given an opportunity to answer the allegations of an application only when the “. . . petition for writ of habeas corpus presented to the judge of the convicting court contains sworn allegations of fact, which, if true, would render petitioner’s confinement . . . illegal . ..” It further authorizes a hearing in the trial court to resolve issues of fact. Cf. Ex Parte Young, 418 S.W.2d 824, 829 (Tex.Cr. App.1967).

However, Article 11.07, Section 2(b) must be read in conjunction with Article 11.07, Section 2(a), which states:

“(a) After final conviction in any felony case, the writ must be made returnable to the Court of Criminal Appeals of Texas at Austin, Texas. The writ may issue upon the order of any district judge, and said judge may upon presentation to him of a petition for said writ, set the same down for a hearing as to whether the writ should issue, and ascertain the facts, which facts shall be transmitted to the Court of Criminal Appeals with the return of the writ if same is issued after such hearing. Provided further, that should such writ be returned to the Court of Criminal Appeals without all the facts deemed necessary by the Court of Criminal Appeals, said court may designate and direct any district judge or judges of this state to ascertain the facts necessary for proper consideration of the issues involved.”

The last sentence of Section 2(a) is a clear indication that the Legislature anticipated that situations, like the present one, might arise where the trial court had not determined all of the facts necessary for a proper consideration of an application by this Court. Moreover, the recent amendments of Article 11.07, which provide that in all cases the clerk of the trial court shall “ . . . send a copy of the petition by certified mail, return receipt requested, to the attorney representing the State . who shall have 15 days in which it may answer the petitioner,” and that “[mjatters alleged in the petition not admitted by the State are deemed denied,” are persuasive indicia that the Legislature had previously provided that the district attorney and the Attorney General were entitled to an opportunity to answer the allegations of an application only when the trial judge concluded that an application contained sworn allegations of fact which, if true, would render a petitioner’s confinement illegal, or where the trial judge held an evidentiary hearing.

Therefore, we are constrained to conclude that Article 11.07, Section 2(b), does not require that the district attorney and the Attorney General be given an opportunity to respond to the allegations of an application for habeas corpus where the trial judge has concluded, without holding an evidentiary hearing, that the petition does NOT contain facts which, if true, would render the petitioner’s confinement illegal. However, pursuant to Article 11.07, Section 2(a), we abate the appeal and direct the trial judge to ascertain the facts necessary for proper consideration of the issues which the State was not afforded an opportunity to contest. This procedure should provide an opportunity for the State to respond to the petitioner’s allegations. Then, if there are unresolved issues of fact material to the legality of the petitioner’s confinement, the trial judge should hold an evidentiary hearing on such issues of fact, Article 11.07, Section 2(b), and make and file his findings of fact and conclusions of law. Thereafter, further procedures should be had pursuant to Article 11.07.

The appeal is abated.

      . Since petitioner’s trial occurred prior to the Supreme Court decision in Burgett v. Texas, supra, no claim can be made that petitioner has waived this contention by failing to object at trial. See Ex parte Casarez, Tex.Cr.App., 508 S.W.2d 620; Ex parte Flores, Tex.Cr.App., 537 S.W.2d 458.

      . This issue should not arise again in those applications filed in the convicting court after August 29, 1977, since Article 11.07, Vernon’s Ann.C.C.P., was amended to provide for notification of the filing of the application to the “ . . . attorney representing the State . . . ” and a fifteen-day period thereafter in which the State may answer the petition. See Acts 1977, 65th Leg., Ch. 789, pp. 1974-75, Section 1.

      . The record is silent as to whether the State received notice that the application or habeas corpus was filed. The State, or so it appears, was not afforded an opportunity to respond to the allegations of petitioner’s application at the trial court level. This Court can take judicial notice of our own records which reflect that the State was notified of the application when it was set for submission in this Court. [This notification occurred on October 27, 1976. The State filed its brief on November 12, 1976. On January 12, 1977, this Court granted the relief requested by petitioner. On January 26, 1977, the State filed its motion for rehearing.] The allegations of fact refuting the petitioner’s contentions contained in the State’s Motion for Rehearing cannot be considered by this Court. Ex Parte Lozano, 542 S.W.2d 408, 410 (Tex.Cr. App.1976). This is true even though this Court is not bound by the findings of the trial judge. Ex Parte Young, 479 S.W.2d 45, 46 (Tex.Cr. App.1972). Cf. Article 5, Section 5, Constitution of Texas, as interpreted in Ex Parte Young, 418 S.W.2d 824, 826 (Tex.Cr.App. 1967). The State has therefore completely been denied an opportunity to deny or present evidence contradicting the petitioner’s contentions.


author: ONION, Presiding Judge.

text:
    Xavier Garcia CHACON, Appellant, v. The STATE of Texas, Appellee.
    No. 55378.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1977.
    Michael L. McLeaish, Odessa, for appellant.
    John H. Green, Dist. Atty., and Roger W. Jones, Asst. Dist. Atty., Odessa, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal is taken from an order revoking probation.

On October 21, 1974, appellant entered a plea of guilty before the court to the offense of forgery by passing. Punishment was assessed at ten (10) years, but the imposition of sentence was suspended and appellant was placed on probation.

Among the conditions of appellant’s probation were the following conditions:

“(b) Avoid injurious or vicious habits; abstain from the use of DRUGS. NARCOTICS. AND INTOXICATING LIQUORS and
“(i) He may not possess, use, sell, or have under his control any NARCOTIC DRUGS. DEADLY WEAPON, or any type of FIREARMS.” (Emphasis supplied.)

A trial court in imposing probationary conditions in a felony case where probation has been granted by the court is not limited to the probationary conditions set forth in § 6 of Article 42.12, Vernon’s Ann. C.C.P., so long as the condition imposed is a reasonable one. Peach v. State, 498 S.W.2d 192 (Tex.Cr.App.1973); Salinas v. State, 514 S.W.2d 754 (Tex.Cr.App.1974); Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976).

The underscored portion of conditions (b) and (i) were not probationary conditions set forth in said § 6 of Article 42.12, supra, but are reasonable conditions set by the trial court.

On March 8, 1976, a motion to revoke appellant’s probation was filed. Said motion alleged that the appellant:

“1. On or about 12-28-74

Committing an offense against the laws of this State: to-wit: Driving While Intoxicated.

“2. On or about 2-28-76

Failure to avoid injurious or vicious habits: To-wit: The use of heroin.”

On March 8,1976, a hearing was conducted on the State’s motion to revoke probation. The sole witness was John Lyon, Adult Probation Officer of Ector County. Lyon related the appellant made his monthly report in person on February 27, 1976 at the probation office. While the appellant was in the office, Lyon observed what appeared to be a bump on appellant’s arm which was infected. At first appellant claimed he had a tattoo infection, but then admitted that “he had shot heroin the previous Monday.” Lyon related there was only one “fresh” needle mark on appellant’s arm and that appellant admitted to only one use of heroin. The appellant did not testify and offered no evidence in his behalf.

At the conclusion of the hearing, the trial judge stated from the bench:

“It is the order of the Court that the defendant, Xavier Garcia Chacon, has been found guilty of violating the terms of his probation in that by his own admission in the second count of the motion to revoke he admitted using heroin on or about the 23rd day of February, 1976, and that his probation should be revoked and sentence made final herein.”

On March 16, 1976, the written order revoking probation was filed setting forth the basis for revocation as:

“ON the 23rd day of February, 1976, failure to avoid injurious or vicious habits: To-wit: the use of heroin.”

An amended order of the court, dated June 15, 1977, recites that appellant violated the terms of his probation in the following respects, to-wit:

“On the 23rd day of February, 1976, failure to abstain from the use of narcotics: to-wit: the use of heroin.
“On the 23rd day of February, 1976, possessing, using and having under his control a narcotic drug, to-wit: heroin.”

On appeal appellant urges that the court’s finding that he failed to avoid injurious or vicious habits is not supported by the evidence.

The evidence adduced at the revocation hearing that appellant had used heroin only once will not support the written order of March 10,1976. A single instance of the use of a drug cannot be characterized as a habit under the decisions of this court. Morales v. State, 538 S.W.2d 629 (Tex.Cr.App. 1976); Marshall v. State, 466 S.W.2d 582 (Tex.Cr.App. 1971); Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970).

Does this call for a reversal of the order of revocation as appellant contends? We conclude that it does not.

It is well settled that allegations in a revocation motion need not be made with the same particularity of an indictment although such allegations must be specific enough to give the accused notice of alleged violation of law contrary to conditions of probation. Wilcox v. State, 477 S.W.2d 900 (Tex.Cr.App.1972); Rhodes v. State, 491 S.W.2d 895 (Tex.Cr.App.1973); Mason v. State, 495 S.W.2d 248 (Tex.Cr.App.1973); Fowler v. State, 509 S.W.2d 871 (Tex.Cr. App.1974); Tamez v. State, supra. While the motion here was drafted in terms of failure to avoid injurious or vicious habits, it also alleged the use of heroin contrary to the underscored portions of conditions (b) and (i) above. And none of the cases holding the single use of a drug is not a habit involved probationary conditions like the underscored portions of conditions (b) and (i) in the instant case.

At the conclusion of the hearing, the trial court found that appellant had violated his probationary conditions by using heroin. There was no finding as to an injurious or vicious habit, but only that appellant had used heroin, a violation of said portions of conditions (b) and (i). At the time there was no objection to the court’s finding, although appellant’s counsel urged that appellant be continued on probation and be required to enter the drug abuse center at Vernon.

It is true that the written order revoking probation contained the finding:

“ON the 23rd day of February, 1976, failure to avoid injurious or vicious habits: To-wit: the use of heroin.”

This appears to be a clerical mistake by a clerk who perhaps had only the benefit of a revocation motion and not the transcription of the court reporter’s notes. When this mistake was noted, the court entered an amended order of revocation finding that appellant on February 23,1976 had failed to abstain from the use of heroin and had possessed, used and had under his control heroin.

It is true that probation may not be revoked upon a finding of any violation of any probationary condition other than that alleged or necessarily included within the allegations of that alleged in the motion to revoke probation. Pickett v. State, 542 S.W.2d 868, 870 (Tex.Cr.App.1976), and cases there cited. In the instant case, while the revocation motion was not carefully drafted, it did allege the use of heroin by appellant on February 23, 1976, which reflected a violation of the underscored portions of conditions (b) and (i). While the allegation was preceded by “Failure to avoid injurious or vicious habits: to-wit:” the appellant did not in the trial court nor now claim he was misled as to what he was called upon to defend against. The court did not base its finding upon a violation of a probationary condition separate and distinct from the one alleged in the motion to revoke probation.

To reverse this case, send it back for the district attorney to allege “on or about 2-23 — 76 Use of heroin” in a new revocation motion, have the same evidence heard, and have probation revoked with the possibility of another appeal is unnecessary spinning of the judicial wheels. We should not require a useless thing. Taylor v. State, 482 S.W.2d 246 (Tex.Cr.App.1972); Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972); Rice v. State, 548 S.W.2d 725 (Tex.Cr.App. 1977).

Finding no abuse of discretion, the judgment is affirmed.


author: ONION, Presiding Judge. ROBERTS, Judge,

text:
    Robert Lewis ANDREW, Appellant, v. The STATE of Texas, Appellee.
    No. 52674.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1977.

      Harry Louis Zimmermann, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary Love, Les Eubanks, Jr., and Paul D. Macaluso, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Presiding Judge.

Our majority opinion on original submission is withdrawn and the following is substituted in lieu thereof. The appeal was taken from a conviction for robbery by assault with a firearm under the former Penal Code. Punishment was assessed by the jury at life imprisonment.

The sufficiency of the evidence is unchallenged.

On rehearing appellant urges reconsideration of his contention that the trial court committed reversible error in failing to require the prosecution to reveal the name of a confidential informer, a material witness.

It is well established that unless the informer participated in the offense, was present at the time, or was otherwise shown to be a material witness to the transaction or as to whether the defendant knowingly committed the act charged, his identity need not be disclosed. Barber v. State, 511 S.W.2d 937 (Tex.Cr.App.1974), and cases there cited. The appellant recognizes this rule, but argues the evidence in the instant case shows that the informer was present and was a material witness to the transaction. In support thereof, appellant calls attention to the testimony of Officer John Crosby and his attempt to perfect his bill of exception and the action of the trial court in denying him an opportunity to complete his bill of exception when he was on the verge of proving the informer could identify the persons seen running from the scene of the robbery.

During the trial, Officer John Crosby testified that partly as a result of information obtained from an informer he obtained a search warrant. On voir dire examination of Officer Crosby by appellant’s counsel Crosby was asked:

“Q Was this man that you talked to a fact witness to this offense?
“A To some of the facts of the offense, yes, sir.
“Q What is his name, please?
“A I can’t give you that, sir.”

The court then refused to require the State to divulge the name after the prosecutor stated the informer was not present in the store at the time of the robbery.

Appellant’s counsel then asked other questions of Crosby. The record reflects:

“MR. ZIMMERMANN: Let me ask this: Is it a fair statement to say that the confidential informant saw who really robbed the store running in a house?
“THE WITNESS: He saw.
“MR. ZIMMERMANN: He saw the man exit right after the robbery, the grocery store, run in a house and he is a fact witness of seeing him escape from the robbery?
“THE COURT: The court wants time to pass on that. In the morning will be enough time, enough time to get it in the record.”

Subsequently, the court announced its intention to allow the appellant to perfect his bill of exception to the refusal to order the disclosure of the name of the informer. First, the court stated:

“. . . The Court has been advised by the officer in charge that said witness is a confidential informant, and that he has promised said witness not to reveal his name; that he believes said witness’s life would be forfeited if the name were revealed. The Court is advised that the testimony of said witness would simply be that he saw three people running from the scene of the robbery at the time of the alleged robbery and that he would not be able to identify or name any of the said people but he did see where they went and told the officer the house in which said alleged fugitives went; and that is the extent of the testimony which said witness if forced to appear would give; is that correct, Mr. Officer?
“MR. CROSBY: Yes.”

It was then established that the court had obtained this information in an ex parte meeting with the prosecutors and Officer Crosby, at which appellant’s counsel was not present.

Appellant’s counsel then sought to perfect his bill of exception by interrogating Officer Crosby as to the information received from the informant. He then introduced the search warrant affidavit, which in part reflects:

“I have been informed of the foregoing setout facts by a citizen of the City of Dallas, Dallas County, Texas, who I know to be reliable, credible and trustworthy, who states the following facts: That he observed Two Negro Males and a Negro female in white shorts carrying what appeared to be a Shot Gun come running down The Alley from Duncan Grocery Store shortly after 9:00 P.M. August 27, 1973. That he observed these people cut across a vacant lot and run into the house at 1307 South Fitzhugh Avenue. That he observed a man known to him as Autry cruising the area of the Grocery Store before these people ran to 1307 South Fitzhugh and continued cruising for some time. He observed the Negro female and one of the Negro men get in a 1966 Grand Prix Pontiac, two-door Sedan parked at 1307 South Fitzhugh and leave. He observed these people return in twenty minutes. He observed both Negro men and the Negro female get in the 1968 Cadilac (sic) Sedan driven by the man known to him as Autry and drive South on South Fitzhugh Avenue approximately thirty minutes later. He states that these people did not take the Shot Gun with them.
“I have known this informant personally for the last eight years and he has on several occasions given me information that has proven to be reliable and has resulted in several convictions. I know this informant to be reliable, credible, and trustworthy in the past. . . .”

Appellant’s counsel then asked Crosby:

“Q What was the man’s name who you were told was involved in this robbery by your confidential informant?
“A He wasn’t sure of a name when I talked to him. I asked him if he knew the people’s names and he said it started with an A. I had previously found out through tax records that the car these people were in had been registered to a Walter Lee Autry. I asked him — at that time I said, ‘Does the name Autry sound like it’? He said, ‘Autry, or Andy or Andrew or something like that,’ and at that time I didn’t know anything about Robert Andrew (appellant).”

When appellant’s counsel sought to ask Crosby about other information he had received from the informer to demonstrate that the informer was a material witness to the transaction but which was “outside the affidavit,” the court announced, “This hearing is over.” The record then reflects:

“MR. ZIMMERMANN: Judge, I haven’t—
“THE COURT: I don’t care what you haven’t got. You are just horsing around here with this thing.
“MR. ZIMMERMANN: I object to the Court’s not allowing me to put in the record—
“THE COURT: I told you to sit down. This hearing is over.
“MR. ZIMMERMANN: Judge, may I have another hearing sometime to ask this officer if the name he was told was Autry, Andrew or Andy, why he put in the affidavit only Autry’s name?
“THE COURT: I have already ruled. This hearing is over.”

It is clear that the court terminated the bill of exception when appellant’s counsel was beginning to establish that the informer knew that one of the robbers’ names started with an A and could be Andrew, the name of the appellant, which would be inconsistent with the court’s statement as to what he learned in an ex parte meeting at which appellant’s counsel was not present. Despite the fact the trial court cut off the completion of the bill of exception, the informal bill of exception is sufficient to show the informer was a material witness to the transaction and that his identity should have been revealed. The facts are sufficient to bring the case within the holdings of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973).

Appellant’s motion for rehearing is granted. The judgment of affirmance is set aside. The judgment is now reversed and cause remanded.

ON APPELLANT’S MOTION FOR REHEARING

ROBERTS, Judge,

concurring.

I concur with the Court’s opinion on the Appellant’s Motion for Rehearing. However, these are two additional grounds of error which require that this case be reversed.

I.

During the trial, the trial judge admonished the appellant’s counsel as follows:

“THE COURT: Counsel, I think it is highly improper of you to criticize the jury.
“MR. ZIMMERMANN: Your Honor, I object to the Court’s comments.
“THE COURT: I object to your manner of argument. You shouldn’t tell the jury they couldn’t have read the charge in an hour and a half. It was read to them. They didn’t have to read it again unless they wanted to—
“MR. ZIMMERMANN: I object to your comments, Your Honor.
“THE COURT: You’ve been objecting all through the trial. I object to your conduct, too.
“MR. ZIMMERMANN: I object to the Court attacking—
“THE COURT: Don’t hold it against the Defendant because Mr. Zimmermann gets out of the record. I’ve been trying to keep him in the record for years and haven’t had any success at it yet.
“MR. ZIMMERMANN: Your Honor, I would object to the entire line of comments by the Court.
“THE COURT: All right. Get on with your argument. I’m getting tired of listening to you.
“MR. ZIMMERMANN: Your Honor, I object to the comments. I would like a ruling on my objections.
“THE COURT: I overrule your objection.”

These judicial remarks do not constitute a comment on the weight of the evidence. See Vernon’s Ann.C.C.P., Article 38.05. Rather, they comment on the behavior and tactics of appellant’s counsel. The proper scope of our inquiry should necessarily follow from the well established rule that although the trial judge can properly admonish counsel to conduct himself properly during the trial, this judicial power is subject to review when the comments are not necessary to control and conduct the trial. An abuse of discretion standard should be relied upon to guide us in this task, and when an abuse of discretion has resulted in prejudice to the accused, our task should be to reverse and remand for a new trial.

A review of prior cases involving judicial remarks which constituted a comment on defense counsel’s conduct and tactics reveals that the following have been significant factors in determining whether judicial comments were necessary to control and conduct the trial: (1) failure of defense counsel to observe prior rulings of the trial judge and/or rules of evidence, Williams v. State, 153 Tex.Cr.R. 438, 220 S.W.2d 663 (1949); Fleck v. State, 380 S.W.2d 621 (Tex. Cr.App.1964); Gaines v. State, 481 S.W.2d 835 (Tex.Cr.App.1972); Joshlin v. State, 488 S.W.2d 773 (Tex.Cr.App.1973); (2) failure of defense counsel to object to the trial judge’s comments, Fleck v. State, supra; Cartwright v. State, 426 S.W.2d 858 (Tex. Cr.App.1968); Gaines v. State, supra; Joshlin v. State, supra; Banks v. State, 510 S.W.2d 592 (Tex.Cr.App.1974); (3) the prejudicial nature of the comments, Reeves v. State, 118 Tex.Cr.App. 310, 40 S.W.2d 150 (1931); (4) whether the trial judge’s comments were justified by the record, Joshlin v. State, supra; and (5) whether the trial judge’s comments limited the defendant’s rights, Cartwright v. State, supra.

In the present case, we shall assume, without deciding, that the trial judge’s first comment — “Counsel, I think it is highly improper of you to criticize the jury” — was justified by the appellant’s criticism of the jury. Appellant, however, had every right to object to the trial judge’s reply. The trial judge, however, responded to appellant’s objection to his (the trial judge’s) comment. It was at this point that the trial judge began to abuse his discretion. The trial judge’s second comment — “I object to your manner of argument. You shouldn’t tell the jury . . . ” — was retaliatory in nature. The trial judge should have removed the jury before he continued his response to appellant’s objection.

Furthermore, appellant again properly objected. The trial judge again retaliated by stating that, “You’ve been objecting all through the trial. I object to your conduct, too.” This could not but convey an unfavorable impression to the jury.

Again the appellant objected, and again the trial judge commented in response to the appellant’s objection. This, the fourth comment by the judge in the colloquy, did instruct the jury not to hold counsel’s conduct against the appellant. However, it also interjected the behavior of counsel from past cases into the trial. This was completely unnecessary and served no legitimate end.

The appellant likewise objected to the trial judge’s fourth comment and the trial judge responded with his fifth and final comment: “All right. Get on with your argument. I’m getting tired of listening to you.” This admonition was unnecessary and could not but convey the impression that appellant’s final argument lacked merit.

Thus, with the exception of the first comment by the trial judge, four comments were made by the trial judge in response to proper objections by appellant. Therefore, it is clear that the judge’s comments were not in response to appellant’s failure to observe the prior rulings of the judge or rules of evidence and that appellant did properly object.

Moreover, these objections contained nothing to warrant the responses made by the trial judge. As stated in Hampton v. State, 120 Tex.Cr.R. 158, 46 S.W.2d 314, 315 (1932):

“The judge on the bench cannot too scrupulously refrain from the very appearance of partiality. He is for neither side in any litigation. The State has its officers to look after its interests in any case. Without bias or prejudice the judge should rule as the law commands, blind alike to friend and foe.”

Furthermore, the trial judge’s comment could only have prejudiced the minds of the jurors. After all, “[T]he influence of the trial judge on the jury ‘is necessarily and properly of great weight’ and ‘his lightest word or intimation is received with deference, and may prove controlling.’ ” Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933).

I cannot conclude that the trial judge’s comments were necessary to properly control and conduct the trial. The trial judge should have removed the jury if he wanted to admonish appellant’s counsel in the manner he did. The trial judge’s failure to do so constituted reversible error.

II.

I would also reverse this case on the basis of the prosecutor’s final argument. The record reflects the following:

“MR. NOBLE: Ladies and gentlemen, I think you have seen something. I’m not attacking the attorney. I think I need to point some things out to you. You know you saw that older man up here. You saw him pick out pictures that did not belong to those two men over there. If you want to leave it at that, that’s fine. You know, there just might be a reason that he does that on this witness stand and he may perhaps just doesn’t do that when Mr. Zimmer-mann is not around. I suggest to you that it is a reasonable deduction from the evidence that Mr. Zimmermann can intimidate Mr. Till. He can intimidate me. He can intimidate the Judge. He can intimidate just about anybody he wants to.

Now, it’s a reasonable deduction—

“MR. ZIMMERMANN: Your Honor, I object to this lawyer attacking Robert Andrew through his attorney.
“THE COURT: Overrule your objection.
“MR. ZIMMERMANN: Judge, the Court is not saying by overruling my objection that I intimidated the Court.
“THE COURT: No, sir, I’m not. I’m not intimidated.
“MR. ZIMMERMANN: Thank you.”

In Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973) we delineated the proper scope of jury arguments as: (1) summations of the evidence; (2) reasonable deductions from the evidence; (3) answers to arguments of opposing counsel; and (4) plea for law enforcement. The prosecutor’s argument fails to comply with the requirements of Alejandro, supra.

It is well established that prosecutorial arguments which personally attack defense counsel in an effort to inflame the minds of the jury and prejudice the defendant are not consistent with due process. Summers v. State, 147 Tex.Cr.R. 519, 182 S.W.2d 720 (1944); Crutcher v. State, 481 S.W.2d 113 (Tex.Cr.App.1972); Lopez v. State, 500 S.W.2d 844 (Tex.Cr.App.1973).

In Anderson v. State, 525 S.W.2d 20, 22 (Tex.Cr.App.1975), we were confronted with the following argument by the prosecutor:

“PROSECUTOR: See, you can think about that, ladies and gentlemen. He doesn’t want you to think about it. He wants to pull the wool over your eyes, but you can think about it. He won’t argue the law, and he won’t argue the facts; all he will do is get up here and lie." (Emphasis added)

We there held that the argument was so prejudicial that it would have been remedied only if the trial judge had granted the mistrial requested by the defendant.

In Crutcher v. State, supra, we were confronted with the following argument by the prosecutor:

“I’d sort of hoped Mr. Bruner [defense counsel] would stay with us in the courtroom . . . but I can assure you one thing, that wherever he has gone, he is not down on his knees praying to his God. I can assure you that . . ..”

We there held that arguments like the one involved in that case should not be condoned.

Anderson and Crutcher are to some degree distinguishable from the argument involved in the present case. Unlike Anderson, the prosecutor here did not call appellant’s counsel a liar, and unlike Crutcher the prosecutor did not attack the religious beliefs and/or practices of appellant’s counsel. However, the prosecutor’s argument was clearly aimed at informing the jury that appellant’s counsel had intimidated a witness, the prosecutor, the trial judge and “ . . . just about anybody he wants to.” It is obvious that the prosecutor was attempting to inform the jury that he thought that appellant’s counsel was attempting to intimidate them. Like the arguments in Anderson and Crutcher, the argument was manifestly improper and harmful.

Prosecutorial comments on the intensity and method of defense counsel’s cross-examination and defensive tactics should not be tolerated by this Court. If arguments of this nature are permitted, final arguments may be transformed into a forum where counsel for the State and the defense attack one another in an effort to influence the jury’s decision.

More importantly, any sanction of prose-cutorial arguments on defensive tactics and methods may very well have a chilling effect upon vigorous cross-examination.

If prosecutors can openly comment on forceful advocacy of their opponents and imply that forceful advocacy is not proper, then due process has certainly become a meaningless concept.

For the foregoing reasons, I concur not only with the majority’s opinion on rehearing, but would reverse the cause and remand for a new trial.

PHILLIPS, J., joins in this concurrence.

      . Also, continued judicial comments in response to proper objections by defense counsel directed at judicial comments may prove to have a chilling effect upon defense counsel’s willingness to actively represent his case. Judicial conduct directed at legitimate defense tactics, if it affects defense counsel’s conduct during trial, may operate to deprive defendant of effective assistance of counsel. I cannot condone any unnecessary and excessive judicial action that impinges upon the rights of a defendant to be represented zealously by his attorney.

      . This argument occurred immediately after one of the defendant’s attorneys momentarily left the courtroom after completion of his argument.

      . This, of course, would be completely incompatible with due process. Moreover, Sec. 5.9(d) of the ABA’s Standards Relating to the Prosecution, and 7.8(d) of the ABA’s Standards Relating to the Defense Function, Approved Draft, 1971, state:
      “A [prosecutor] [lawyer] should refrain from argument which would divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making predictions of the consequences of the jury’s verdict.”


author: DOUGLAS, Judge. ROBERTS, Judge,

text:
    Billy James WILDER, Appellant, v. The STATE of Texas, Appellee.
    No. 53474.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1977.
    Appellant’s Motion for Rehearing Denied Nov. 16, 1977.

      Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary W. Love and Les S. Eubanks, Jr., Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is the companion case to Andrew v. State, 558 S.W.2d 876 (Tex.Cr.App.1977). Wilder appeals from his conviction for the offense of robbery by firearms wherein the jury assessed punishment at fifty years.

Grounds of error numbers one, two, three, four and seven are identical to grounds raised and discussed in Andrew and no further discussion will be presented in this opinion. These grounds of error are here, as in Andrew, overruled.

Further, in view of our disposition of his double jeopardy allegation in Andrew, we need not discuss grounds of error numbers eight and ten.

In ground of error number five he contends that the trial court erred in admitting evidence of an extraneous offense. Officer E. R. Reynolds of the Dallas Narcotics Division testified that on the day following the instant offense he arrested appellant pursuant to a search warrant for an offense other than the one involved in the instant ease.

Appellant did not object on the grounds now raised on appeal. He did not object that the arrest was unrelated to the robbery and the assaults in the instant case. See Hoffman v. State, 514 S.W.2d 248 (Tex. Cr.App.1974).

Next he complains of the following portion of the prosecutor’s argument in an attempt to explain why the confidential informer was not produced as a witness:

“Mr. Zimmermann asked why didn’t they bring him down here. Now I’m trying to tell you and he won’t let me, because he would be dead in a minute.”

The record reflects that one of the witnesses, a victim of a gunshot wound, testified that when he turned his head to look at the robbers he was shot. Apparently the robbers did not want witnesses.

The prosecutor’s remarks were to some extent invited. The record shows that appellant’s counsel had argued as follows:

“ . . . how about the mysterious witness, the mysterious witness who saw it? Why can’t he come down here? Why can't he identify somebody? Why can’t he be brought to you? Not trying to hide anything. . . . ”

No reversible error is shown. Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975); Howard v. State, 505 S.W.2d 306 (Tex.Cr. App.1974).

In ground of error number nine appellant contends that the court’s charge is fundamentally defective because it fails to apply the law to the facts of the instant case. Specifically he complains of the court’s charge on alibi.

The court submitted the following charge as to alibi:

“You are instructed that a defense of alibi is that, if an offense was committed, as alleged, that the defendant was, at the time of the commission thereof, if any, at another and different place from that at which such offense was committed, if it was, and therefore was not and could not have been the person who committed the same, if any.
“Now, if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where the offense was committed, if any was committed, at the time of the commission thereof, if any, you will find the defendant not guilty.”

Appellant did not object to this instruction in writing as required by Article 36.14, V.A.C.C.P. Nothing is presented for review. Mott v. State, 543 S.W.2d 623 (Tex.Cr.App.1976). No fundamental error is shown.

In his final ground of error, appellant complains of the prosecutor’s argument. There was no objection to the argument. Nothing is presented for review. Thompson v. State, 537 S.W.2d 732 (Tex.Cr. App.1976).

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

ROBERTS, Judge,

dissenting.

The majority has overruled appellant’s contention that the prosecutor exceeded the limit of proper invited argument during his final argument at the guilt stage of the trial. I dissent.

The testimony reveals that two men and a woman robbed two men at a convenience store in Dallas. During the robbery, both of the victims were shot. A confidential informant gave information leading to the arrest of the appellant shortly after the alleged offense. The sufficiency of the evidence is not challenged.

Appellant’s sixth contention focuses upon the following argument concerning a confidential informant made by the prosecutor:

“Mr. Zimmermann [Defense Counsel] asked why didn’t they bring him down here. Now I’m trying to tell you and he won’t let me, because he would be dead in a minute, that’s why.”

It must be noted, however, that immediately prior to the above argument the prosecutor, over objection, had stated:

“Now, Mr. Zimmermann said, ‘Why didn’t we bring that mysterious person down here?’ Yes, he is mysterious, ladies and gentlemen. He is a confidential informant.”

Both of the prosecutor’s comments were in response to the following argument by appellant’s counsel:

“How about the mysterious witness, the mysterious witness who saw it? Why can’t he come down? Why can’t he identify somebody? Why can’t he be brought to you? Not trying to hide anything.”

The State contends that the prosecutor’s comments were invited by the appellant and therefore not error.

It is well established that the rule of invited error is that if the defendant’s counsel goes outside the record in his argument, the prosecutor is then also permitted to go outside the record to respond to that argument. Reynolds v. State, 505 S.W.2d 265 (Tex.Cr.App.1974); Griffin v. State, 481 S.W.2d 838 (Tex.Cr.App.1972). But in Reynolds v. State, supra, we held that when defense counsel’s argument is not objectionable the prosecutor may not go outside the record and argue facts not in evidence. See also Bailey v. State, 531 S.W.2d 628 (Tex.Cr. App.1976). Furthermore, in Garrison v. State, 528 S.W.2d 837 (Tex.Cr.App.1975), we held that a prosecutor’s argument may not exceed the invitation of defense counsel’s argument.

These rules create a dual inquiry that must be applied to allegedly improper pros-ecutorial responses to arguments of defense counsel. First, if defense counsel’s argument was supported by the record and therefore proper, then any response by the prosecutor that is not supported by the record is improper. Second, if defense counsel’s argument was not supported by the record and therefore improper, then any response by the prosecutor going outside the record will be improper only if the response exceeded the limits of the proper scope of the invitation. See Garrison v. State, supra.

In the present case, we deal with a comment by the appellant’s counsel touching upon the State’s failure to call a witness, and the prosecutor’s response to that comment.

It is a well established proposition that the State can comment during final argument on the failure of the defendant to call competent and material witnesses. Thomas v. State, 519 S.W.2d 430 (Tex.Cr.App.1975); Fisher v. State, 511 S.W.2d 506 (Tex.Cr. App.1974); Winkle v. State, 506 S.W.2d 891 (Tex.Cr.App.1974). It is equally well established that the defendant may comment upon the failure of the State to call competent witnesses. Bowlin v. State, 93 Tex. Cr.R. 452, 248 S.W. 396, 404 (Tex.Cr.App. 1923); Patterson v. State, 387 S.W.2d 390 (Tex.Cr.App.1965); 56 Tex.Jur.2d, Trial, Sec. 261, p. 599.

The record reflects that there was testimony relating to a “mysterious” witness. Therefore, the argument by the appellant’s trial counsel was proper. Reynolds v. State, supra; Bailey v. State, supra.

While there is no need to delineate the precise limits of proper invited argument, it is sufficient to note that the prosecutor adequately explained the absence of the mysterious witness when he told the jury that the mysterious witness was a confidential informant. Cf. Bailey v. State, supra at 630.

The prosecutor’s comment that the mysterious witness “would be dead in a minute” if he testified interjected his opinion that the appellant was a murderer. This violated the principle that a prosecutor may not imply that an absent witness was afraid to testify due to the defendant. Thomas v. State, 519 S.W.2d 430 (Tex.Cr.App.1975); Salas v. State, 403 S.W.2d 440 (Tex.Cr.App. 1966) (J. Morrison, concurring); Benavides v. State, 111 Tex.Cr.R. 361, 12 S.W.2d 1031 (1929). The argument interjected new and harmful facts which were prejudicial to the appellant. Minter v. State, 505 S.W.2d 581 (Tex.Cr .App.1974).

The judgment should be reversed and the cause remanded.

PHILLIPS, J., joins in this dissent.

      . The dissent in discussing invited argument would be so generous that it would permit the State to argue what is in evidence after it has been invited to do so by the defense counsel. There would be no need for, and no cases upon, the rule of invited argument if the reasoning of the dissent were followed because it has always been the rule that the prosecutor may argue the evidence without an invitation from anyone. Then, the dissent has some idea that perhaps counsel for the defense may invite argument, but the prosecutor’s reply may not go further than what the defense might want him to say.

      . It should be noted, however, that the issue of identity was hotly contested.

      . If the defendant was unable to comment on the State’s failure to call material witnesses, a violation of due process would result.

      . Even if the argument was improper, the fact that appellant’s counsel exceeded the bounds of proper argument should not justify an unrestrained prosecutorial reply. To allow an unrestrained response would be akin to reasoning that two wrongs make a right.
      The better reasoned approach would require the prosecutor to object to improper arguments by defense counsel and request a curative instruction from the trial judge. Only if the objection is overruled should the prosecutor be permitted to respond to the argument of defense counsel. Furthermore, the prosecutorial response should be limited so that the defendant’s right to a fair trial is not violated.
      Moreover, where defense counsel ignores the instructions of the trial judge as to the proper scope of argument, the trial judge can hold him in contempt, or, under the ruling of United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), remove counsel from the proceeding and declare a mistrial without invoking the availability of a double jeopardy claim.
      It is obvious that the invited argument rule is not in the best interests of society. Unlike the exclusionary rule, however, there are alternatives that better suit due process. Cf. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Bivens v. Six Unknown Named Federal Agents, 403 U.S. 388, 441, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (dissenting opinion of Mr. Chief Justice Burger).

      . In Garrison v. State, supra, we held that the prosecutor exceeded the limits of proper invited arguments by recounting all of the defendant’s alleged misdeeds before the jury. The strong implication was that a conclusory statement would have been within the limits of proper invited argument.

      . In Garrison v. State, supra, the prosecutor similarly exceeded the limits of proper invited argument by interjecting the crimes of molesting and adultery. We held that to be outside the limits of proper invited argument.


author: BROWN, Commissioner.

text:
    James Arthur CLARK, Appellant, v. The STATE of Texas, Appellee.
    No. 53928.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1977.

      Michael Allen Peters, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and John S. Holleman, Asst. Dist. At-tys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

In a trial before a jury, appellant was convicted of indecency with a child. The court assessed his punishment at eight years in the Texas Department of Corrections.

In his first ground of error, appellant contends that the evidence is insufficient to support his conviction. V.T.C.A., Penal Code, Sec. 21.11, provides:

“(a) A person commits an offense if, with a child younger than 17 years and not his spouse, whether the child is of the same or opposite sex he:
“(1) engages in sexual contact with the child; . . .”

V.T.C.A., Penal Code, Sec. 21.01(2), provides:

“ ‘Sexual contact’ means any touching of the anus or any part of the genitals of another person . . . with intent to arouse or gratify the sexual desire of any person.”

Appellant argues that none of the testimony showed that he ever had “sexual contact” with the prosecutrix, since there was no evidence that he touched her anus or genitals.

The record reflects that the prosecutrix was six years old at the time of trial. On the date of the offense, appellant was living with the prosecutrix’s mother in an apartment in Harris County. The prosecutrix testified that on that night appellant came into her room while she was asleep. She stated that when she awoke appellant had his finger in her “butt.” The prosecutor attempted to clarify what she meant by “butt.” He stated,

“Q. Your mother explained to me that you have a front butt and a back butt, is that not correct?
“A. Yes.
“Q. Okay, your back is where you mess when you go to the restroom?
“A. Yes, sir.
“Q. You know where your pea (sic) thing is what you go to the bathroom that is your front butt, is that right.
“A. Yes, sir.
“Q. Your front butt is in between your legs in this area here?
“A. Yes.”

The prosecutrix stated that appellant then sucked on her breasts and had her suck on his “front butt” which she indicated was his penis. She testified that he kissed her on the mouth and told her that he loved her. She stated,

“A. Then he — then he sucked on my butt again and put his fingers in it and told me if it hurt and it did.
“Q. [Prosecutor] You say he sucked on your front butt?
“A. Yes.
“Q. And that is the area between your legs where you pea (sic) at?
“A. Yes.
“Q. And he had his lips on that area of your body?
“A. Yes.
“Q. And then what did he do? You say he stuck his fingers in your front butt again?
“A. Yes.”

The prosecutrix’s grandmother testified that the day after the offense occurred she observed red bruises on the prosecutrix’s breasts. She testified that the prosecutrix then told her what appellant had done. The State introduced into evidence photographs of the prosecutrix taken the day after the offense, showing the bruises on her breasts.

The mother of the prosecutrix testified that her daughter had also told her what appellant had done after the discovery of the bruises. She further stated the prose-cutrix called her vagina her “little butt.”

Appellant testified in his own behalf, and denied that he ever touched the prosecutrix. He now contends that the evidence is insufficient to show that he touched the genitals or anus of prosecutrix. He argues that the evidence only shows that he touched her “front butt” which was defined as that “area between your legs where you pea (sic) at.” Appellant places great reliance upon the testimony of the mother that the prosecutrix called her vagina her “little butt.” Since the prosecutrix testified that he touched her “front butt,” appellant argues that she was not referring to her vagina when she described where appellant touched her. Since the definition of “sexual contact” includes only the anus and genitals, and does not include the urinary opening, appellant argues that the State has not proven that he committed a crime under Sec. 21.11, V.T.C.A., Penal Code. He further argues that in a female “genitals” include only the vagina and no other part of the genital area. Appellant’s contention is without merit. We hold that the evidence is sufficient to sustain the conviction.

When the prosecutrix testified that appellant touched her “front butt” as she defined it, this was sufficient to show that he had “sexual contact” with her. The definition of “sexual contact” under the statute includes the touching of “any part of the genitals” of a person. Thus, the statute includes more than just the vagina in its definition; the definition of “genitals” includes the vulva which immediately surrounds the vagina. See Ball v. State, 163 Tex.Cr.R. 214, 289 S.W.2d 926 (1956), and Pendell v. State, 158 Tex.Cr.R. 119, 253 S.W.2d 426 (1952), defining genital organs under the former penal code, Article 535d.

Further, under the former code, this Court has held evidence sufficient to show a touching of the genitals or “sexual parts” even though the victim used language different from that in the statute to describe the part of the body touched. Tyra v. State, 534 S.W.2d 695 (Tex.Cr.App.1976) (area between legs “where use the restroom” sufficient); Whatley v. State, 488 S.W.2d 422 (Tex.Cr.App.1972) (same); Thomas v. State, 399 S.W.2d 555 (Tex.Cr. App.1966) (“privates” sufficient). See also Mounce v. State, 432 S.W.2d 104 (Tex.Cr. App.1968).

It is important to note that in a prosecution under Sec. 21.11, V.T.C.A., Penal Code, the victim is a child, and may well be very young. As such, the child may lack the technical knowledge to accurately describe parts of his or her body. Where the child has sufficiently communicated to the trier of fact that the touching occurred to a part of the body within the definition of Sec. 21.01, the evidence will be sufficient to support a conviction regardless of the unsophisticated language that the child uses. For this Court to hold otherwise would be to frustrate the intent of the statute. Appellant’s first ground of error is overruled.

Appellant next contends that the trial court abused its discretion in permitting the six year old prosecutrix to testify, in violation of Article 38.06(2), Vernon’s Ann.C.C.P. The statute provides that all persons are competent to testify except,

“2. Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated, or who do not understand the obligation of an oath.”

In the instant ease, appellant objected to the prosecutrix’s testimony. The trial court then recessed the jury and the prosecutor proceeded to question the prosecutrix. During the examination she stated that she knew the difference between the truth and a lie, and that she knew that people who lied went to jail or to “hell.” The trial court ruled that she was able to relate the transactions about which she was interrogated and that she understood the obligation of an oath and was therefore competent to testify.

The question of competency of witnesses is for the trial court to resolve. Upon review, a ruling by the trial court will not be disturbed unless an abuse of discretion is shown. Provost v. State, 514 S.W.2d 269 (Tex.Cr.App.1974); West v. State, 511 S.W.2d 502 (Tex.Cr.App.1974). In determining whether there has been an abuse of discretion, this Court will review the entire testimony of the witness in addition to that given in the hearing on competency. Provost v. State, supra; West v. State, supra.

Our review of the entire testimony given by the prosecutrix reveals that the trial court committed no abuse of discretion in allowing her to testify. The fact that she made inconsistent statements as to details of the offense or gave much of her testimony in response to leading questions does not render her incompetent. Griffin v. State, 514 S.W.2d 278 (Tex.Cr.App.1974); Fields v. State, 500 S.W.2d 500 (Tex.Cr.App. 1973).

Appellant also argues that the trial court failed to comply with Article 38.06(2), Vernon’s Ann.C.C.P. He contends that the statute requires the court rather than the prosecutor to examine the witness. Since the court did not directly question the witness, appellant argues that there was no compliance with the statute. This contention is without merit. It is not error for the court to permit the actual examination of the witness to be conducted by the prosecution. As long as the court makes an independent ruling on competency based upon an examination of the witness by the court, the prosecution or the defense attorney, there is compliance with the statute. Appellant’s second ground of error is overruled.

In his third ground of error, appellant contends that the indictment for the offense is fundamentally defective in that it fails to allege a material fact in the description of the offense. We note that no motion to quash was filed in the trial court.

The indictment states that appellant,
“did then and there unlawfully with intent to arouse the sexual desire of the Defendant have sexual contact by touching the genitals of L_ M_ M_, a child under the age of seventeen years and not his spouse.”

Appellant contends that this indictment is fundamentally defective in that it fails to allege a culpable mental state, under V.T. C.A. Penal Code, Sec. 6.02. This statute provides that a person does not commit an offense unless he intentionally, knowingly, recklessly or with criminal negligence engages in conduct as the definition of the offense requires. Since the indictment fails to allege a culpable mental state, appellant argues that his conviction under it is void. This contention is without merit.

In Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1976) this Court considered and rejected this same argument in an indictment for burglary. That indictment alleged that the defendant

“ . . . did then and there with intent to commit theft, enter a habitation without effective consent of Carlos Reyna, the owner.”

The defendant argued that the indictment was fundamentally defective because it failed to allege that the entering was “knowingly and intentionally” done. In holding that the indictment was not fundamentally defective, this Court stated:

“The conduct that is the gist of the offense of burglary in this case is the entry into the habitation [footnote omitted] with the requisite intent. The indictment alleges the culpable mental state with which the appellant entered the habitation; it alleges he entered the habitation ‘with the intent to commit theft.’ ”

In the instant ease, the gist of the offense is appellant’s having sexual contact with the prosecutrix, with the requisite intent. The indictment does allege the culpable mental state with which he had sexual contact. Therefore, under the authority of Teniente v. State, supra, appellant’s third ground of error is overruled. See also, Johnson v. State, 537 S.W.2d 16 (Tex.Cr. App.1976).

In his fourth ground of error, appellant contends that the evidence is insufficient to show that the trial court had jurisdiction of the case, in that venue was never proven. Appellant raises this for the first time on appeal. Since no issue of venue was made in the court below, it is presumed that venue was proven. Article 44.24, Vernon’s Ann.C.C.P.; Grant v. State, 507 S.W.2d 732 (Tex.Cr.App.1974). Further, we note that although the prosecutrix could not testify as to which county her mother’s apartment was in (the apartment being the place where the offense occurred), the prosecutrix’s grandmother testified that the apartment was in Harris County. This was sufficient to prove venue, which need only be proven by a preponderance of the evidence. Article 13.17, Vernon’s Ann.C.C.P.; Banks v. State, 530 S.W.2d 940 (Tex.Cr.App.1975).

The judgment is affirmed.

Opinion approved by the Court.

      . No evidence was introduced as to her age at the time of the offense. However, the offense occurred on December 20, 1975, and appellant was tried on May 4, 1976. Thus, she was either five or six years old at the time of the offense.

      . Victory v. State, 547 S.W.2d 1 (Tex.Cr.App. 1976), is not authority for appellant’s contention, as he asserts. In Victory, the indictment for indecency with a child failed to allege that the defendant had sexual contact” with the intent to arouse or gratify the sexual desire” of any person, which was a material fact in the description of the offense.


author: PHILLIPS, Judge.

text:
    Ex parte Melvin James JOSEPH.
    No. 56259.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1977.

      Carol S. Vance, Dist. Atty., and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.

Petitioner was initially convicted of the offense of rape by force and threats, pursuant to Art. 1183, V.A.P.C. (1925), on a plea of not guilty to a jury and was assessed a 12 year term of imprisonment on January 3, 1974. This conviction was affirmed on appeal in a per curiam opinion (Cause No. 49,554). Subsequently, petitioner was also convicted of the offense of sodomy, pursuant to Art. 524, V.A.P.C. (1925), in another jury trial, and this time was assessed a 10 year term of imprisonment on April 2,1974. The trial court ordered that the two above mentioned sentences run cumulatively. Art. 42.08, V.A.C.C.P. An attempted appeal of this conviction resulted in a dismissal of the appeal (Cause No. 51,173).

Petitioner filed his application for writ of habeas corpus with the trial court contending that the second trial for the offense of sodomy should have been barred under the double jeopardy doctrine since both offenses arose out of the same operative set of events, at the same time, against the same complaining witness. It will be necessary to outline the facts concerning these transactions.

In reviewing the evidence submitted in both of petitioner’s trials, a fair summary of the facts would indicate that on July 12, 1973, petitioner approached the complaining witness, L_M_, when she was in a telephone booth talking to her boyfriend, and asked her if she had any jumper cables. Upon receiving a negative reply, he returned to his car, which he parked alongside of complainant’s car, and remained in the vicinity, observing her. She continued her telephone conversation, informing her boyfriend of petitioner’s request and stating that he seemed to be watching her. A few minutes later petitioner appeared at the telephone booth again with a gun in his hand. The complaining witness screamed, and petitioner hung up the phone receiver. She was forced into the front seat of her car and ordered to drive while petitioner got in the back seat and placed the gun to her head.. After driving a few minutes, she was told to stop the car and get on the floorboard on the passenger side. Petitioner began driving the car, still holding the gun on her at all times.

A short while later, after making a stop at a parking lot, he indicated he was going to let her out, and he drove the vehicle into a grove of trees in a deserted area. He stopped the car and ordered the complainant out. There he forced her to undress and to commit oral sodomy. He thereafter raped the complainant at pistol point. After the rape had occurred, petitioner ordered the complaining witness to get dressed and get back into her car, and afterward petitioner drove the complaining witness back to the phone booth. He departed and left in his car, and she left in hers, returning to her apartment.

To uphold the second conviction such must not offend the double jeopardy clause of the federal constitution as construed by the United States Supreme Court nor the carving doctrine as applied by this Court.

Two offenses are “the same” under the double jeopardy clause of the federal constitution unless each requires proof of an additional fact that the other does not. Jeffers v. U. S., 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Iannelli v. U. S., 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). Rape requires proof of force or threats and lack of consent which are not required for the offense of sodomy. The sodomy offense of which petitioner was convicted herein required proof that petitioner had carnal copulation in an opening of the body, except sexual parts, which is not required for the offense of rape. Therefore, the two prosecutions herein were not violative of the double jeopardy clause as construed by the Supreme Court of the United States.

Under the carving doctrine as applied in this State, a person cannot be convicted of different parts of a single transaction, though said parts are in contemplation of law distinct offenses. Wright v. State, 17 Tex.App. 152. When one offense is a necessary element in, and constitutes an essential part of another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to the prosecution for the other. Herera v. State, 35 Tex.Cr.R. 607, 34 S.W. 943; Ex parte Evans, 530 S.W.2d 589, Tex.Cr.App.; Price v. State, 475 S.W.2d 742, Tex.Cr.App. Since both the rape and the act of sodomy upon the prosecutrix herein were not proven by the same evidence and the act of sodomy was complete prior to .the commission of the act of rape, the doctrine of carving does not bar multiple convictions of the petitioner. Ex parte Caldwell, 537 S.W.2d 265, Tex.Cr. App.

Petitioner’s application for writ of habeas corpus is denied.


author: ODOM, Judge.

text:
    Ex parte Ernesto NANES.
    No. 56261.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1977.

      Marvin 0. Teague, Houston, for appellant.
    Andy J. Shuval, Dist. Atty., Hereford, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is a post-conviction habeas corpus application from the 222nd District Court in Deaf Smith County. Art. 11.07, V.A.C.C.P. Appellant contends that he was denied his constitutional rights to confrontation of the witnesses at his original trial because he was not afforded an interpreter throughout the proceedings.

The record shows that appellant was convicted in 1969 of the offense of statutory rape and sentenced to life. The conviction was affirmed in our Cause No. 49,751 by a per curiam opinion, 524 S.W.2d 518.

The record at the habeas corpus proceeding reflects that the State entered into a stipulation with the appellant in the trial court that the appellant did not understand the English language during the case in which he was convicted. The record also contains an affidavit of the interpreter that he was not present during many of the phases of the trial and that he was only asked to interpret while the appellant was on the stand and when appellant was asked to change his plea. He further stated:

“I felt bound as an interpreter to express to Mr. Nanes only what I was directed to do by the attorney. All during the trial Mr. Nanes appeared confused and in a state of shock and I do not believe he thoroughly understood exactly what was transpiring.”

We hold that the record supports appellant’s contention and that the relief should be granted; it is therefore ordered that appellant be released to the Sheriff of Deaf Smith County to answer the indictment in the 222nd District Court Cause No. 2614.

DOUGLAS, J., concurs in the results.


author: DOUGLAS, Judge.

text:
    Ex parte William G. LONG.
    No. 56264.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1977.

      Michael W. White, Andrew B. Logan, San Antonio, for appellant.
    Bill M. White, Dist. Atty., Douglas C. Young, Alan E. Battaglia and Bennie F. Steinhauser, Jr., Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is a post conviction habeas corpus proceeding instituted under Article 11.07, V.A.C.C.P., in which petitioner seeks to set aside his 1959 conviction for murder with malice. No appeal was taken.

In 1958 petitioner was twice indicted for the offense of murder with malice in companion cases. Trial on the first indictment before the Criminal District Court in Bexar County resulted in a hung jury and a mistrial was declared. During the trial, evidence was adduced which raised the issue of petitioner’s mental competency to stand trial. Venue was changed to DeWitt County where petitioner was retried, convicted and his punishment was assessed at ninety-nine years. On the motion of the trial court in DeWitt County venue in the second case pending against the petitioner was returned to Bexar County. Petitioner again appeared before the Criminal District Court and was convicted upon a plea of guilty before a jury to the second indictment. Punishment was assessed at ninety-nine years. The Honorable M. D. Jones presided when the mistrial was declared and at petitioner’s plea of guilty in the second trial. The petitioner attacks the second conviction.

He sets forth sixteen contentions. We have reviewed the last fifteen and have found them to be without merit. Discussion will therefore be confined to the first contention.

He contends that the trial court denied him due process of law in accepting his plea of guilty to the second indictment without holding a separate hearing on the issue of his competency to stand trial in compliance with Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 14 L.Ed.2d 815 (1966). No suggestion or evidence of incompetency was brought to the attention of the court during petitioner’s plea of guilty before the jury. It is argued, however, that the same trial judge who accepted petitioner’s plea of guilty also presided at his previous mistrial and was, therefore, on notice of evidence adduced at the mistrial which would have raised a bona fide doubt as to petitioner’s present mental incompetency. We find petitioner’s argument to be without merit and affirm the order of the district court denying relief.

The statement of facts before petitioner’s trial when there was a mistrial is not before us; hence, no review of the testimony adduced at those proceedings is possible. Counsel asserts, however, that evidence was presented at the mistrial of sufficient force to create in the mind of the trial judge reasonable grounds to doubt petitioner’s competency to stand trial. See, Bonner v. State, 520 S.W.2d 901 (Tex.Cr.App.1975).

At the outset, we observe that no pre-trial motion for a hearing to determine petitioner’s competency was filed prior to the entry of his guilty plea. At no time during the presentation of evidence to support the plea did petitioner’s counsel express to the court any uncertainties concerning his client’s mental capacity. Moreover, no evidence was introduced which would have cast doubt on petitioner’s competency. Petitioner argues that his competency to stand trial on the second indictment was placed in issue by virtue of certain evidence, within the personal knowledge of the trial judge, which had been introduced at the prior trial conducted four months earlier and of which the court should have taken judicial notice.

Even if there might have been evidence that petitioner was incompetent to stand trial four months earlier, this did not mean that he was incompetent to stand trial at the time he pled guilty. To suggest that the trial court should have held a separate competency hearing on the basis of evidence adduced several months before is to suggest that mental competency is fixed and unalterable over time. This Court has held to the contrary. Almand v. State, 536 S.W.2d 377 (Tex.Cr.App.1976); Bledsoe v. State, 519 S.W.2d 646 (Tex.Cr.App.1975).

The refusal of a trial court to halt trial on the merits and conduct a separate hearing on competency will not be disturbed in the absence of an abuse of judicial discretion. Garza v. State, 522 S.W.2d 693 (Tex.Cr.App.1975); Bonner v. State, supra; Perryman v. State, 507 S.W.2d 541 (Tex.Cr.App.1974). No such abuse of judicial discretion is demonstrated in the instant case.

The relief sought is denied.

      . Petitioner’s conviction became final prior to the Supreme Court’s decision in Pate v. Robinson. In Ex parte Halford, 536 S.W.2d 230 (Tex. Cr.App.1976), however, this Court determined that Pate v. Robinson may be retroactively applied.