author: TOM G. DAVIS, Judge.

text:
    Ex parte Veronica D. MANGRUM.
    No. 57410.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 12, 1978.
    Rehearing En Banc Denied May 10, 1978.

      Roark M. Reed, Dallas, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Austin, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from the trial court’s denial of relief under a pre-conviction writ of habeas corpus in a misdemeanor case. Art. 11.09, V.A.C.C.P. The appellant is charged by information with welfare fraud in violation of Art. 695c, Sec. 34, V.A.C.S.

Appellant contends that the information is void and that the trial court has no jurisdiction because the offense she is charged with no longer exists.

The general rule is that when there is a valid statute or ordinance under which a prosecution may be brought, habeas corpus is not available to test the sufficiency of the complaint, information, or indictment. Ex parte Jarvis, 109 Tex.Cr.R. 52, 3 S.W.2d 84 (1928); Ex parte Minor, 146 Tex.Cr.R. 159, 172 S.W.2d 347 (1943); Ex parte Dickerson, 549 S.W.2d 202 (Tex.Cr.App.1977). However, in the instant case, the appellant alleges that there is no valid statute under which she may be prosecuted for welfare fraud, and therefore the information is void. See Ex parte Ward, 560 S.W.2d 660 (Tex.Cr.App.1978); Ex parte Dickerson, supra.

Appellant is charged, as stated above, by information with having committed the offense of welfare fraud in violation of Art. 695c, Sec. 34, V.A.C.S. This is a misdemeanor offense punishable by a fine of up to one hundred dollars and confinement for up to two years, or both. The information alleges in pertinent part that appellant did

“knowingly and intentionally attempt to obtain and obtain assistance services and treatment from the Texas State Department of Public Welfare, to-wit: Aid to Families with Dependent Children, in an amount greater than that to which the said defendant, was otherwise justly entitled, by means of a wilfully false statement and representation, impersonation and other fraudulent means, to-wit: the said defendant failed to report income through employment at Colbert-Volks.”

The offense is alleged to have occurred on or about October 2, 1975. The information was filed on April 11, 1977.

At the time the information was filed, Art. 695c, Sec. 34, V.A.C.S., read as follows:

“Whoever obtains, or attempts to obtain, or aids or abets any person to obtain, by means of a wilfully false statement or representation or by impersonation, or by other fraudulent means:
“(1) assistance, services, or treatment to which he is not entitled;
“(2) assistance, services, or treatment greater than that to which he is justly entitled;
“(3) Or, with intent to defraud, aids or abets in buying, or in any way disposing of the property of a recipient of assistance without the consent of the State Department, or whoever violates Section 32 or Section 33 of this Act, shall be deemed guilty of a misdemeanor . . . .”

This section of the Public Welfare Act of 1941, Art. 695c, V.A.C.S., was amended by Senate Bill 154 (Acts 1977, 65th Leg., p. 637, ch. 235, eff. May 25, 1977), which reads in part as follows:

“Section 1. Section 34 'of the Public Welfare Act of 1941, as amended (Article 695c, Vernon’s Texas Civil Statutes), is amended to read as follows:
“Section 34.
“(a) Whoever violates Section 32 or Section 33 of this Act commits an offense.
“(b) An offense under this section is a Class A misdemeanor.”

Appellant argues that since the provisions of Section 34 as applied to this prosecution were repealed by Senate Bill 154, there is no statute presently in existence to support her prosecution under this information.

As hereinafter noted, the effect of Senate Bill 154 was to provide that offenses deleted by the amendment are now chargeable under the offense of theft as.set forth in V.T.C.A. Penal Code, Sec. 31.03. Thus, under certain circumstances the offense may be a felony. It should be noted that Senate Bill 154 does not contain a savings clause within its provisions. The appellant argues that this is a clear indication that the Legislature intended to forgive all prior criminal conduct which had formerly been a violation of Art. 695c, Sec. 34, V.A.C.S.

The State urges that the savings provision of the Texas Code Construction Act, Art. 5429b-2, Sec. 3.11, V.A.C.S., is a general savings provision that allows continued prosecution for acts committed prior to the effective date of Senate Bill 154.

At common law the rule was that in the absence of an effective savings provision the repeal of a criminal statute operated to bar prosecution for earlier violations of the statute whether the prosecutions are pending or have not yet begun at the time of the repeal. The rule is based on the theory that the Legislature by its repeal has indicated an intention that the conduct in question shall no longer be prosecuted as a crime. United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763 (1934); United States v. Tynen, 78 U.S. (11 Wall.) 88, 20 L.Ed. 153 (1871). See generally W. Lafave & A. Scott, Criminal Law, Sec. 13 (1972).

Texas has followed the common law rule.

“If the statute is repealed pending prosecution without a savings clause, no punishment can be inflicted, although the act was done while the law was in force. The prosecution is ‘pending’ though the case is on appeal. Wall v. State, 18 Tex. [682] 683; Green [Greer] v. State, 22 Tex. 588; Shepherd [Sheppard] v. State, 1 [Tex.] App. 522; Hubbard v. State, 2 [Tex.] App. 506; Tuton v. State, 4 [Tex.] App. 472; Halpin [Halfin] v. State, 5 [Tex.] App. 212; Whisenhunt v. State, 18 [Tex.] App. 491; Kenyon v. State, 31 [Tex.] Crim. 13, 23 S.W. 191 (pending appeal); Eichlitz v. State, 39 [Tex.] Crim. 486, 46 S.W. 643; Hall v. State, 52 [Tex.] Crim. 195, 106 S.W. 149.” 1 Branch’s Ann.Penal Code, 2d Ed., Sec. 20, p. 21 (1956). See 22 C.J.S. Criminal Law § 27, 75 Am.Jur.2d Statutes, § 418, 16 Tex. Jur.2d Criminal Law, § 13.

In Williams v. State, 476 S.W.2d 307 (Tex.Cr.App.1972), the defendants were convicted for operating an open saloon. This Court held that where the statute making it unlawful for any person to operate or assist in operating an open saloon was repealed by a 1971 legislative amendment, there was no basis for the prosecution. The defendants were charged with committing the offense of operating an open saloon on or about September 9, 1969, but their convictions in 1970 had not become final and the conduct was no longer an offense under any statute. See also Perez v. State, 480 S.W.2d 687 (Tex.Cr.App.1972).

In the case of Sekt v. Justice’s Court, 26 Cal.2d 297, 159 P.2d 17, 167 A.L.R. 833, cert. denied 326 U.S. 756, 66 S.Ct. 96, 90 L.Ed. 454 (1945), the Supreme Court of California was faced with a situation similar to that in the instant case. The defendant was charged with conspiracy to commit a misdemeanor, which crime was itself a misdemeanor at that time under California law. While the defendant’s case was pending, the California Legislature determined that conspiracy to commit a misdemeanor should be punished in certain instances as a felony. The amendment did not come within the general savings provision of the California Government Code. The defendant argued, as does the appellant herein, that the effect of the legislative enactment was to pardon him for his prior criminal act. The California Supreme Court recognized the common law rule of abatement but held that “To imply a saving clause in such a situation is simply to give effect to the obvious intent of the Legislature.”

Citing Sekt v. Justice’s Court, supra, and cases from Indiana, Kansas, Kentucky, Louisiana, Missouri, and North Carolina, Wharton’s Criminal Law and Procedure, infra, after acknowledging the common-law rule, states:

“A substantial number of cases, however, has ruled that an amendment prescribing for a particular kind of crime greater punishment than was prescribed by the statute thereby amended does not operate as a repeal of the earlier provision, so far as pending prosecutions or criminal liability for a violation committed prior to the effective date of the amendment are concerned, but that on the contrary the earlier provision proscribing punishment remains in force as to offenses committed prior to the time the amendment becomes effective and may thereafter be applied to the prosecution and sentencing of such prior offenders. In so holding, the courts consider that such an amendment increasing punishment is manifestly intended to operate prospectively only rather than retrospectively, and that to effectuate the intent of the Legislature such prospective operation for a saving clause as to prior offenses may properly be implied.” R. Anderson, 1 Wharton’s Criminal Law and Procedure, Section 22, pp. 49, 50 (1957).

Article 13 of-the former Penal Code provided that if the penalty for any offense was increased by subsequent law, the defendant would be punished under the previous law. If, on the other hand, the subsequent law mitigated the punishment for a particular offense, the second law would automatically apply unless the defendant elected at time of trial to receive the penalty proscribed by the old law. Worley v. State, 485 S.W.2d 789 (Tex.Cr.App.1972). In accordance with the common-law rule, this provision also provided that if the statute were repealed and no other penalty was substituted, offenders against the repealed law were exempt from punishment except where a conviction had become final prior to the repeal. See also Art. 14, V.A.P.C. (1925); Mendoza v. State, 460 S.W.2d 145 (Tex.Cr.App.1970); Waiter v. State, 460 S.W.2d 147 (Tex.Cr.App.1970).

This specific savings clause in the old Penal Code was repealed by Acts 1978, 63rd Leg., p. 991, ch. 399, § 3(a), eff. Jan. 1, 1974. Two recent savings clauses, one general and the other specific, are now in effect. In 1967, the 60th Texas Legislature passed the Code Construction Act, Art. 5429b-2, V.A.C.S., to provide guidelines for the Texas statutory revision program set out in Art. 5429b-l, V.A.C.S. The Code Construction Act contains a general savings clause that applies to all reenactments, revisions, amendments, and repeals of all Texas codes. See Art. 5429b-2, Secs. 1.02, 3.11, V.A.C.S. The general savings clause of the Code Construction Act, however, is inapplicable to the new Penal Code because a specific savings clause was provided by the Legislature. Acts 1973, 64th Leg., ch. 399, § 6, eff. Jan. 1, 1974. See, Comment, The Texas Penal Code’s Savings Clause, 8 St. Mary’s L.J. 175 (1976).

In Jones v. State, 552 S.W.2d 836 (Tex.Cr.App.1977), this Court held that the defendant could not be prosecuted under the general theft provisions of V.T.C.A. Penal Code, Sec. 31.03, because the specific acts charged were also proscribed by Sec. 34 of the Public Welfare Act of 1941. Article 695c, V.A.C.S. In Jones, the defendant was charged with theft because she had applied to the Texas Department of Public Welfare for “Aid to Families with Dependent Children” and on three separate occasions fraudulently represented that she was not employed. As a result of this misrepresentation, she received overpayments totaling $703.00. Although the dollar amount is not specified in the information before us in the instant case, the offense appears to be identical to that described in Jones. In Jones, this Court observed “that appellant’s conduct was in violation of both statutes.” This Court specifically found “no evidence that the civil statute was repealed, impliedly or otherwise, by the enactment of the new Penal Code,” (footnotes omitted) and concluded that the prosecution should have been brought under the Public Welfare Act, not under the Penal Code. The Jones opinion also recognized that the specific criminal provisions formerly contained in Sec. 34 of Art. 695c, V.A.C.S., had been repealed by Senate Bill 154 since the conviction from which that appeal was taken. Thus, this Court, at a time after the effective date of Senate Bill 154, held that prosecution in Jones should have been brought under Art. 695c, Sec. 34, V.A.C.S., where the prohibited conduct occurred prior to the amendment set forth in Senate Bill 154.

It is clear that conduct occurring after May 25, 1977 (the effective date of Senate Bill 154), formerly denounced as welfare fraud is properly chargeable under the theft provisions of V.T.C.A. Penal Code, Sec. 31.03. A comparison of old Sec. 34 of Art. 695c, V.A.C.S., which provided for a maximum penalty of a $100.00 fine or two years’ confinement or both, and V.T.C.A. Penal Code, Sec. 31.03, reveals that in some circumstances the penalty will now be reduced and in other circumstances it will be significantly increased. For example, where, as in Jones, the defendant fraudulently misrepresented her employment status and received overpayment from the Department of Public Welfare totaling more than $200.00 but less than $10,000.00, the defendant would now be chargeable under V.T.C.A. Penal Code, Sec. 31.03(d)(4)(A), a third-degree felony. The maximum punishment would be ten years’ confinement or a $5,000.00 fine or both. V.T.C.A., Penal Code, Sec. 12.34. If, on the other hand, the amount obtained is at least $20.00 but less than $200.00, the offense under V.T.C.A. Penal Code, Sec. 31.03(d)(3) is a Class A misdemeanor carrying maximum penalty of a $2,000.00 fine or one year in jail or both. V.T.C.A. Penal Code, Sec. 12.21. It is obvious, therefore, that the effect of Senate Bill 154 is to avoid the effect of this Court’s ruling in Jones v. State, supra, and in certain cases to elevate the offense to that of felony theft.

To accept the proposition urged by the appellant that the effect of Senate Bill 154 is to abolish the offense of welfare fraud and to forgive or legislatively pardon anyone whose conviction was not final prior to May 25, 1977, is to ignore the clear effects of Senate Bill 154 and the holding of this Court in Jones v. State, supra, which recognized that conduct violative of Sec. 34 of Art. 695c was also violative of V.T.C.A. Penal Code, Sec. 31.03.

The question before us, however, is limited to whether the common-law rule of abatement is applicable to cases of welfare fraud committed prior to May 25,1977, and not yet reduced to final judgment.

The Texas Code Construction Act, Art. 5429b-2, V.A.C.S., provides as its purpose in Sec. 1.01 that:

“This Act provides rules to aid in the construction of codes (and amendments to them) enacted pursuant to the state’s continuing statutory revision program. The rules set out in this Act are not intended to be exclusive but are meant to describe and clarify common situations in order to guide the preparation and construction of the codes.”

The Code Construction Act in Sec. 1.02 provides that it is applicable to:

“(1) each code enacted by the 60th or a subsequent Legislature as part of the state’s continuing statutory revision program;
“(2) each amendment, repeal, revision, and reenactment of a code, or provision thereof, which amendment, repeal, revision, or reenactment is enacted by the 60th or a subsequent Legislature;
“(3) each repeal of a statute by a code; and
“(4) each rule promulgated under a code.”

The savings provision of the Code Construction Act, Sec. 3.11, provides in part as follows:

“(a) Except as provided by Subsection (b) of this section, the reenactment, revision, amendment, or repeal of a statute does not affect
“(1) the prior operation of the statute or any prior action taken under it;
“(2) any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred under it;
“(3) any violation of the statute, or any penalty, forfeiture, or punishment incurred in respect to it, prior to the amendment or repeal; or
“(4) any investigation, proceeding, or remedy in respect to any privilege, obligation, liability, penalty, forfeiture, or punishment; and the investigation, proceeding, or remedy may be instituted, continued, or enforced, and the penalty, forfeiture, or punishment imposed, as if the statute had not been repealed or amended.
“(b) If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment, revision, or amendment of a statute, the penalty, forfeiture, or punishment (if not already imposed) shall be imposed according to the statute as amended.”

Article 5429b — 1, V.A.C.S., established a “permanent statutory revision program” and provided for the systematic, continual study of the laws of this State and for formal revision on a topical or code basis to clarify, simplify and make generally more accessible the statutory law of this State. The revision of the Texas Penal Code was part of the statutory revision program which will eventually result in Texas statutory law being arranged in 26 topical codes. Freeman, The Texas Legislative Council’s Statutory Revision Program, 29 Tex.B.J. 1021 (1966).

The Public Welfare Act of 1941 is not a code within the meaning of either Art. 5429b-l, V.A.C.S., or Art. 5429b-2, V.A.C.S. However, this does not rule out the application of the Code Construction Act, Art. 5429b-2, since Sec. 1.02(3) provides that the Act is applicable to “each repeal of a statute by a code . . .” since the clear effect of Senate Bill 154 is to bring the complained-of conduct within the ambit of V.T.C.A. Penal Code, Sec. 31.03. See Jones v. State, supra.

Appellant’s reliance on Thiel v. Harris County Democratic Executive Committee, 534 S.W.2d 891 (Tex.Sup.1976), is misplaced. In Thiel, the Supreme Court only held that the computations of time provisions of the Code Construction Act were not applicable to Art. 13.12 of the Election Code, which specifically defined the deadline for filing applications for places on the ballot. Our opinion herein is not in conflict with Thiel, which did not involve the savings clause § 3.11 of the Code Construction Act.

Although involving the construction of the savings provision of the new Penal Code, Sec. 6b of Acts 1973, 63rd Leg., ch. 399, the case of Gobell v. State, 528 S.W.2d 223 (Tex.Cr.App.1977), is instructive. In Gobell, the defendant had been convicted of theft of a horse under Art. 1440 of the former Penal Code and placed on probation. Subsequently, his probation was revoked. On appeal, he argued that his initial conviction was void because Art. 1440, V.A.P.C., had been repealed and the offense of theft of a horse was not specifically included in the new Penal Code and therefore was no longer an offense. This Court summarily rejected the defendant’s argument, citing the general theft statute, V.T.C.A. Penal Code, Sec. 31.03. The same reasoning is applicable herein. Cf. Dockery v. State, 542 S.W.2d 644 (Tex.Cr.App.1976).

Although, as stated above, Texas has recognized the common-law rule of abatement in the absence of a savings provision, 1 Branch’s Ann.Penal Code, 2d Ed., Sec. 20 (1956), also states:

“The repeal of a statute pending prosecution does not exempt the offender from prosecution if the Legislature has otherwise declared. Wall v. State, 18 Tex. [682] 683; Chapin [Chaplin] v. State, 7 App. [87] 90.”

To paraphrase the opinion in Sekt v. Justice’s Court, supra, in the instant case when the appellant allegedly committed the acts set forth in the information, she violated the law. What she allegedly did is now a violation of a law. Whether characterized as welfare fraud or theft, the constituent elements of the offense are substantially the same. See Jones v. State, supra. The Legislature by the enactment of Senate Bill 154 has in effect provided that in certain circumstances welfare fraud may be prosecuted as a felony. To hold in a case such as this that by an amendment which increases the possible punishment in certain circumstances, the Legislature intended to pardon and to forgive all offenses committed before the amendment is to ascribe to the Legislature an intent that an analysis of the effect of the bill demonstrates could not have existed. Could it reasonably be argued that by removing the criminal provisions of Art. 695c, Sec. 34, V.A.C.S., thereby allowing prosecution under V.T.C.A. Penal Code, Sec. 31.03, the Legislature intended that prior to May 25, 1977, the crime of welfare fraud could be committed with impunity? The result urged by appellant would be that the crime of welfare fraud could have been committed with absolute impunity prior to May 25, 1977. This is an unreasonable construction in the face of the fact that after May 25, 1977, the offense could in some instances be a felony. This situation compels the conclusion that the Legislature intended that Senate Bill 154 should operate prospectively only and that past offenders should be prosecuted under the law as it existed prior to May 25, 1977. To imply the savings provision of the Code Construction Act, Art. 5429b-2, Sec. 3.11, is simply to give effect to the obvious intent of the Legislature to apply this provision.

The order of the trial court denying relief is affirmed.

      . The following excerpt from Sekt v. Justice’s Court, supra, reflects the basis for the decision:
      “This rule is well settled at common law and is accepted by most American jurisdictions. It is based on presumed legislative intent, it being presumed that the repeal was intended as an implied legislative pardon for past acts. . There are at least three situations to which the above rule, according to the great weight of authority, does not apply.
      “1. Where the statute passed after the offense is committed but before final judgment mitigates rather than increases the punishment . . . . (T)he cases quite uniformly hold that the offender may be punished under the new law, and that the repeal by amendment of the old punishment does not operate to free the offender from all punishment. All these cases [cited in the opinion], and the cases cited in them, base their conclusion that the offender who commits an offense before the amendment of the statute imposing the lighter sentence gets the benefit of the lighter punishment, upon the ground that it must have been the intention of the Legislature that the offender should be punished, and, since he can be constitutionally punished under the new statute, that should be done. . .
      “2. The second well-settled exception is that repeals by implication are not favored, and where a new statute is passed in a field already occupied by an older statute, the new statute will not be held to have repealed by implication the old statute as to crimes already committed at the time the new statute is passed. As to such crimes the offender will be punished under the old law and the new law will be held to be prospective in operation. .
      “3. The third well-settled exception is that where there is an outright repeal and a substantial reenactment, it will be presumed that the Legislature did not intend that there should be a remission of crimes not reduced to final judgment. . . .
      “This is the rule of decision in California and in the other states, even in the absence of legislative declaration. The cases have clearly established the rule that such restatement, without substantial change, neutralizes any repeal, express or implied. No saving clause or other expression of legislative intent is necessary to accomplish this result. The intent is derived from the fact and purpose of a restatement without change. . . .
      “This brings us to the exact situation here present — the legal effect of an amendatory act increasing the punishment. On this precise problem there is a conflict of authority. There is substantial authority to the effect that such an amendment repeals the old law and acts as a remission of all offenses not reduced to final judgment. ... In practically all these cases the courts expressed great reluctance in exonerating the offender, but apparently felt that the basic common-law rule, above referred to, compelled such result.
      “There is substantial and well-reasoned authority to the effect that where the later statute increases the punishment the Legislature has clearly demonstrated its intent that the act should be punished, and since the offender cannot be punished under the new law because of the ex post facto provision of the Constitution, he will be held under the old law. It is presumed from the very purpose of the amendment that the Legislature intended that all offenders should be punished, and a saving clause is implied.”
      In State v. Cline, 135 Mont. 372, 339 P.2d 657 (1959), the court adopted the reasoning of Sekt v. Justice’s Court, supra, and stated:
      “(T)he Legislature, by increasing the penalty, has clearly indicated that it intended that [the] particular offense be punished and not pardoned or forgiven.”
      Accord, State Ex Rel. Huffman v. District Court, 154 Mont. 201, 461 P.2d 847 (1969); State v. Rozzeli, 157 Mont. 443, 486 P.2d 877 (1971).
      See also, Ellenwood v. Cramer, 75 Idaho 338, 272 P.2d 702 (1954); State v. Banks, 108 N.H. 350, 236 A.2d 110 (1967).
      Cf. State v. Brittingham, 238 A.2d 346 (Del.Super.Ct.1968).

      . “The purpose in enacting a general savings statute is to establish a general legislative policy concerning the effect of repeals and to avoid having to include a specific savings clause in each act in order to carry out that policy. The explanation has been stated by the Arizona court thus:
      ‘The history of legislation . . . shows that through the inattention, carelessness, and inadvertence of the lawmaking body crimes and penalties have been abolished, changed, or modified after the commission of the offense and before trial in such material way as to effect many legislative pardons. To prevent, such mistakes and miscarriages of justice many of the states have enacted general saving statutes.’ [LaPorte v. State, 14 Ariz. 530, 533, 132 Pac. 563, 564 (1913).]
      “Essential to the success of the legislative program is the court’s adoption of the view that the general savings statute is applicable to all subsequent enactments. This the courts have done. The general savings statute is said to apply to a repealing act as if it were expressly incorporated in that act. It is also stated that all legislatures are presumed to act with a knowledge of existing law, including the general savings statute, and that they act with reference to all the laws. Thus, when a repeal is enacted without an express provision concerning existing rights, it is presumed that the legislature intended to afford the protection of the general savings statute.” [Footnotes omitted] Ruud, The Savings Clause — Some Problems in Construction, 33 Tex.L.R. 285, 298 (1955).


source: Caselaw Access Project

license: Public Domain

text:
    Claudell Everett SCOTT, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 54320.
    Court of Criminal Appeals of Texas, Panel No. 3.
    April 19, 1978.
    C. C. Divine, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Richard Bax, Asst. Dist. Attys., Houston, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for carrying a handgun. Punishment was assessed by the court at 60 days in jail.

On February 12, 1976, the appellant was stopped while driving a 1976 Cadillac by Houston Police Officers D. R. Sneed and L. V. Strebeck. Officer Sneed testified that appellant was stopped for a “routine driver’s license check.” After the car was stopped, Sneed approached the passenger’s side while Strebeck approached the driver. Appellant was asked for, and produced, his driver’s license. While Strebeck was checking on the appellant, Sneed testified he was observing the passenger. Sneed observed the passenger “with what seemed to be a bottle in his left hand” which he seemed “to be placing in . . . the arm rest.” Sneed asked the passenger to step from the car, then raised the arm rest and “found a bottle of Robitussin.” Sneed placed the passenger under arrest, searched him, and placed him in the patrol car for possession of Robitussin. After the passenger ■ was under arrest, Sneed “went back to my partner. . . . We decided to check outstanding traffic warrants on” the appellant. The check revealed that appellant had “one open traffic warrant.” The officers then “placed [appellant] under arrest, searched him, then placed him in the patrol car, went back to his vehicle and made a routine search.” The search revealed a .38 caliber pistol in the glove compartment of the car. Sneed then returned to the patrol car and asked who the pistol belonged to. Over a timely objection, the court allowed Sneed to testify that appellant answered that it was his.

Appellant complains that “The trial court erred in admitting evidence of statements made by the Defendant while under arrest.”

The State urges that “Appellant’s answer to the officer’s inquiry was clearly res ges-tae.”

In determining whether statements are admissible as res gestae, each case must be considered on its own merits. Patterson v. State, 458 S.W.2d 658 (Tex.Cr.App.)

We find the State’s reliance on Harryman v. State, 522 S.W.2d 512 (Tex.Cr.App.), to be misplaced. In that case, this Court found the defendant’s statement made while his person was being searched following arrest, “You know what it is. It is heroin,” in response to the officer’s question, “What is that?” to be admissible as res gestae of the arrest. In the instant case, the appellant had been arrested under a traffic warrant, his person searched, and placed in the police car before the search of the vehicle ever took place which resulted in the finding of the gun.

While the lapse of time between arrest and the inquiry which evoked the response is not shown, the record reflects the foregoing events transpired in the interim.

The record does not show that the appellant was properly advised as to his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Article 38.22, V.A.C.C.P. Further, since appellant’s statement did not lead to the discovery of any evidence conducing to establish guilt, it would be inadmissible as an oral confession under Art. 38.22, V.A.C.C.P. See Chase v. State, 508 S.W.2d 605 (Tex.Cr.App.); Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.); Young v. State, 547 S.W.2d 556; McGilvery v. State, 533 S.W.2d 24 (Tex.Cr.App.).

There is no showing in the record that appellant was excited or emotionally stimulated or in the emotional grip of any shocking event so as to render the incriminating statement of appellant a spontaneous utterance. See Smith v. State, 514 S.W.2d 749 (Tex.Cr.App.); Graham v. State, 486 S.W.2d 92 (Tex.Cr.App.). We conclude that the statement in question, made at a time while appellant was under arrest and in response to the officer’s inquiry, was not admissible as res gestae of either the offense or of the arrest, was inadmissible, and constitutes error which requires reversal. See Newberry v. State, 552 S.W.2d 457 (Tex.Cr.App.); Presswood v. State, 548 S.W.2d 398 (Tex.Cr.App.).

The judgment is reversed and the cause remanded.


text:
    Ex parte William G. LONG.
    No. 56264.
    Court of Criminal Appeals of Texas, En Banc.
    April 19, 1978.

      Michael W. White and 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, for the State.
   OPINION ON PETITIONER’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Petitioner contends on motion for rehearing that: (1) “The Court of Criminal Appeals did not have the entire record of the hearing of the writ of habeas corpus in order to review that record in forming its opinion” and (2) That this Court erred in finding the petitioner’s contention with regard to the DeWitt County conviction to be without merit “though the 24th District Court in DeWitt County had heard testimony of Petitioner’s incompetency to stand trial in Cause No. 5910 [24th District Court number], the Court failed to hold a separate hearing on such issue as required in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 14 L.Ed.2d 815 (1966) even though the testimony raised a bona fide doubt as to Petitioner’s competency to stand trial.”

The record reflects that at the hearing on petitioner’s post conviction writs the transcription of the court reporter’s notes of the trial which resulted in a mistrial in Cause No. 56,815 in Bexar County in November, 1958, was introduced into evidence as State’s Exhibit No. 8. This exhibit was not in the record when our original opinion was written, although Art. 11.07, § 2(d), V.A.C. C.P., requires that the convicting court transmit to the Court of Criminal Appeals “the petition, any answer filed, any motions filed, transcripts of all depositions and hearings, any affidavits, and any other matters such as official records used by the court in resolving issues.” The transcription of the court reporter’s notes in the Bexar County mistrial is now before us and we consider petitioner’s contentions herein in light of such exhibit.

The two convictions involve the murders of A. B. Lippman and his wife Mary Lippman on May 19, 1958. Petitioner was originally tried for the killing of A. B. Lippman in Cause No. 56,815 in the Criminal District Court of Bexar County with the late Judge M. D. “Buck” Jones presiding, in November, 1958. A mistrial was declared after the jury was unable to reach a verdict. After the mistrial, the court ordered a change of venue, and transferred both cases to the 24th Judicial District Court of DeWitt County. A trial in DeWitt County of Cause No. 56,815 (Bexar County number) resulted in a verdict of guilty, and punishment was assessed at 99 years. After that trial in DeWitt County, the remaining cause, Cause No. 56,816, was transferred back to Bexar County, where the petitioner entered a plea of guilty to the murder of Mary Lippman. Punishment was assessed at 99 years, with the sentence to run consecutively with the DeWitt County sentence. No appeals were taken from either conviction.

Petitioner is challenging both of these convictions. He originally filed separate writs in Bexar and DeWitt Counties. On January 9, 1976, after the post conviction writ was filed in DeWitt County, that cause was transferred to the 144th Judicial District Court of Bexar County (formerly known as the Criminal District Court of Bexar County) by order of the 24th Judicial District Court. Petitioner expressly agreed that both writs should be heard in a joint hearing before the 144th District Court.

In both instances, the petitioner complains of the failure of the trial court to conduct a separate hearing on the issue of his competence to stand trial. This contention is bottomed on the holding of the Supreme Court in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 14 L.Ed.2d 815 (1966). While the petitioner’s convictions occurred before the decision in Pate, this Court has held that Pate is retroactive. Ex parte Halford, 536 S.W.2d 230.

After the hearing on the writs, the court filed findings of fact and conclusions of law denying petitioner relief. This Court is not bound by such findings or conclusions of law. Ex parte Hagans, 558 S.W.2d 457, and cases there cited.

Evidence introduced at the hearing includes the transcription of the court reporter’s notes from the mistrial in Bexar County and the subsequent plea of guilty to the murder of Mary Lippman in Bexar County. The record reflects that the transcription of the court reporter’s notes from the trial in DeWitt County is no longer available.

The holding in Pate v. Robinson, supra, requires the court to hold a hearing on competency to stand trial whenever “the evidence raises a ‘bona fide doubt’ as to a defendant’s competence to stand trial.” The petitioner urges that there was sufficient indication of mental problems in each of his convictions to raise a “bona fide doubt” and thus require a hearing.

Since there is no transcription of the court reporter’s notes available for the conviction in DeWitt County, the petitioner presented testimony from several sources at the writ hearing to indicate that the evidence bearing on his mental state which was introduced in DeWitt County was substantially the same as that which was introduced at the original trial which resulted in a hung jury in Bexar County. Richard Keene, who was one of petitioner’s attorneys at the Bexar County mistrial and the DeWitt County conviction, testified that Mrs. S. R. Turner and Mrs. Ollie M. Wheeler testified at both of the trials. Keene said that their testimony was “substantially the same” at both trials and that he could “recall no basic differences in what they said.”

The record of the mistrial in Bexar County reflects that Mrs. S. R. Turner testified that she ran the Lindell Hotel. Mrs. Turner first met the petitioner when he was referred to her by the Alamo Mission. She allowed petitioner to stay in her hotel for four to six weeks and during that time she had the opportunity to observe his actions and his demeanor. Turner had also visited the petitioner “a number of times” while he was in jail awaiting trial. When questioned about petitioner’s sanity, she testified as follows:

“Q. And, from all of this, Mrs. Turner, have you formed any opinion as to the sanity or the insanity of Will Long?
“A. Yes.
“Q. What is that opinion?
“A. In my opinion, he is not sane.
“Q. He is not sane?
“A. No, he is not.
* * * * * *
“Q. Mrs. Turner, is this your opinion as to his present condition?
“A. Yes, it is.”

The record from the mistrial also contains testimony of Mrs. Ollie M. Wheeler, who testified that petitioner had lived in her house with her for three weeks. Mrs. Wheeler testified she had been an attendant at the State Hospital in San Antonio. When asked her opinion of the mental condition of the petitioner, she replied he was “insane.”

Keene also testified that the depositions which were introduced and read into evidence before the jury at the mistrial were also introduced in DeWitt County. Upon the proffer of each of the depositions, the prosecutor stated there was no objection by the State.

The first deposition introduced was that of Dr. Warren S. Wille, who was the Medical Director of the Psychiatric Clinic at the State Prison of Southern Michigan in Jackson, Michigan. Attached to the deposition, and read into evidence, was Dr. Wille’s “Final Discharge Summary” of the petitioner, dated April 5,1954, which said, in pertinent part:

“ . . .he would be classified as suffering from a sociopathic personality disturbance, antisocial reaction. His ego development has been very inadequate because of the extremely unfavorable home situation in which he grew up. This results in this subject showing some tendencies toward a schizophrenic reaction pattern. However, he has never actually had a psychotic break and cannot be considered insane at this time. Because of his poor ego development and inadequate self-control, his prognosis is very poor for ever making an adequate adjustment in free society.”

In the deposition, Dr. Wille said: “ . this man was not insane as this term is customarily used. However, it was apparent, from information obtained from him during psychiatric interviews, that he was a very maladjusted person who was almost certain to get in trouble again when he returned to free society.” Dr. Wille further stated that since he had not recently examined the petitioner he could reach no conclusion on his present mental state.

The deposition of Max Eugene Long, the petitioner’s uncle, reflected the following:

“ . . . he was very uncooperative. He had a serious accident when he was very small. He has got a scar on his forehead today that he got in infancy; and they didn’t think he would live at all at the time. He has never acted completely normal, never been completely normal since he was out of prison. He is very childish for a man of twenty-eight. He acted like a guy ten or eleven years old on a lot of different matters. He actually wanted to play with things kids would play with; go downtown and spend his money on things little children would buy.”

Long further stated he considered the petitioner’s “conduct and behavior” to be “abnormal.”

The deposition of Mrs. Margaret Long Horton, the petitioner’s aunt, was introduced. When asked to describe petitioner’s “physical or mental condition,” Mrs. Horton replied: “Acted childish all the time I knew him; he was injured in the head when young.” Mrs. Horton concluded by saying the petitioner’s “conduct and behavior was abnormal.”

The deposition of William Hugh Long, who identified the petitioner as his nephew, related the seriousness of the head injury to petitioner when he was a child.

The deposition of Thomas George Long, another of petitioner’s uncles, was also introduced. In the deposition, Long stated: “In my opinion, he is mentally unbalanced.” The deposition further stated that the petitioner’s “conduct and behavior from birth has been abnormal.”

The final deposition was from Maggie Estella Long, the petitioner’s grandmother. In the deposition she related that:

“Ten years ago, his mind went blank and wanted to kill Mike Lage in Marysville, Tennessee. He vomited and his eyes were blank. We had to put him to bed. He has had a mania for cars since a small child, which was beyond his control. He had an accident when two years of age, when his head was injured. He has been treated several times for mental disease. He has always been extremely emotional, and it grew worse at the death of his mother.
“He had periods of complete blackouts; he was highly emotional, was in the mental ward in Jackson, Michigan, at which time he was unbalanced. During blackouts — that is, before going completely blank — he would steal cars and drive them until the gas ran out.”

On cross-examination at the writ hearing, Richard Keene, the petitioner’s trial attorney, further testified that the trial in DeW-itt County was “very very similar to the first trial.” Keene said that Drs. Mullen, Keedy and Rogers “probably” testified in behalf of the State at the DeWitt County trial as they did in the first Bexar County trial.

The record of the Bexar County mistrial reflects that Dr. Brooks W. Mullen and Dr. David Keedy were both specialists in the field of neuro-psychiatry and had been appointed by the court to examine the petitioner. Dr. Will C. Rogers was a clinical psychologist who had administered extensive tests to petitioner. All three testified that in their opinion the petitioner was “sane” or of “sound mind” both at the time of the killings and at the time of trial.

As we noted earlier, Pate requires a hearing whenever the evidence before the court raises a “bona fide doubt” as to a defendant’s competency to stand trial. The evidence before a court to require a competency hearing need only be such as will raise the “bona fide doubt” referred to in Pate; it need not be conclusive on the issue. Bonner v. State, 520 S.W.2d 901; Moore v. United States, 464 F.2d 663 (9th Cir. 1972).

The State does not contest the fact that the petitioner offered all of the testimony at the DeWitt County trial relative to petitioner’s mental condition that had been previously introduced at the mistrial. The record before us does contain the charge of the court from DeWitt County. The charge reflects that the court instructed the jury on the issue of sanity at the time of trial. While this charge is not conclusive, it provides strong evidence that the issue of present competency was in fact raised by the evidence presented in that trial. See Ex parte Hagans, supra; Vardas v. State, 488 S.W.2d 467.

We hold that the evidence related above was sufficient to create a “bona fide doubt” as to petitioner’s competence to stand trial. It was thus reversible error for the court not to conduct a separate hearing to decide the issue. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, supra; Ex parte Hagans, supra; Ex parte Halford, supra; Carpenter v. State, 507 S.W.2d 794; Noble v. State, 505 S.W.2d 543; Vardas v. State, supra.

The State concedes the conviction in DeWitt County may be of “questionable validity” because no competency hearing was had, but calls our attention to the fact that petitioner’s attorneys in that trial made a decision not to request a separate hearing as a matter of trial strategy. It is well established that the fact that no request or demand for a hearing was made by the accused is immaterial. Where evidence before the court raises a “bona fide doubt” concerning a defendant’s competency, due process requires the trial judge on his own initiative to halt the trial and conduct a hearing. Bonner v. State, 505 S.W.2d 901, and cases there cited. In Ex parte Hagans, supra, this Court quoted with approval the following from Taylor v. United States, 282 F.2d 16, 23 (8th Cir. 1960):

“ . . . if one is mentally incompetent, then, by definition, he cannot expect to raise that contention before the trial court and thus cannot be prejudiced by his failure to do so.”

The petitioner’s failure to request a separate hearing did not alter the court’s duty to hold such a hearing when the evidence indicated one was called for.

There are two additional reasons the petitioner is entitled to relief from the DeWitt County conviction. First, this Court has found it to be a violation of due process any time the issue of present competency is submitted to the same jury that determines the merits. In Ex parte Hagans, supra, this Court said:

“The necessity of the separate hearing on the question of competency is so that the determination of an accused’s competency can be made ‘uncluttered by the evidence of the offense itself.’ Townsend v. State, 427 S.W.2d 55, 63 (Tex.Cr.App.1968). Such separate uncluttered hearing before a jury makes it easier to determine fairly the issue of competency without introducing facts which might tend to cloud the issue at hand, ‘facts which alone might well so stir the minds of the jury as to make difficult the exercise of calm judgment upon the question of present [incompetency],’ Ramirez v. State, 92 Tex.Cr.R. 38, 241 S.W. 1020, 1021 (1922). See also Lee v. Alabama, 386 F.2d 97 (5th Cir. 1967).
“While Article 46.02, Vernon’s Ann.C. C.P., was not in effect in 1961, the decision in Ramirez had been made, and the later decisions in Townsend and Morales [427 S.W.2d 51] are applicable. Due process was violated in the instant case by submitting the issue of competency to the same jury on the trial on the merits.”

See also Cavender v. State, 515 S.W.2d 277; Noble v. State, supra; Perryman v. State, 494 S.W.2d 542.

In the instant case, the issue was submitted along with the rest of the jury charge. The jury returned a special verdict finding the petitioner was “sane” at the time of trial in addition to their verdict finding him “guilty” and assessing punishment at 99 years. This is a violation of due process, and is in itself sufficient grounds upon which to grant relief.

The final reason to grant relief from the DeWitt County conviction involves the standard which was used to determine petitioner’s competency. In the jury charge, the court defined “insanity at the time of this trial” as follows:

“inability at the time of this trial of the defendant to understand the difference between right and wrong, or inability in mind to understand and appreciate the nature of the act charged against him in the indictment and the consequence thereof, or inability of the defendant in mind to make a rational defense concerning said act or offense.”

This charge is based on the M’Naghten standard which was then used to determine sanity at the time of the act.

The proper test of legal competence to stand trial is whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Ex parte Hagans, supra, and cases there cited.

It is a violation of due process to measure competency to stand trial by any standard besides that set forth in Dusky. In Ex parte Hagans, supra, this Court quoted with approval the following from Bruce v. Estelle, 483 F.2d 1031 (5th Cir. 1973):

“ . . .we are firm in the conclusion that the M’Naghten rule cannot be used as a standard to determine competency to stand trial. Again we emphasize that the appropriate standard required by the federal constitution is set forth with simple clarity in Dusky v. United States, supra.
* * * * * *
“The Dusky standard emanates from and is given vitality by the due process clause of the fifth amendment.”

We conclude that petitioner is entitled to the relief prayed for in the DeWitt County conviction.

Our consideration of the record in the mistrial in Cause No. 56,815 in November, 1958, does not alter the correctness of our holding on original submission that the court did not err in failing to hold a separate hearing on the issue of competency when petitioner entered a plea of guilty on February 25, 1959, in Cause No. 56,816, where he was charged with the murder of Mary Lippman. Not only was there an absence of evidence of incompetency at this trial, the record reflects that the State called Dr. J. B. Polka, who testified that his specialty was psychiatry, that he had examined petitioner, and that in his opinion petitioner was sane. In light of the foregoing, we cannot find that the judge was in error in failing to hold a hearing on competency to stand trial based on conflicting testimony regarding petitioner’s competency at a trial held four months earlier.

Petitioner’s motion for rehearing is granted and the relief sought as to the conviction in DeWitt County in Cause No. 5910 under indictment No. 56,815 out of Bexar County is granted. In light of the fact that this case has been transferred back to the 144th District Court of Bexar County, petitioner is ordered to be released to the Sheriff of Bexar County to answer indictment in Cause No. 56,815.

It is so ordered.

      . While Pate would not require a jury trial on the issue, Texas law in effect at the time of petitioner’s trial would. See Ex parte Hagans, supra; Townsend v. State, 427 S.W.2d 55.

      . The M’Naghten rule is no longer the standard for determining criminal responsibility in Texas. See V.T.C.A., Penal Code, Sec. 8.01.


author: ODOM, Judge.

text:
    Ex parte Edwin H. GORTON.
    No. 57608.
    Court of Criminal Appeals of Texas, Panel No. 3.
    April 19, 1978.

      Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ODOM, Judge.

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

Petitioner was convicted of burglary in 1954, and punishment, enhanced under Art. 63, V.A.P.C., was fixed at life.

The convicting court held a hearing on petitioner’s application and entered findings of fact and conclusions of law. The record supports the trial court’s finding that petitioner was indigent at his 1954 trial and that he was not represented by counsel at sentencing. Consequently, he was denied appellate review of his conviction. The State stipulated and the trial court found that at this date it would be impossible to provide an adequate record for an out-of-time appeal.

We find the trial court’s recommendation that relief be granted is supported by the prior decision of this Court in Ex parte Rains, 555 S.W.2d 478.

The judgment of conviction and the sentence in Cause No. 19,325 in the Criminal District Court of Jefferson County, styled The State of Texas vs. Edwin H. Gorton, are ordered set aside, and petitioner is ordered remanded to the Sheriff of said county to answer the indictment pending against him in said cause. A copy of this opinion shall be sent to the Texas Department of Corrections.

It is so ordered.


author: PHILLIPS, Judge.

text:
    Ex parte Clint Elmer PARKER.
    No. 58331.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 19, 1978.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

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

Petitioner was convicted of the offense of robbery by assault under the Old Penal Code in Cause No. 198259 using a prior conviction alleged for enhancement under Art. 62, V.A.P.C. and was sentenced to a mandatory life term in the Department of Corrections. The appeal in that conviction was affirmed in an unpublished per curiam opinion. See Parker v. State, No. 49,736 (Tex.Cr.App.1975).

Petitioner filed an application for writ of habeas corpus in the trial court, alleging that the indictment for robbery by assault was fatally defective for failing to allege “ownership of the property”.

In reviewing the record before this Court and the indictment in this cause, we are in agreement with the petitioner that the indictment for robbery by assault is fatally defective for the same reasons as set out in Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); Ex parte Fontenot, 550 S.W.2d 87 (Tex.Cr.App.1977); Ex parte Haywood, 550 S.W.2d 292 (Tex.Cr.App.1977).

A petitioner may challenge fundamentally defective indictments by way of post-conviction application for writ of habe-as corpus. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Jones, 542 S.W.2d 179 (Tex.Cir.App.1977); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975).

The relief prayed for is granted and the prosecution under this indictment is ordered dismissed.


text:
    Ex parte John L. SHANNON.
    No. 58332.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 19, 1978.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   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 convicted of the offense of robbery by assault under the old Penal Code in Cause No. 10,826 on his plea of guilty to the court. A 10-year term of imprisonment was assessed, and no appeal was perfected.

Petitioner has filed his application for writ of habeas corpus in the trial court, contending that the indictment in this case is fundamentally defective for the reasons set out in Lucero v. State, Tex.Cr.App., 502 S.W.2d 128, and Bouie v. State, Tex.Cr. App., 528 S.W.2d 587. The trial court made findings of fact and conclusions of law and recommended that the application for writ of habeas corpus be granted.

In reviewing the record before this Court and the indictment in this cause, we are in agreement with petitioner that the indictment for robbery by assault is fatally defective for the same reasons set out in Lucero v. State, supra, and Bouie v. State, supra. See also Batro v. State, Tex.Cr.App., 531 S.W.2d 614; Page v. State, Tex.Cr.App., 532 S.W.2d 341; Jones v. State, Tex.Cr.App., 535 S.W.2d 184. These cases held that an indictment which failed to allege the party to whom the property allegedly taken belonged (in the robbery) was fundamentally defective.

A petitioner may challenge fundamentally defective indictments by way of a post conviction application for writ of habe-as corpus. See Standley v. State, Tex.Cr.App., 517 S.W.2d 538; Ex parte Roberts, Tex.Cr.App., 522 S.W.2d 461; Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266; Ex parte Jones, Tex.Cr.App., 542 S.W.2d 179; Ex parte Davis, Tex.Cr.App., 547 S.W.2d 43.

The relief prayed for is granted, and the prosecution under this indictment is ordered dismissed.


text:
    Richard Charles SIMMONS, Appellant, v. The STATE of Texas, Appellee.
    No. 57366.
    Court of Criminal Appeals of Texas, Panel No. 3.
    April 19, 1978.
    Howard B. Law, Dallas, for appellant.

      Henry Wade, Dist. Atty., Ronald D. Hinds, Les S. Eubanks, Jr. and Paul D. Macaluso, Asst. Dist. Attys., Dallas, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated robbery. V.T.C.A. Penal Code, Sec. 29.03. The court assessed punishment at 22 years.

The record reflects between 9:00 and 9:15 p. m. on May 4,1975, Marilyn Ragsdale was employed as the manager of a Dairy Queen in Dallas County. She observed three males walk past the drive-in service window, hesitate, and then proceed around the front of the building and enter through the front door. One of the three, identified as co-defendant Jessie Gay, went immediately to the restroom area in back. Another went directly to the drinking fountain. The third, identified as the appellant, approached the witness and employee Jennifer Wilson at the service counter. After placing his order, the appellant pulled a gun and said, “Just be cool.” He ordered the cash drawer opened and the money be removed. Jessie Gay, who had gone to the restroom area, left the store and stationed himself near the drive-in window and appeared to be acting as lookout. During the course of the robbery the appellant stated to Ragsdale, “I have a monkey on my back, $100 a day.” ' After the robbery, the appellant, co-defendant Gay, and the third man all fled together. „

In three grounds of error, the appellant alleges that the trial court erred in allowing Charles Pierce, the unit supervisor for the probation department of Criminal District Court No. 5 of Dallas County, to testify that on the basis of the probation department’s records the appellant was a heroin user.

The appellant had taken the stand in his own defense and testified that he was at home with his wife at the time the robbery occurred. He denied any dependency on narcotics or any use of narcotics. Barbara Simmons, the appellant’s wife, supported his alibi and on direct examination denied her husband used narcotics.

The complaining witness had testified that during the course of the robbery the appellant stated, “I have a monkey on my back, $100 a day.” The appellant and his wife had both denied the appellant used narcotics. Appellant’s statement made while he was not under arrest or in custody to the probation department inconsistent with his testimony in court was admissible for purpose of impeachment. See Cunningham v. State, 488 S.W.2d 117.

This Court has consistently held that the Texas Business Records Act, Art. 3737e, V.A.C.S., is applicable to criminal cases. Coulter v. State, 494 S.W.2d 876; Dalton v. State, 516 S.W.2d 937. The cases hold that this exception to the hearsay rule is to be liberally construed, provided the proper predicate is laid. Coulter v. State, supra; Morgan v. State, 503 S.W.2d 770; Williams v. State, 508 S.W.2d 83.

Pierce testified that he was unit supervisor of the probation department and that the records were kept in the regular course of business. He also made it clear that although he did not have personal knowledge of the entries, the personnel who made the entries did have personal knowledge of the facts therein. Pierce related that the statements in question by the appellant were made as part of probation interviews and that the entries were made on a day-to-day basis after the interviews. According to Pierce, the probation officer questions every probationer in every report about the use of drugs and appellant’s probation record reflected, “He admitted using drugs several times and also the use of heroin.”

The proper predicate was laid whereby Pierce could testify from probation department records that appellant had admitted narcotics use to the probation department. Art. 3737e, V.A.C.S.; Morgan v. State, supra; Coulter v. State, supra.

No error is shown in the admission of the complained-of testimony.

The judgment is affirmed.


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

text:
    Silvestre FERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 54598.
    Court of Criminal Appeals of Texas, Panel No. 3.
    April 26, 1978.
    Dick Stengel, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Thomas C. Roepke, Asst. Dist. Atty., El Paso, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from conviction for two separate counts of aggravated robbery. Punishment was assessed by the jury at 12 years for the first count and 14 years for the second count.

Appellant challenges the sufficiency of the evidence to support each of the convictions. Specifically, appellant contends that “the proof and evidence offered by the State ... is insufficient to support the conviction” and that “in view of the testimony of Appellant and other defense witnesses, the State has failed to meet their burden of proof.”

In Banks v. State, Tex.Cr.App., 510 S.W.2d 592, this Court set down the standard for reviewing the sufficiency of the evidence:

“In reviewing the sufficiency of the evidence to support the conviction, we must view the evidence in the light most favorable to the verdict. In doing so, the verdict will be sustained if there is any evidence which, if believed, shows the guilt of the accused.”

See also: Valore v. State, Tex.Cr.App., 545 S.W.2d 477; Clark v. State, Tex.Cr.App., 543 S.W.2d 125; Esquivel v. State, Tex.Cr.App., 506 S.W.2d 613; Resendez v. State, Tex.Cr.App., 495 S.W.2d 934; White v. State, Tex.Cr.App., 478 S.W.2d 506; Pogue v. State, Tex.Cr.App., 474 S.W.2d 492.

The first count of the indictment alleged the armed robbery of Francisco Armando Ramirez, who was a clerk at the Circle K store at 6203 Airport in El Paso. Ramirez testified that at about 9:30 p. m. on February 9,1975, the appellant entered the store, got a six-pack of beer from the cooler, and brought it to the check-out stand. After Ramirez had rung up the purchase, the appellant “produced a small pistol and asked me for the money from that first register . . . .” The appellant spoke to Ramirez in Spanish. Appellant then asked for the money “from underneath the tray,” and Ramirez replied there was nothing there. Appellant then directed Ramirez to a second cash register. Ramirez testified that the second register was equipped so that when certain bills were removed an alarm was triggered. Ramirez gave these bills to the appellant. Appellant then demanded money from underneath the tray, and Ramirez lifted the tray to show him there was nothing there. Appellant finally demanded the money in the safe. Ramirez gave him a “dummy bag which is full of papers” from the safe. Appellant then left the store, telling Ramirez “not to look.” Ramirez testified that about $35 was taken.

Ramirez testified that he was certain the man who robbed him was the appellant. Ramirez made an in-court identification of the appellant. He further testified that he had been shown two “photo lineups.” In the first one he identified a seven-year-old picture of appellant as a “younger version” of his assailant. The second photo lineup contained a current picture of appellant, and Ramirez positively identified him. The record also indicates that Ramirez viewed an actual lineup, and again identified the appellant.

The second count of the indictment alleged the armed robbery of Fabian Lozano, who was a clerk at the Jimbo’s store located at Dyer and Thomason Streets in El Paso. Lozano testified that between 10:00 and 10:15 p. m. on February 9, 1975, the appellant entered the store and went to the beer cooler. Appellant took a six-pack of beer and went to the check-out stand. As Loza-no started to ring up the purchase, appellant displayed a small .22 caliber automatic pistol and told Lozano to “give me the money.” Lozano put the money from the register in a paper sack. Appellant then made Lozano lift the tray to see that there was no money under it. Appellant then asked if there was a safe in the back room and Lozano replied that there was not. Appellant finally asked if there were any more money under the counter. Lozano replied that there was not even though in fact there was. At this point, Lozano testified that the appellant “got a little angry and kind of moved his gun and started shaking.” Lozano started to give him the money below the counter, but before he could do so, the appellant left the store. Lozano immediately called the police, and before he had finished the call a police car arrived. Lozano testified that appellant took at least $265.

Lozano made a positive in-court identification of the appellant. Lozano was shown two photo lineups, and both times he positively identified pictures of the appellant. Lozano was also shown an actual lineup and identified the appellant. No objection was voiced to this testimony.

The State further presented the testimony of Officer Duane Mackelroy of the El Paso Police Department. Mackelroy testified that on the night of February 9, 1975, he and his partner were driving by the Jimbo’s at Thomason and Dyer. As they drove by, Mackelroy “looked inside the Jim-bo’s and I saw a Mexican male standing in there with dark glasses.” Mackelroy saw the clerk in the store “lifting up the box out of the cash register.” The policemen turned around and returned to the store “within a minute” of the time they had seen the above events. They proceeded to search for the robber but were unable to find him. Mackelroy made an in-court identification of the appellant as the man he had seen standing at the counter of the store.

In his brief, the appellant refers us to the testimony of several defense witnesses who testified to an alibi for the appellant. All of the testimony mentioned was before the jury for their consideration. It was within the province of the jury to accept or reject any or all of the testimony from witnesses for either the appellant or the State. In the instant case the jury sought to reject the alibi witnesses’ testimony as they had a right to do.

We hold that the evidence set forth above is sufficient to sustain the two convictions.

Appellant next complains that “the trial court erred in not allowing evidence of the lie detector test which revealed appellant did not commit the charged offenses.”

The appellant’s bill of exception reflects that he requested to take a polygraph examination. The State agreed to allow the test, but only if appellant would first agree to be examined by a psychiatrist to see if he was a “good subject” for a polygraph. Appellant was examined by Dr. Ben Hill Pass-more, a licensed psychiatrist, who found “no reason why a polygraph test would not be valid.” The polygraph examination was administered by Reilly W. Taitte, Jr. Based on the polygraph examination, Taitte gave his opinion that “the subject did not commit either of the two alleged robberies on the date in question.” The trial court excluded all such evidence.

It is a very well established rule that results of polygraph examinations are inadmissible for all purposes. King v. State, Tex.Cr.App., 511 S.W.2d 32; Romero v. State, Tex.Cr.App., 493 S.W.2d 206; Humphrey v. State, Tex.Cr.App., 479 S.W.2d 51; Lee v. State, Tex.Cr.App., 455 S.W.2d 316; Hart v. State, Tex.Cr.App., 447 S.W.2d 944; Watkins v: State, Tex.Cr.App., 438 S.W.2d 819; Wall v. State, Tex.Cr.App., 417 S.W.2d 59; Placker v. State, 171 Tex.Cr.R. 406, 350 S.W.2d 546.

Appellant contends this general rule should not apply when there is evidence that the State “agreed, stipulated, participated, encouraged, aided [or] abetted” in the test.

We first note that there is no evidence that the State did anything but allow the test to take place. When the appellant offered this contention to the trial court, the attorney for the State replied:

“ . . . for the purpose of the record, only we would like to make it clear that the State’s attorney consented to the test being conducted but there was [sic] no other agreements nor arrangements . other than consenting to the test being conducted.”

Even if there had been a formal agreement, the testimony would not have been admissible. In Romero v. State, Tex.Cr.App., 493 S.W.2d 206, the defendant, his attorney, and the attorney for the State all agreed in writing before hand that the results of a polygraph examination would be admissible. This Court held:

“ . . . the results of polygraph tests should not be received into evidence, over objection, even if there had been a prior agreement or stipulation. Such a stipulation does nothing to enhance the reliability of such evidence when offered by either side on the issue of the guilt or innocence of the accused.” [Emphasis added.]

See also Robinson v. State, Tex.Cr.App., 550 S.W.2d 54; Lewis v. State, Tex.Cr.App., 500 S.W.2d 167. The trial court properly excluded the polygraph testimony.

The judgment is affirmed.

ROBERTS, Judge,

concurring in part and dissenting in part.

I agree with the Panel’s conclusion that the record does not reflect that the State agreed or stipulated with the appellant that the results of the polygraph examination would be admissible if the appellant would first agree to be examined by a psychiatrist. However, had the State entered into such an agreement or stipulation, I cannot but conclude that evidence of the results of the polygraph would have been admissible. Moreover, I would go even further and conclude that regardless of the presence or absence of a stipulation, evidence of polygraph results should be admissible in the courts of this State. However, due to the facts of this case, I conclude that the trial judge’s improper exclusion of defensive evidence was harmless beyond a reasonable doubt.

We have consistently held that evidence of the results of lie detectors or polygraphs is not admissible on behalf of either the State or the defendant. Robinson v. State, 550 S.W.2d 54 (Tex.Cr.App.1977); King v. State, 511 S.W.2d 32 (Tex.Cr.App.1974); Lewis v. State, 500 S.W.2d 167 (Tex.Cr.App.1973); Romero v. State, 493 S.W.2d 206 (Tex.Cr.App.1973). This is in accord with the near unanimous view of the courts of this country that the results of a polygraph are not admissible. However, as noted in Romero v. State, supra at 211, there is a decided split among the courts as to whether a valid stipulation will authorize the admission of the results of a polygraph examination. See also State v. Chambers, 240 Ga. 76, 239 S.E.2d 324 (1977).

In State v. Chambers, supra, 239 S.E.2d at 325, the Georgia Supreme Court stated:

“We acknowledge that doubt exists as to the complete reliability of lie detector tests, and we share at least a modicum of that doubt. Operators may be unskilled, and results may be ambiguous and subject to arbitrary characterization. Of course, by cross examination counsel may show any vagueness of the electronic indications or any subjectiveness of the examiner’s interpretations, as well as exploring conditions other than the subject’s untruthfulness which could have produced such responses.
“However, despite some problems posed by polygraphs, McCormick warned more than 20 years ago that ‘We cannot in our hearts be so confident of the reliability of the present system of resolving conflicts in testimony by impeachment, cross-examination and inferences from demeanor, that we can afford to reject scientific aid in the task.’ McCormick, Evidence, Sec. 174 (1954 Ed.). A more recent writer has phrased this thought in more urgent language: ‘If the judicial system is to fulfill its duty of searching for truth and maintaining integrity, it must commence a war against perjury. The war cannot be won with weapons restricted to cross-examination, inferences from demeanor, and other relics from the crossbow era of Henry II. * * * There is no tenable reason why qualified polygraphers should not be welcomed by courts confronting credibility questions; clearly, polygraphy “appears to have something valuable to add to the administration of justice.” ’ Tarlow, admissibility of Polygraph Evidence in 1975, 26 Hastings L.J. 917, 920-921 (1975). (Footnotes omitted).”

I unequivocally agree with the foregoing, but I cannot restrict my belief that evidence of the results of polygraph examinations is admissible to those situations where both parties have stipulated to the admissibility of such evidence.

Indeed, the current Texas view is completely devoid of logic. Article 37.071, Vernon’s Ann.C.C.P., provides for the procedure in capital cases in Texas. Article 37.-071(b) sets forth three essential questions for the jury to answer. The death penalty is imposed only when a jury unanimously answers all three questions in the affirmative. The second question — Article 37.-071(b)(2) — requires a jury to ascertain “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” In Collins v. State, 548 S.W.2d 368 (Tex.Cr.App.1976), we held that testimony by psychiatrists whether there was a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society was permissible. See also Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976). Thus, we there sanctioned testimony by “doctors of the mind” addressing the probability of future acts of violence by a defendant. In Smith v. Estelle, 445 F.Supp. 647 (N.D.Tex.1977), Judge Porter stated:

“Even a cursory review of the psychiatric literature reveals that psychiatrists differ widely in their diagnosis of the same patients. The testimony of psychiatric experts is receiving increased judicial scrutiny because of its unreliable and invalid nature. See United States ex rel. Wax v. Pate, 298 F.Supp. 164 (N.D.Ill.1967), affirmed 409 F.2d 498 (7th Cir.), cert. denied, 396 U.S. 830, 90 S.Ct. 83, 24 L.Ed.2d 81 (1969). Cf. Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).
“This judicial scrutiny reflects skepticism among experts in the field itself. In 1969 Professor Dershowitz reviewed studies on the predictions of anti-social conduct and concluded:
‘ . . . that psychiatrists are rather inaccurate predictors — inaccurate in an absolute sense and even less accurate when compared with other professionals, such as psychologists, social workers and correctional officials and when compared to actuarial devices, such as prediction or experience tables. Even more significant for legal purposes, it seems that psychiatrists are particularly prone to one type of error — over prediction. They tend to predict antisocial conduct in many instances where it would not, in fact, occur. Indeed, our research suggests that for every correct psychiatric prediction of violence, there are numerous erroneous predictions. That is, among every group of inmates presently confined on the basis of psychiatric predictions of violence, there are only a few who would, and many more who would not, actually engage in such conduct if released.’
Dershowitz, The Psychiatrist’s Power in Civil Commitment: A Knife That Cuts Both ways, Psychology Today, Feb. 1969, at 47. '
“Recent studies support Professor Der-showitz’s conclusions: ‘perhaps the most striking evidence supporting Dershowitz’s conclusions comes from the study of the results of “Operation Baxstrom” involving 969 prisoner-patients in New York State who were affected by the Supreme Court’s decision in Baxstrom v. Herold [383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966)]. The Court held that those persons remaining in Department of Corrections Hospitals after their prison terms had expired must be released, and committed civilly, if at all. Each of the 969 patients had been detained in maximum-security hospitals because psychiatrists determined that they were mentally ill and too dangerous for release or even for transfer to civil hospitals. Nevertheless, one year after the patients were transferred to civil hospitals, 147 had been discharged to the community and the 702 who remained were found to present no special problems to the hospital staff. Only seven patients were found to be so difficult to manage or so dangerous as to require recommitment to a Department of Corrections hospital. Several years later, 27% of the patients were living in the community, only nine had been convicted of a crime (only two of felonies), and only 3% were in a correctional facility or hospital for the criminally insane.
‘Another recent study, described by one observer as the “most extensive study to date on the prediction ... of dangerousness in criminal offenders” confirms the lesson of Baxstrom. A team of at least five mental health professionals, including two or more psychiatrists, was asked to conduct unusually thoroughly clinical examinations of individuals who had been convicted previously of serious assaultive crimes (often sexual in nature), assigned to special treatment programs after conviction, and who were then eligible for release. Based upon the examinations, extensive case histories, and the results of psychological tests, the team attempted to predict which individuals again would commit assaultive crimes if released. These predictions of dangerousness were made prior to the court hearings at which the ultimate release decisions were made. Of 49 patients considered by the evaluating team to be dangerous and therefore not recommended for release, but who nevertheless were released after a court hearing, 65% had not been found to have committed a violent crime within five years of returning to the community. In other words, Vsrds of those released despite predictions of dangerousness by the professional team did not in fact turn out to be dangerous.’ Ennis & Litwack, Psychiatry and the Presumptions of Expertise: Flipping Coins in the Courtroom, 62 Cal.L.Rev. 693, 712-13 (1974). (Footnotes omitted) (emphasis supplied.)” [Footnotes omitted in original]

I fail to understand how expert testimony relating to what a defendant may or may not do in the future and an opinion whether the defendant would constitute a continuing threat to society is any more reliable than testimony relating to the physical reactions of a defendant in response to questions and the opinion that those physical reactions are consistent or inconsistent with whether the defendant lied during his responses. To me, any conclusion that the former is less innocuous than the latter to a defendant’s right to a fair trial is bottomed not on logic, but on an unwillingness to depart from the “judicially accepted majority view” and a misguided belief that polygraph testing must emerge from the scientific “twilight zone” before we see the mistake we have made and reverse ourselves. As Judge Douglas so artfully stated in Perez v. State, 537 S.W.2d 455 at 458 (Tex.Cr.App.1976) (Dissenting Opinion), “[a] past mistake on the part of the Court is not a justification for committing the same mistake again.”

Due to the inherent unreliability of psychiatric testimony and its acceptability in the area of capital punishment, I cannot but conclude that evidence of the results of polygraph examinations should always be admissible. Just as Chief Justice Burger observed in Thornton v. Corcoran, 132 U.S.App.D.C. 232, 248, 407 F.2d 695, 711 (1969) (Dissenting Opinion), that cross-examination serves as the check on the process by which a psychiatrist reaches a conclusion, so too will cross-examination serve as the check on the process by which a polygraph examiner reaches a conclusion.

The trial judge should not have excluded the evidence. However, in light of the “positive” identifications of the appellant made by Ramirez and Lozano, both of which were unobjected to, I conclude in this case that the excluded evidence would have merely been cumulative of the appellant’s alibi witnesses. Therefore, the exclusion of evidence in this case was harmless error.

For the foregoing reasons, I concur with the result reached by the Panel, but I dissent from that portion of the opinion which discusses the admissibility of the polygraph results.

      . The.twq counts involved separate robberies occurring at two different convenience stores within an hour’s time. The counts were joined in a single indictment under the authority of V.T.C.A. Penal Code, Sec. 3.02. The sentences will run concurrently since the two counts were tried together. V.T.C.A. Penal Code, Sec. 3.03.

      . The lineup and photo identification testimony was introduced without objection. :


author: DALLY, Judge.

text:
    Sammie FELDER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 58049.
    Court of Criminal Appeals of Texas, En Banc.
    April 26, 1978.

      Robert J. Montgomery, Pasadena, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Jack D. Bodiford, Asst. Dist. Attys., Houston, for the State.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for capital murder; punishment is assessed at death. The indictment charges that appellant intentionally caused the death of James Hanks by cutting and stabbing him with a pair of scissors while in the course of committing the offense of robbery.

Appellant does not challenge the sufficiency of the evidence of his guilt. However, he does question the sufficiency of the evidence with regard to punishment, and contends that the trial court admitted improper evidence during the punishment phase of the trial.

The deceased, who was a quadraplegic, was a resident at an apartment complex in Houston designed and operated as a residence for paraplegics and quadraplegics. Appellant was an employee at this complex. The evidence, which includes appellant’s written confession, establishes that on the night of March 14, 1975, appellant armed himself with a pistol and went to the apartments to “prowl around . . . looking for something to steal.” Appellant entered the deceased’s unlocked apartment and, after looking around for a few minutes, found a camera in a closet. He then approached the bed in which the deceased was sleeping and attempted to slip his hand under the pillow, where the deceased was known to keep his wallet containing a large amount of cash. The deceased awoke and said, “Sammie, what are you doing?” Appellant placed a pillow over the deceased’s face, and after the deceased began shouting for help, appellant stabbed the deceased repeatedly in the neck and head with a pair of scissors he found on the night stand beside the bed. After the deceased stopped shouting, appellant took the wallet and camera and fled. The deceased died as a result of a stab wound in the temple which penetrated his brain.

After leaving the apartment complex, appellant had his brother drive him to the airport, from which he took a flight to Denver. On the way to the airport, he threw the deceased’s wallet and the scissors from the automobile. Appellant remained in Denver for approximately one month, during which time he told a friend about the offense. Appellant left Denver in a stolen car, and was apprehended in Idaho Falls, Idaho, on April 14,1975, after he was observed committing a traffic violation.

The preceding evidence was adduced during the guilt phase of the trial. During the punishment phase, the State also introduced evidence that appellant possessed a pistol at the time of his arrest in Idaho and that appellant had been three times convicted of burglary. Appellant contends that the evidence of the prior convictions was erroneously admitted because of the prejudice such evidence created with regard to the issue of whether his conduct was deliberate. Art. 37.071(b)(1), V.A.C.C.P.

During the punishment phase of a capital murder trial, evidence may be presented as to any matter that the trial court deems relevant to punishment. Art. 37.071(a), V.A.C.C.P. That appellant had been convicted three times for the offense of burglary is relevant to punishment, particularly with regard to whether there is a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. Art. 37.071(b)(2), V.A.C.C.P.; Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977); Brock v. State, 556 S.W.2d 309 (Tex.Cr.App.1977). Although burglary is not an offense involving violence against persons, it is nevertheless admissible for the jury’s consideration. Art. 37.071(a); supra. The trial court did not abuse its discretion in admitting the evidence.

Appellant, who offered no evidence during the trial, contends that the State’s evidence is insufficient to support the jury’s affirmative answer to the second special issue. Art. 37.071(b)(2), supra. We disagree. The evidence discloses that three terms of imprisonment have had little, if any, effect on appellant’s propensity to commit criminal acts. On the night of the instant offense, appellant armed himself with a pistol, and when he was recognized by the deceased, he brutally stabbed him even though the deceased was physically unable to stop or pursue appellant. At the time of his arrest, appellant was also armed with a pistol. This evidence is sufficient to support the jury’s determination that appellant would commit criminal acts of violence that would constitute a continuing threat to society. Art. 37.071(b)(2), supra. Cf. Warren v. State, 562 S.W.2d 474 (Tex.Cr.App., delivered March 1, 1978).

Appellant contends that “improper acts” by the prosecutor throughout the trial “taken as a whole inflamed and prejudiced the jury to the extent that the [appellant] was not granted a fair trial.” This ground of error does not comply with Art. 40.09, V.A.C.C.P. Love v. State, 533 S.W.2d 6 (Tex.Cr.App.1976). However, appellant’s argument refers to a specific instance of allegedly improper argument by the prosecutor, which we shall consider in the interest of justice. This argument, which occurred during the punishment phase of the trial, is as follows:

“MR. BODIFORD: ... And so do you believe that the Defendant acted deliberately when he goes into James Hanks’ apartment with a pistol? And he tells you what he is going to do with the pistol if he is caught in there. He told Edith Cobb that he took that pistol there and he was going to use it if anybody tried to stop him.
“MR. MONTGOMERY: I am going to object to that, Your Honor. That argument is outside the evidence in this case.
“THE COURT: Ladies and gentlemen of the jury, you have heard the evidence, and you will be guided by the testimony that comes from the witness stand solely.
“MR. BODIFORD: Do you remember her testimony? Isn’t that her testimony? She said he took that pistol with him. He told her that. And he was going to use it if anybody tried to stop him.
“MR. MONTGOMERY: We renew our objection, Your Honor.
“THE COURT: Overruled.
“MR. BODIFORD: You know, some lawyers just keep trying to object to break the prosecutor’s train of thought when he gets a little warm.
“MR. MONTGOMERY: We are going to object to that, Your Honor.
“THE COURT: Sustained.
“MR. MONTGOMERY: There is a motion in limine that stops that sort of thing, Your Honor, and we are going to ask the jury be instructed to disregard that remark and ask for a mistrial in violation of that motion in limine.
“THE COURT: Ladies and gentlemen of the jury, you will disregard the last remark of counsel.”

The record reveals that Edith Cobb testified, without objection, that appellant told her that on the night of the offense “he had a gun in case anyone tried to stop him.” The prosecutor’s argument was, therefore, within the scope of the evidence. The prosecutor’s side-bar remark, that lawyers sometimes object in order to break the prosecutor’s train of thought, was improper. However, this impropriety was cured by the trial court’s prompt instruction to the jury. Young v. State, 547 S.W.2d 23 (Tex.Cr.App.1977); Graves v. State, 513 S.W.2d 57 (Tex.Cr.App.1978).

Appellant also contends that Art. 43.14, V.A.C.C.P., providing that the sentence of death shall be carried out by lethal injection, is an unconstitutional delegation of legislative authority. This issue has been resolved contrary to appellant’s position. Ex parte Granviel, 561 S.W.2d 503 (Tex.Cr.App.1978).

Finally, appellant contends that the order overruling his motion for new trial establishes that he was not present at the hearing on the motion. This contention is based on the order which states at one point that “the Defendant, Daniel Joseph Richard,” appeared at the hearing in person and by counsel.

Our review of the record discloses that this is a clerical error. The order in question is styled “The State of Texas vs. Sammie Felder, Jr.” The order twice refers to “the Defendant, Sammie Felder, Jr.” Furthermore, the transcription of the court reporter’s notes taken at the hearing on appellant’s motion for new trial clearly establishes that appellant was present. We will not reverse a conviction because of an obvious clerical error. Bishop v. State, 507 S.W.2d 745 (Tex.Cr.App.1974).

The judgment is affirmed.


author: DIES, Chief Justice.

text:
    Melvern STERLING, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.
    No. 8011.
    Court of Civil Appeals of Texas, Beaumont.
    Aug. 29, 1977.
    Rehearing Denied Aug. 29, 1977.

      Sid S. Stover, Jasper, for appellant.
    Paul W. Gertz, Beaumont, for appellee.
   ON REHEARING

DIES, Chief Justice.

Plaintiff takes us to task because we did not discuss each of the points of error contained in her brief. Counsel insists that we should address the issue of “stacking” of the PIP coverage. In deference to plaintiff’s insistence, we will write upon the subject.

Counsel points to the fact that PIP coverage supplants the former medical payments coverage; and, because medical payments coverage could be stacked [Harlow v. Southern Farm Bureau Casualty Ins. Co., 439 S.W.2d 365, 368 (Tex.Civ.App.—Austin 1969, writ ref’d n. r. e.), and Southwestern Fire and Casualty Company v. Atkins, 346 S.W.2d 892, 895 (Tex.Civ.App.—Houston 1961, no writ)], the replacement coverage should likewise be stacked. We disagree.

It is clear from a reading of the PIP indorsement that the “two or more automobile” condition appearing elsewhere in the policy is inapplicable to the PIP coverage. Thus, the ambiguity forming the basis of the holdings in Harlow and Atkins is not present. See Westchester Fire Ins. Co. v. Tucker, 512 S.W.2d 679, 682 (Tex.1974). We say, as did the Court in Tucker, “It is necessary to look elsewhere to determine the limits of the company’s liability, . . ” Id. at 683.

We find the limits in the statute, Tex.Ins. Code Ann. art. 5.06-3(b): “The personal injury protection in this paragraph specified shall not exceed $2500 for all benefits, in the aggregate, for each person.” See also, E. York, “ ‘Stacking’ Uninsured Motorist Protection, Medical Payments, and Personal Injury Protection Coverages in Texas”, 7 St. Mary’s L.J. 837, 845-849 (1976).

We have examined the remaining complaints made in the original brief and in the motion for rehearing and find no merit therein. Accordingly, the motion for rehearing is overruled.