author: ODOM, Judge.

text:
    Pedro Cruz MUNIZ, Appellant, v. The STATE of Texas, Appellee.
    No. 59090.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 1, 1978.
    Rehearing En Banc Denied Nov. 28, 1978.

      Jesse Roy Botello and Ruben Sandoval, San Antonio, for appellant.
    Edward J. Walsh, Dist. Atty., Georgetown, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for the capital murder of a 19 year old Southwestern University co-ed in the course of an aggravated rape. V.T.C.A., Penal Code Sec. 19.03(a)(2). The jury returned affirmative findings on each question submitted under Article 37.071(b), V.A.C.C.P., and accordingly the punishment was assessed at death.

The finding of guilt is not attacked, but appellant complains errors were committed in the punishment phase of the trial and in the composition of the grand jury.

In order for the death penalty to be assessed, the State must conform to the requirements of Art. 37.071, V.A.C.C.P. The statute requires that two questions be put to the jury, or three if raised by the evidence, all of which must be answered in the affirmative before the death penalty will be assessed. The second of these questions is “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,” Art. 37.071(b)(2), V.A.C. C.P. The jury, when it first announced that it had reached a verdict at the punishment stage, left this question unanswered. The judge sent them back for further deliberations over appellant’s objections, with these instructions:

“Ladies and Gentlemen of the jury: You are instructed to return to the jury room and continue your deliberations in this ease, to see if you can arrive at an answer to Special Issue Number II, contained in the Charge on Punishment.”

Appellant first contends it was error for the trial judge to refuse to grant a mistrial under the provisions of Art. 37.07, Sec. 3(c), V.A.C.C.P., after the jury returned the verdict with question number 2 unanswered. He maintains that the jury had failed to agree on a verdict and a mistrial was therefore required by the statute.

Appellant’s statement of the law is, on its face, correct. A mistrial will be declared under Art. 37.07, Sec. 3(c) when the jury fails to agree, but our inquiry cannot end there. Art. 37.07, Sec. 3(c) must be read in light of the provisions of Art. 36.31, V.A.C.C.P., dealing with jury disagreements. The trial court in its discretion may dismiss a jury when it has been kept together long enough to make it improbable that the jury can agree. It is well settled that the exercise of discretion in declaring a mistrial will be judged by the amount of time the jury deliberates in light of the nature of the case and the evidence. Bee-man v. State, 533 S.W.2d 799. The improbability that the jury will agree depends in large measure on the amount of time they have been kept together. O’Brien v. State, 455 S.W.2d 283; Powell v. State, 17 Tex. Cr.R. 345.

The case before the jury in this instance was capital murder. The testimony lasted six days. The jury deliberated only 2 hours and 26 minutes before returning the verdict on punishment with question number 2 unanswered. No abuse of discretion is shown. Stillwell v. State, 434 S.W.2d 861; Verret v. State, 470 S.W.2d 883; Broadhead v. State, 414 S.W.2d 931.

Appellant also argues that the verdict as first issued was an informal acquittal under Art. 37.10, V.A.C.C.P. His reliance on this provision under these circumstances is inappropriate. This section allows the trial judge to put a verdict in the proper form when the jury fails to do so. Franco v. State, 492 S.W.2d 534. The court can instruct a jury to retire to reconsider the verdict if it does not comply with the charge, the indictment, or the punishment allowed by the applicable statute. Stillwell v. State, supra; Belton v. State, 286 S.W.2d 432.

An informal verdict is an acquittal only when “it manifestly appear[s] that the verdict is intended as an acquittal.” There was no such manifestation here, the verdict was merely incomplete. In order to answer question number 2 the jury would have to vote unanimously for yes or at least 10 for no. They were instructed that if there were not 10 votes for no or unanimity for yes, then no answer would be made. They had no answer when they came out for the first time. This was not an informal acquittal.

It is also argued that the judge’s supplemental charge to the jury on sending it back for continued deliberation was a coercive Allen or dynamite type charge. This contention is without merit. The court merely instructed the jury to continue its deliberations without any additional language which could be interpreted as bringing pressure to bear on the jury. Stillwell v. State, supra; Verret v. State, supra; Broadhead, supra. Furthermore, it does not appear that any objection on this ground was raised at trial.

The first ground of error is overruled.

Appellant maintains for the first time on appeal that the trial court committed fundamental error in admitting the testimony of Dr. Holbrook as to his future dangerousness during the punishment phase of the trial. He asserts that this testimony is based on a conversation Dr. Holbrook had with him while in custody and that use of the testimony was a violation of his Fourth, Fifth, Sixth and Fourteenth Amendment rights under the United States Constitution and in contravention of the State’s Code of Criminal Procedure. Appellant failed to object to introduction of this testimony at trial. A failure to timely object waives any error in the admission of evidence and presents nothing for review. Shumake v. State, 502 S.W.2d 758.

The ground of error is overruled.

Appellant’s third ground of error is that the evidence was insufficient to support beyond a reasonable doubt the jury’s answer of yes to question number 2 during the punishment phase. The prosecution, in addition to relying on the circumstances of the crime, offered the testimony of four reputation witnesses, a psychiatrist, and evidence of appellant’s prior record.

The facts of the offense show that appellant followed a young woman, took her off the street into an abandoned bathhouse, raped and beat her, dragged her approximately 200 feet away from the bathhouse and beat her to death with such severity that drops of blood were found scattered as far as fifteen feet from the second struggle area which was close to where the body was hidden under a pile of driftwood. There were nine impact points on the head, accounting for a broken jaw and the caving in of the back of the skull.

The chief of police of the town where appellant lived, the justice of the peace of his home precinct, and the sheriff of his county of residence all testified that they knew appellant and his reputation in the community for being a peaceable and law abiding citizen and that it was bad. The county attorney testified to two prior convictions, one for escape and one for resisting arrest. Appellant was on probation when he committed the instant offense.

The psychiatrist testified that he had interviewed appellant and that appellant had a severely anti-social personality. He stated that appellant knew the difference between right and wrong, exhibited no signs of guilt or remorse, and that he felt there was a reasonable medical certainty appellant would commit similar acts in the future.

The evidence, taken as a whole, was sufficient to sustain an answer of yes to question number two. The circumstances of the offense itself can sustain a yes answer if they are severe enough, Burns v. State, 556 S.W.2d 270, or can fail to support it if they are not and are unsupplemented by other evidence, Warren v. State, 562 S.W.2d 474. Psychiatric testimony on the issue of future dangerousness has been held to be of probative value in this State, Livingston v. State, 542 S.W.2d 655, but it is not absolutely necessary to support a yes answer to question number two. In this case the brutal facts of a particularly vicious crime, the reputation evidence, the prior criminal record, and the psychiatric testimony were sufficient to support a yes answer to the issue of appellant’s future dangerousness.

The third ground of error is overruled.

The final ground of error challenges the trial court’s refusal to quash the indictment for systematic exclusion of Mexican-Americans from the grand jury that indicted him. Challenges to the composition of grand juries are permitted in this State under the authority of Article 19.27, V.A.C.C.P., which states:

“Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall upon his request be brought into court to make such challenge.”

This statute has been interpreted to mean that the array must be challenged at the first opportunity, Valdez v. State, 408 S.W.2d 109, which ordinarily means when the grand jury is impaneled. Challenge at this early date is sometimes impossible as when the offense occurs after the grand jury is impaneled. When challenge on im-panelment is not possible, the array can be attacked in a motion to quash the indictment before trial commences. Ex parte Covin, 277 S.W.2d 109. If the defendant has an opportunity to challenge the array when it is impaneled and does not do so, he may not challenge it at a later date. Armentrout v. State, 135 S.W.2d 479.

Appellant was arrested in the early morning hours of December 23, 1976. He filed a pauper’s affidavit and had counsel appointed for him on December 28. The grand jury that indicted him was impaneled on January 11, 1977. No challenge was made to the array at that time. Appellant was indicted for capital murder on January 12. Thus, appellant was in custody, represented by counsel, and aware, at the time the grand jury was impaneled, that he was to be the object of its scrutiny. He failed to challenge the grand jury at that time but did so several months later in a motion to quash.

“Under the statute, Art. 358, C.C.P. [now Art. 19.27, V.A.C.C.P.], and the construction thereof, it is clear that an accused having opportunity to challenge the array of grand jurors, or any person thereon at the time of impanelment, and who fails to do so has waived the right to so challenge by motion to quash the indictment.” Tyson v. State, 171 S.W.2d 496, 498.

The ground of error is overruled.

The judgment of the trial court is affirmed.

      . Art. 37.07, Sec. 3(c), provides:
      “In cases where the matter of punishment is referred to the jury, the verdict shall not be complete until the jury has rendered a verdict both on the guilt or innocence of the defendant and the amount of punishment, where the jury finds the defendant guilty. In the event the jury shall fail to agree, a mistrial shall be declared, the jury shall be discharged, and no jeopardy shall attach.”

      . Art. 36.31, V.A.C.C.P., provides:
      “After the cause is submitted to the jury, it may be discharged when it cannot agree and both parties consent to its discharge; or the court may in its discretion discharge it where it has been kept together for such time as to render it altogether improbable that it can agree.”

      . Art. 37.10, V.A.C.C.P., provides:
      “If the verdict of the jury is informal, its attention shall be called to it, and with its consent the verdict may, under the direction of the court, be reduced to the proper form. If the jury refuses to have the verdict altered, it shall again retire to its room to deliberate, unless it manifestly appears that the verdict is intended as an acquittal; and in that case, the judgment shall be rendered accordingly, discharging the defendant.”

      .The true Allen charge, delivered when the jury is deadlocked, indicates to a juror that some deference is owed the opinion of the majority of his fellow jurors. See Allen v. U. S., 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). The charge in the present case is not an Allen charge. The jurors were instructed merely “to see if” they could arrive at a verdict.

      . In a supplemental brief, appellant points to the recent case of Estelle v. Smith, 445 F.Supp. 647 (N.D.Tex.1977) as authority that his belated protest has merit and that admission of the testimony was fundamental error, thereby avoiding the force of the contemporaneous objection doctrine. This Court is not bound by the decisions of lower federal courts, Flores v. State, 487 S.W.2d 122. It is well established in this State that psychiatric testimony in the punishment phase is admissible without a pre-psychiatric interview warning against self-incrimination and of the right to remain silent or the presence of counsel at the interview. Livingston v. State, 542 S.W.2d 655, 662. Thus, the admission of Dr. Holbrook’s testimony was not error at all, much less fundamental error. Furthermore, nothing in the record indicates that appellant was not given such a warning.

      - Counsel was retained by relatives of appellant after the court had appointed an attorney. It is not completely clear from the record whether he was retained on January 6th or 12th, but statements of counsel during oral argument make the 6th the more probable date. Appellant, therefore, had at least one, and probably two, attorneys in ample time to challenge the array when it was impaneled.

      . The Supreme Court has also held that this matter may be waived by failure to assert a timely challenge to the grand jury. In Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955), addressing the issue of waiver in the context of a Louisiana statute similar to Article 19.27, the Court stated:
      “It is beyond question that under the Due Process Clause of the Fourteenth Amendment Louisiana may attach reasonable time limitations to the assertion of federal constitutional rights. More particularly, the State may require prompt assertion of the right to challenge discriminatory practices in the make-up of a grand jury. [350 U.S. at 97, 76 S.Ct. 158 at 162]. ‘No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the rights. . ’ ” [350 U.S. at 99, 76 S.Ct. at 163]
      See also Dumont v. Estelle, 513 F.2d 793 (5th Cir. 1975).


source: Caselaw Access Project

author: BROWN, Commissioner. DOUGLAS, Judge,

license: Public Domain

text:
    Felix Garcia OCHOA, Appellant, v. The STATE of Texas, Appellee.
    No. 55669.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 8, 1978.
    State’s Motion for Rehearing En Banc Denied Dec. 13, 1978.

      Hector F. Fabela and Joseph D. Martinec, Austin, for appellant.
    Wiley L. Cheatham, Dist. Atty., Cuero, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for the offense of capital murder. Appellant was convicted for the murder of a Yorktown police officer, who was acting in his capacity as a peace officer at the time appellant shot him. On October 18, 1976, the jury answered “Yes” to the special issues submitted under Article 37.071, Vernon’s Ann.C.C.P., and the punishment was assessed at death.

Appellant now contends that the trial court erred in allowing appellant’s written statement to be introduced into evidence at the trial. After a hearing on appellant’s motion to suppress, the trial court entered findings that the confession was voluntarily given, and that appellant had knowingly and voluntarily waived his right to counsel and his right against self-incrimination. The court therefore determined that the statement was admissible. At trial, the charge instructed the jury relative to the law concerning the admissibility of confessions in accordance with Article 38.22, Vernon’s Ann.C.C.P.

Appellant argues that the confession was obtained in violation of the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), and that it thus should not have been used against him at trial.

The State initially contends that appellant has waived this ground of error, since he testified in his own behalf at trial and testified to substantially the same facts as contained in the statement. Where a defendant testifies in his own behalf and admits the truth of the testimony to which he previously objected, he waives his right to claim that he was harmed by the introduction of such evidence over his objection. However, he has not waived his right to claim harm if he introduces rebutting evidence in an attempt to meet, destroy or explain the evidence offered against him. Jackson v. State, 548 S.W.2d 685 (Tex.Cr.App.1977); Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973).

In his testimony, appellant challenged the accuracy of several statements in the confession, stating that they were false and that he did not make them. While he admitted shooting the deceased, in his testimony he interjected a claim of self defense, thus seeking to explain his statements in the confession. He also contradicted statements in the confession relating to the sequence in which appellant and the deceased drew their guns. Thus, it appears that appellant has not waived this ground of error.

On July 11, 1976, appellant left a bar in Cuero and drove toward his home in Yorktown. Another driver called the Yorktown police and reported that appellant was weaving back and forth on the road. The deceased, a Yorktown police officer, responding to the report, stopped appellant’s car and asked to see his driver’s license. When handed the license, the deceased stated that he was going to take appellant to the police station. Appellant refused, and got back in his car and drove off. The deceased followed appellant to the driveway of the Ochoa home, where he pulled his car in the driveway behind appellant’s. Appellant got out of his car and started towards the house. The deceased also got out of his ear, and apparently drew his gun. Appellant testified that upon seeing the deceased’s gun he got back into his car and reached under the seat and got his own loaded pistol. Appellant further testified that he shot at the deceased, hitting him twice. The deceased fell, with his own gun beside him. Appellant told his father to get help, and the police arrived a few minutes later.

Appellant was arrested at the scene, at about 11:30 p. m., at which time he was given his Miranda warnings by Sheriff J. R. Adams. He was then handcuffed and taken to the Cuero jail, arriving at about 1:00 a. m. He was taken before a magistrate where he was again read his Miranda rights. Justice of the Peace Albert Ley testified that he explained these rights to appellant, and that appellant stated that he understood his rights and signed a paper.

At this point, the exact sequence of events becomes somewhat confusing. However, as nearly as this Court can ascertain, appellant was then taken to an interrogation room. Robert Post, the County Attorney, testified that he spoke to appellant and advised him of his rights. He stated that appellant did not wish to talk to him at this time, and he felt like appellant was not telling him anything so he left. Apparently, other unidentified officers were present on and off during this short period of time. Appellant testified that he requested an attorney during this interrogation, although Post denies that appellant did so while he was present.

Appellant was then taken to his jail cell. At about 3:30 a. m., Adams got appellant from his cell and took him to the interrogation room. Adams testified that he again read appellant his Miranda rights. Appellant testified that at this point he told Adams that he thought he should talk to an attorney before answering any questions or signing anything. At the hearing on the motion to suppress, Adams testified:

“A [Adams] He [appellant] said that he would talk with me.
“Q [Defense] He did not request an attorney?
“A I think that he had made some mention as to he might possibly want to talk to an attorney. He didn’t press the issue.
“Q [Prosecution] Other than the occasion when you testified that at first the defendant was undecided about the lawyer, did he ever ask you to get a lawyer for him or anything of that nature any further?
“A [Adams] No, sir.
“Q Did he make any request for an attorney other than when he said that he was undecided there at first, that he might or might not want a lawyer?
“A No, sir, he did not.
“Q [Defense] Mr. Adams, you did testify earlier, did you not, that at the beginning of the interrogation he did make some statement about a lawyer, about wanting to talk to a lawyer?
“A [Adams] Yes, sir, he did.
“Q [Prosecution] Do I understand that he was undecided at that time whether he wanted one or not?
“A [Adams] He did not make a formal request for a lawyer or say I don’t want to talk to you; I want to see a lawyer first, no, sir.”

Then, at the trial, the following testimony was heard:

“Q [Defense] Well, didn’t [appellant] actually mention wanting to talk to a lawyer to you?
“A [Adams] Yes, sir, he did when we first went into the room. He said that he probably ought to talk to a lawyer or something to this effect or didn’t want to sign anything until he talked to a lawyer, if I recall correctly. He then said something to the effect, ‘Well, I will talk to you, but I don’t want to sign anything.’
“Q And that wasn’t notice to you to get this man a lawyer?
“A No, sir, he did not insist on a lawyer at that time. . . . ”

Apparently, right after appellant made the statement about a lawyer, Adams gave appellant coffee and cigarettes and began talking to appellant about families, horses and children. After they had talked about other matters for about 30 to 45 minutes, they began talking about the murder. Adams admitted that his purpose and intent in discussing marital problems, children and other matters with appellant was to calm and relax him and to “get on his good side,” and to thus get appellant to make a statement. At 6:20 a. m., appellant signed a statement prepared by Adams. Appellant did not read the confession himself, but rather had Adams read it to him. On these facts, the trial court ruled the confession admissible.

We conclude that, from the facts shown, the State has not met the heavy burden imposed by Miranda v. Arizona, supra, of demonstrating that appellant knowingly and intelligently waived his right to counsel.

In Miranda, the United States Supreme Court set out procedural requirements for law enforcement officials during in-custody interrogations. The Court made clear the necessity of advising criminal defendants of their right against self-incrimination and their right to counsel, and the requirement that once a defendant invokes a Miranda right all interrogation must cease. The Court stated:

“The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. ... An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we delineate have been given. [Emphasis added.]”

The Court emphasized that once a defendant indicated in any way that he wanted an attorney interrogation must cease altogether. The Court further stated that while a defendant could change his mind once he invoked his right to counsel, if he does so and the interrogation continues, the State bears a heavy burden to demonstrate that the defendant knowingly and intelligently waived his right to counsel.

We read this language in Miranda literally; where a defendant indicates in any way that he desires to invoke his right to counsel, interrogation must cease.

Such literal reading of Miranda is supported by Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 325, 46 L.Ed.2d 313 (1975). In a discussion of the invocation of the analogous right to remain silent and the necessity of a cessation of interrogation at that point, the Supreme Court stated that:

“Resolution of the question turns almost entirely on the interpretation of a single passage in the Miranda opinion . ‘Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.’ ”

See also Hearne v. State, 534 S.W.2d 703 (Tex.Cr.App.1976).

Thus, this Court must conclude that if appellant in any manner indicated his desire to have a lawyer, the continued interrogation was a violation of his Miranda rights and the confession obtained therefrom is inadmissible. We hold that appellant’s statements to Adams concerning an attorney were sufficient to invoke his right to counsel. Although he did not make a “formal request” or absolute demand for a lawyer, he did in some manner indicate to Adams that he wanted to exercise his right to counsel. This was sufficient to require a cessation of interrogation.

The burden was on the State to show that appellant specifically and affirmatively waived this right to counsel, and it did not do so. The only evidence that he waived his right to an attorney is the fact that subsequent to his conversation with Adams about families and horses he made a confession. In Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), the Supreme Court held that such a showing is not sufficient to show a waiver.

Since the State has not met its burden of showing that a voluntary, knowing and intelligent waiver of the right to counsel was made, the confession was inadmissible. Miranda v. Arizona, supra; Brewer v. Williams, supra.

The State contends that the confession was nevertheless admissible since upon cross-examination, appellant admitted that he voluntarily signed the statement. A confession, in order to meet constitutional standards, must be both voluntary and taken in compliance with Miranda. If it meets one requirement but not the other, it is still inadmissible. Miranda imposes rigid requirements in order to insure the voluntariness of a confession, and these requirements must themselves be satisfied in order for a confession to be admissible.

Accordingly, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

VOLLERS, J., not participating.

DOUGLAS, Judge,

dissenting.

The majority reverses this conviction even though appellant took the stand and admitted his guilt. The majority holds that the confession was inadmissible and reverses the conviction even though appellant testified to substantially the same facts proved by the confession. Summarily rejecting the State’s theory of waiver or harmless error, the majority stated that appellant, while testifying, interjected a claim of self-defense and thereby sought “to explain” the statements in his confession. What did he explain? An examination of the doctrine of harmless error or curative admissibility affirmatively demonstrates that appellant’s testimony waived or, at least, rendered harmless any error in the admission of the confession.

Appellant’s testimony was nothing more than a self-serving elaboration of the statements contained in the confession. The only conflicts concerned whether appellant had drawn his gun before the deceased had drawn his and whether appellant had made a threatening statement to the chief of police.

With regard to the sequence in which appellant and the deceased drew their guns, the confession reads:

“. He (the deceased) said ‘You’re going to go.’ I got back in my car and got my gun out. I had it in a holster under the seat. When I came out of the car he had his gun out of the holster. I said to myself ‘he’s not going to kill me right here at my own yard.’ I shot at him three or four times. I saw him fall to the ground. . . . ”

Appellant testified on direct examination as follows:

“A. Well, I drove to the house and he got in right behind me. I got out of the car and started to go in, told him I was going in, I was going to sleep. He told me again that I had to go with him.
“Q. Did he tell you at that time that you were under arrest?
“A. No.
“Q. Did he tell you why he wanted you to go in?
“A. No.
“Q. Okay. So he told you that you would have to go with him. What happened next?
“A. Well, I just didn’t know. I turned around and, you know, I was facing the house and when I turned around I looked at him, seen he had a gun.
“Q. You saw that he had his gun. Do you mean in his holster or in his hand?
“A. He had it in his hand.
“Q. All right. What did you do next?
“A. I thought he was going to kill me. I just went in my car and got my gun.
“Q. What did you do?
“A. When I came back out he turned around, pointed the gun to me; I shot.”

The second conflict was clarified on cross-examination. Appellant stated in the confession that the local police had been harassing him, that he had complained about this to the chief of police, and that he had warned the chief he “didn’t want to do anything to them.” Appellant testified, however, that he had not said he did not want to be forced to harm the officers who were harassing him.

The remaining alleged discrepancy was merely a matter of semantics. In this connection, the record reflects:

“Q. Well, in other words, except the place where you said that it is in error about you getting your gun out before the officer had his gun out and that about that you didn’t want to do anything to the officer you talked to Mr. Nobles about. Is the rest of the statement true and correct?
“A. Well, those — no, it is not correct; not in my words.
“Q. All right. What is not correct, then? Let’s get that straight.
“A. It says there that the man said he was going to take me in. He never told me he was going to take me in. He said I had to go with him.
“Q. Well, what is the difference between you having to go with him and him taking you in? Just the way he said it, is that what you are talking about?
“A. Right.”

Heretofore, the doctrine of curative admissibility — that an accused may not complain of the admission of illegally obtained evidence where he testifies to substantially the same facts proven by the challenged evidence — has been consistently followed by this Court. See, e. g., Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975); Lovell v. State, 525 S.W.2d 511 (Tex.Cr.App.1975); Wood v. State, 523 S.W.2d 248 (Tex.Cr.App.1975); Melton v. State, 511 S.W.2d 957 (Tex.Cr.App.1974); Owens v. State, 503 S.W.2d 271 (Tex.Cr.App.1974); DeLeon v. State, 500 S.W.2d 862 (Tex.Cr.App.1974); Moulton v. State, 486 S.W.2d 334 (Tex.Cr.App.1972); Williams v. State, 479 S.W.2d 300 (Tex.Cr.App.1972); and Palmer v. State, 475 S.W.2d 797 (Tex.Cr.App.1972).

In McLaughlin v. State, 109 Tex.Cr.R. 307, 4 S.W.2d 54 (1928), this Court first used the phrase “meet, destroy or explain” to describe those situations where no waiver occurs. It is clear from that case, however, that where the accused admits the truthfulness of evidence to which he objects he has waived any error in the admission of such evidence.

Later cases also indicate that waiver of the error in admitting illegally obtained evidence occurs if the accused admits the existence of those facts even though he is attempting to “explain” the circumstances surrounding those facts. In Parker v. State, 384 S.W.2d 712 (Tex.Cr.App.1964), the defendant was stopped for a traffic violation. The arresting officer observed two barbiturate capsules in the defendant’s hand as the defendant searched for his driver’s license. At trial, the defendant testified that he did have the capsules in his hand but claimed that he noticed them on the floor of his van and had picked them up immediately prior to being stopped. He stated that he did not know what they contained. Nevertheless, he was convicted for possession of a dangerous drug. On appeal, we held that the defendant had waived any error in the admission of the capsules because he had admitted that he had possessed them despite his attempt to “explain away” such possession.

In Lester v. State, 498 S.W.2d 927 (Tex.Cr.App.1973), narcotics officers established a surveillance of an El Paso house as the result of a tip received by a United States Customs Officer that marihuana was going to be delivered to that address. The officers observed defendants Lester and Shea put what the officers believed to be marihuana into an automobile. The defendants drove away and the officers followed them. When the officers attempted to stop the defendants, numerous shots were exchanged. One officer and Lester were wounded. Shea was convicted of assault with intent to murder without malice and Lester was convicted of aggravated assault.

The defendants contended on appeal that the guns taken from them following their arrest were the fruits of an illegal search and were erroneously admitted in evidence. We found it unnecessary to pass upon the legality of the arrest since the defendants testified on direct examination that they had the guns in their possession. We stated that “[h]aving voluntarily taken the stand at the guilt stage and on direct examination admitted having an exchange of gunfire with the officers, [defendants] cannot question the lawfulness of the search where the guns were seized. . . . ” 498 S.W.2d at 929.

In Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973), we reasoned that the doctrine of curative admissibility is based on the introduction by the accused of other evidence of the same facts, without objection, and not merely the introduction of other evidence on the same subject or a different use of an exhibit in question. Moreover, we again established that even where the accused testifies in his own behalf in order to “meet, destroy or explain” the improperly admitted evidence, he waives any objection to such evidence if he proves substantially the same facts as those in question. Thus, the fact that the accused’s admissions are made while attempting to establish a defense will not preclude a waiver.

In the instant case, appellant complains of the admission of the confession even though he later testified on direct examination to substantially the same facts. Excepting two self-serving variations, he testified to the same facts as contained in the confession and even went into greater detail about the circumstances surrounding the offense.

Appellant’s testimony did not “explain” the facts relating to the offense as that term has been construed by our cases. Rather, he merely confirmed the substance of the statements made in the confession. His defense of self-defense had already been raised by one of those statements: “I said to myself ‘he’s not going to kill me right here at my own yard.’ ” The majority should point out what he explained.

Moreover, although appellant may well have taken the stand in order to minimize the injury resulting from the admission of the confession, this was a product of his own trial strategy, not the result of impulsion or compulsion on the part of the State. See Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). His admission that he shot the deceased was made solely to enhance his defense. Having admitted to the truthfulness of the facts contained in the confession, he cannot now be heard to complain that the confession was inadmissible. Wood v. State, supra; Melton v. State, supra; Owens v. State, supra; DeLeon v. State, supra. To hold otherwise would allow an accused to voluntarily testify in his own self-interest and then protest on appeal that he was “impelled” to do so because of the strength of the State’s evidence against him.

We should adhere to the well-established doctrine of curative admissibility and hold that any error in the admission of the confession was waived or rendered harmless. The judgment should be affirmed.

DALLY and W. C. DAVIS, JJ., join in this dissent.

VOLLERS, J., not participating.

      . Appellant contends that the facts as he related them indicate that more happened in the interrogation room than that to which Adams testified. However, the fact-finder is to resolve conflicting testimony, and apparently the trial court resolved such conflict against appellant.

      . There is no question that Adams was continuing interrogation by his conversation with appellant. So long as the officer’s statements are designed to elicit incriminating statements from the defendant, as Adams admitted his were here, it is interrogation. See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).


author: PHILLIPS, Judge.

text:
    William W. WAGES, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 56862.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 15, 1978.
    Appellants’ Motion for Rehearing En Banc Denied Dec. 13, 1978.
    Leonard M. Roth, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and Candelario Elizondo, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of felony theft. V.T.C.A., Penal Code, Sec. 31.03. Punishment was enhanced pursuant to V.T.C.A., Penal Code, Sec. 12.42(a) and assessed at 15 years and one day imprisonment.

On March 10, 1977, appellant pled guilty to an indictment for the offense of felony theft and was properly admonished by the trial court. Article 26.13, V.A.C.C.P. The indictment alleged that appellant committed three misdemeanor theft offenses in one scheme and continuing course of conduct and the amounts obtained thereby were aggregated under V.T.C.A., Penal Code, Sec. 31.09, to create one third degree felony offense. After the State abandoned the second enhancement paragraph, appellant pled true to one prior conviction.

In his first ground of error appellant contends that once the State aggregated the three misdemeanor theft amounts to a third degree felony theft, it could not then enhance that conviction to a second degree felony under our statute, V.T.C.A., Penal Code, See. 12.42(a). Appellant’s contention, in essence, is that the State cannot use both Sec. 31.09, aggregation of amounts in theft offenses, and Sec. 12.42(a), the enhancement provision, in the same indictment. Appellant urges that to allow aggregation of the three misdemeanor theft amounts, and to allow enhancement under Sec. 12.-42(a) at the same time, effectively increases appellant’s punishment from a Class A misdemeanor to a second degree felony. He contends that an increased punishment from a possible maximum of one year in the county jail for each of the three offenses to fifteen years and one day in the penitentiary constitutes cruel and unusual punishment.

In Green v. State, Tex.Cr., 435 S.W.2d 513, this Court held that a 12-year sentence imposed on an enhanced felony conviction was not cruel and unusual punishment. Likewise, the 15-year and one day sentence imposed in the present case will not be cruel and unusual punishment if the misdemean- or theft amounts were properly aggregated to a third degree felony.

V.T.C.A., Penal Code, Sec. 31.09 provides: “When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.” (Emphasis added)

At the hearing on his plea of guilty, appellant admitted that the three misdemeanor theft offenses were “one continuous scheme” and that the aggregated value of the property taken was at least $200.00 but less than $10,000.00. V.T.C.A., Penal Code, Sec. 31.03(d)(4)(a). Appellant’s admission demonstrates that the amounts obtained were properly aggregated pursuant to our statute. Further, the aggregation in this case illustrates the reasoning behind the enactment of the statute, as pointed out in the practice commentary to Sec. 31.09:

“This section represents a more substantial departure from the common law. It provides that, if an actor adopts and pursues a single ‘scheme or continuing course of conduct’ for acquiring property or services in a manner that constitutes theft, he may be convicted of a felony even though he is careful to limit the theft from each individual or at each time and place to a misdemeanor amount. This provision reflects the determination that the reprehensibility of an actor, and thus the appropriate penal sanction, is not necessarily determined by the amount he steals at a single moment from a single person.”

We hold the three misdemeanor theft amounts were properly aggregated under our statute into a third degree felony and the enhancement of that conviction did not constitute cruel and unusual punishment. Appellant’s contention is overruled.

Appellant’s second ground of error complains that his trial counsel was ineffective for failing to request a severance of the three aggregated theft offenses alleged in the indictment. See V.T.C.A., Penal Code, Sections 31.03, 31.09, 3.01, and 3.02. Appellant alleges in his brief that he was not apprised of the options available to him under the law; i. e., that V.T.C.A., Penal Code, Sec. 3.04(a), provided him with a right to a severance. Such a contention assumes that the severance provision of Sec. 3.04(a) of our present Penal Code applies to the unique aggregation provision of Sec. 31.09 of the present Penal Code. Such a position has to be rejected on a facial interpretation of the relevant statutes. It is clear that the aggregation principle enunciated in Sec. 31.09 operates to create one offense. This provision applies when the amounts taken are obtained “pursuant to one scheme and continuing course of conduct.” It is axiomatic that you cannot sever one offense. This provision should be contrasted to that expressed in Waythe v. State, 533 S.W.2d 802. In that case, the forgery offenses were consolidated pursuant to V.T.C.A., Penal Code, Sec. 3.02. The right to a mandatory severance under Sec. 3.04 was clearly applicable. Thus, in the instant case, had the record even supported appellant’s contention that he was not advised of the severance procedures under Sec. 3.04(a), ineffectiveness of counsel would not have been established. Upon a review of the whole record and the totality of the circumstances, we are convinced that appellant was not denied effective assistance of counsel — be he retained or appointed. Ex parte Gallegos, 511 S.W.2d 510; Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1974). Having failed to affirmatively demonstrate ineffective assistance of counsel, appellant’s contention is overruled.

In his final ground of error appellant contends that the conviction should be reversed as there was no waiver of the 10-day period to prepare for trial. Art. 26.04(b), V.A.C.C.P. Appellant alleges in his brief that he was originally indicted under Cause No. 250159 and, on March 2, 1977, was reindicted under Cause No. 259562. Appellant pled guilty to Cause No. 259562 with dismissal of the second enhancement paragraph on March 10, 1977. Appellant contends that since there is no written waiver in the record or reflected in the docket sheet, the conviction must be reversed as being in violation of Art. 26.-04(b).

The provisions of Art. 26.04(b) are mandatory and if an appointed attorney does not have 10 days to prepare for trial, the case must be reversed. Hayles v. State, 507 S.W.2d 213. In the present case, the record does not contain the indictment in Cause No. 250159 alleged in appellant’s brief. Further, the record does not reflect the date on which trial counsel was appointed nor, indeed, if trial counsel was appointed. In the absence of a showing of the date of trial counsel’s appointment, appellant’s contention is overruled. Steward v. State, 422 S.W.2d 733.

The judgment is affirmed.

      . The charging portion of the indictment reads:
      “[0]n or about June 11, 1976, did then and there unlawfully appropriate property, namely, cash money, of the value of over twenty dollars and under two hundred dollars, with the intent to deprive the owner, Cathy Key, of the property, and without the effective consent of the owner;
      And on or about June 12, 1976, in Harris County, Texas, the Defendant did then and there unlawfully appropriate property, namely, cash money, of the value of over twenty dollars and under two hundred dollars, with the intent to deprive the owner, Cathy Key, of the property, and without the effective consent of the owner;

        And on or about June 13, 1976, in Harris County, Texas, the Defendant did then and there unlawfully appropriate property, namely, cash money, of the value of over twenty dollars and under two hundred dollars, with the intent to deprive the owner, Beverly Smith, of the property, and without the effective consent of the owner;
      And all of said amounts were obtained, as alleged, in one scheme and continuing course of conduct, and the aggregate amount of the amounts stolen was over two hundred dollars and under ten thousand dollars.
      Before the commission of the offense herein-above alleged, the Defendant on December 19, 1963, in Cause No. 9210, in the 9th District Court of Poik County, Texas, was convicted of the felony offense of burglary; And before the commission of the offense hereinabove alleged, and after the conviction in Cause No. 9210 was final, the defendant committed the felony offense of Unlawful Possession of a Narcotic Drug, to wit, Heroin, and was convicted on September 20, 1971, in Cause No. 162513, in the 180th District Court of Harris County, Texas.”

      . V.T.C.A., Penal Code, Sec. 31.03(d)(3) and V.T.C.A., Penal Code, Sec. 12.21.

      . The record does not reveal whether trial counsel was appointed or retained.

      . Article 26.04(b) provides: “The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.”


author: ONION, Presiding Judge.

text:
    Jerry Lee HIGH, Appellant, v. The STATE of Texas, Appellee.
    No. 52466.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 29, 1978.
    Gerald B. Scheve, Houston, for appellant.

      Carol S. Vance, Dist. Atty. and Alvin M. Titus, Asst. Dist. Atty., Houston, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

Appellant was convicted by a jury for aggravated sexual abuse of a child. The jury assessed punishment at imprisonment for ten (10) years.

On May 26, 1976, we abated the appeal and ordered the trial court to conduct a hearing on the question of appellant’s indi-gency vel non. Subsequent to that decision, the trial court found appellant indigent, ordered a free transcription of the court reporter’s notes, and appointed counsel to represent appellant on appeal. The cause is again before us on a supplemental transcript, which contains a transcription of the court reporter’s notes and a “frivolous appeal” brief filed by court-appointed appellate counsel, who was also retained counsel at trial. Therefore, we reinstate the appeal for further consideration.

Since we find that the brief filed by court-appointed counsel does not measure up to the decision of the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), nor to the decision of this court in Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974), we find it necessary to abate this appeal again for further proceedings. Moreover, since far too many appeals have had to be abated by this court for non-compliance with Anders and Currie, we find it necessary and appropriate to elaborate on those decisions and to discuss the duty of the trial courts of this state in seeing that the requirements of those decisions are met.

Following the giving of notice of appeal, the first decision on the merits of an appeal belongs to the trial court. Article 40.09(12), V.A.C.C.P., provides:

“It shall be the duty of the trial court to decide from the briefs and oral arguments, if any, whether the defendant should be granted a new trial by the trial court. This duty shall be performed within the period of thirty days immediately after the state’s brief is filed, or, if none be filed, then within the period of thirty days immediately after the last day on which the state’s brief could be timely filed. Omission of the court to perform this duty within such period shall constitute refusal of the court to grant a new trial to defendant.”

This rather unique provision in our appellate procedure was designed to give a conscientious trial judge the opportunity to see the briefs, the contentions and the appellate record as it will appear on review to the Court of Criminal Appeals with the authority at that point to grant a new trial if the trial judge believes the same is called for. If the reversible error is apparent, there is no logic in allowing the case to proceed through appellate process until the Court of Criminal Appeals reverses the case. Much delay and waste of judicial time and effort occurs otherwise. There was another purpose to the above provision and that was the hope that trial judges in performing their duty thereunder might lessen the heavy caseload of the Court of Criminal Appeals.

It appears, however, from the records coming before this court, especially those from metropolitan and other areas where dockets are crowded, the duty imposed by § 12 of Article 40.09, supra, is omitted more often than it is performed. Yet, this is an important duty, not only for the reasons discussed above but to afford an indigent appellant with the effective assistance of counsel. This is especially true in cases in which court-appointed counsel files a “frivolous appeal” brief. When this is done, the trial judge should determine if the “frivolous appeal” brief meets the minimum requirements of Anders and Currie. If this duty is not performed by the trial court, this court, many months later, must abate the appeal and remand the cause to the trial court for compliance with those decisions. Thus, where trial judges fail to

perform their duty and this court is left to enforce the requirements of Anders and Currie much delay results, judicial manpower is wasted and criticism is heaped upon the administration of criminal justice in Texas.

The Court of Criminal Appeals has the heaviest caseload of any state appellate court in this nation, and we are required to write an opinion in every case decided. The docket is overcrowded, the work overwhelming, nevertheless we are constantly confronted with reviewing records where the “frivolous appeal” briefs do not meet the requirements of Anders and Currie and nothing was done in the trial court before the record came to this court, even in those trial courts blessed with court administrators and coordinators, etc. The better practice would be for court-appointed counsel on appeal to inform the court by letter or other instrument available for filing that he has filed a “frivolous appeal” brief, and certainly clerk personnel should be alert enough to call the matter to the court’s attention, and trial court administrators and coordinators, available in many courts, should be examining these appellate records in order to call such matters to the trial judge’s attention.

We have had previous occasion to discuss the duty of trial judges in cases where no brief is filed in an indigent appellant’s behalf. In Yates v. State, 557 S.W.2d 115 (Tex.Cr.App.1977), we stated:

“It is settled that the Texas and United States Constitutions require that an indigent defendant is entitled to the effective assistance of counsel on appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); Hawkins v. State, 515 S.W.2d 275 (Tex.Cr.App.1974); McMahon v. State, 529 S.W.2d 771 (Tex.Cr.App.1975). And, the decision of the Supreme Court of the United States in Anders v. California, supra, requires that court-appointed counsel file a brief in appellant’s behalf. In the instant case the court-appointed counsel has failed to perform that duty.
“The appeal will be abated so that appellate briefs may be filed. It will be the duty of the trial court to see that this is done under Article 40.09, V.A.C.C.P. If this is not done, the trial court has authority to punish for contempt under Article 1911a, V.A.C.S.
“The court still has control over the case until the record reaches this Court. Rangel v. State, 408 S.W.2d 231 (Tex.Cr.App.1966). Even though a late brief is filed, he can grant a new trial. If the court refused to grant a new trial after a late brief has been filed and the record is forwarded to this Court, then this Court will determine if the brief will be considered on appeal. This will give the trial court an opportunity to pass upon the grounds raised in the brief before it reaches this Court.”

The statements in Yates are equally applicable to cases in which “frivolous appeal” briefs are filed in behalf of an indigent; and, it is the primary duty of the trial courts to see that the requirements of An-ders and Currie are met.

In Guillory v. State, 557 S.W.2d 118 (Tex.Cr.App.1977), we had occasion to discuss in further detail how trial judges might handle the situation where no brief is filed in an indigent appellant’s behalf. The following language from that opinion is equally applicable to cases in which “frivolous appeal” briefs are filed in behalf of an indigent:

“As has been stated above, the trial court also has the duty to provide an indigent defendant with the effective assistance of counsel on appeal. This assistance, however, cannot be afforded without requiring that counsel file a brief in an appellant’s behalf. The trial judge has the authority to require appointed counsel to file a brief in appellant’s behalf. Luna v. State, 527 S.W.2d 548 (Tex.Cr.App.1975). If a court-appointed attorney fails to file a brief within the time provided by Art. 40.09(9) and fails to request an extension of time from this Court under Art. 40.09(16), the trial court
still has the authority to require appointed counsel to file a brief in an appellant’s behalf. There are many ways for the trial court to exercise this authority. Upon learning that no brief has been filed in appellant’s behalf under Art. 40.-09(9), the trial court can issue an order commanding court-appointed counsel to file a brief within a specified period of time. If no brief is filed within that time, the trial court can issue another order requiring counsel to show cause as to why he should not be held in contempt. See Art. 1911a, supra. The trial court can also report counsel to the appropriate grievance committee for disciplinary action. In the alternative, the trial judge can relieve an appointed attorney who has not fulfilled his duties to his client and appoint an attorney who will act as an advocate to represent the indigent on appeal. The trial judge can also see to it that recalcitrant attorneys receive no further appointments to represent indigents in his court.”

We are confident that trial judges will perform their responsibility under Article 40.09(12), supra, and will see to it that any “frivolous appeal” briefs filed in their courts will pass muster under Anders and Currie. We now turn to what Anders requires of court-appointed counsel and the reviewing court.

In Anders the defendant’s appointed counsel had written the reviewing court, stating:

“I will not file a brief on appeal as I am of the opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders and have explained my views and opinions to him . . [H]e wishes to file a brief in this matter on his own behalf.”

In holding this insufficient, Mr. Justice Clark, speaking for a majority of the Court, stated:

“The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. [Footnote omitted]. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
“This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence to which an indigent defendant is entitled. This procedure will assure penniless defendants the same rights and opportunities on appeal — as nearly as is practicable — as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.” (Emphasis supplied.)

Thus, it may be seen that, in the last analysis, it is up to the court, not counsel, “after a full examination of all proceedings, to decide whether the case is wholly frivolous.” Anders further points out that this task cannot be performed by a reviewing court unless court-appointed counsel’s brief contains “ready references not only to the record, but also to the legal authorities as furnished it by counsel.” By filing a brief “referring to anything in the record that might arguably support the appeal” which supplies ready references to the record and legal authorities, counsel aids the reviewing court in studying a cold record.

As applied to Texas procedure, court-appointed counsel should, in his brief, refer to anything in the record that might arguably support the appeal and make ready references to the record and legal authorities in order to assist the trial court, in the first instance, to determine whether a new trial should be granted under Article 40.09(12), supra. If the trial court finds any of the legal points arguable on their merits, and therefore not frivolous, it must, prior to decision, afford the indigent the assistance of counsel in order to argue those points. If the trial judge declines to grant a new trial it should not allow court-appointed counsel to withdraw from the case unless other counsel is appointed, because the defendant is entitled to the effective assistance of counsel before this court. Moreover, if trial judges omit to perform their duty, many appeals will still have to be needlessly abated by this court.

One of the cases cited in footnote three in Anders for comparative purposes is Johnson v. United States, 124 U.S.App.D.C. 29, 360 F.2d 844 (1966). In that case the court pointed out that it was the policy in the United States Court of Appeals for the District of Columbia Circuit that in cases where court-appointed counsel concludes that an appeal is frivolous he must, nevertheless, “file a supporting memorandum analyzing the case legally,” citing references to the record, “and also citing any case or cases upon which counsel relied in arriving at his ultimate conclusion.” Circuit Judge (now Chief Justice) Burger, in a concurring opinion, went into further detail. He stated:

“The lawyer engaged in defense of an accused should be — and should be recognized as — a professional advocate with a highly important but none the less limited function, i. e., limited and circumscribed by the rules of the system and the ethics of the profession. [Footnote omitted.] At the trial stage his duty is to put the prosecution to its proof, to test the case against the accused, to insist that the procedural safeguards be followed and to put forward evidence which is valid, relevant and helpful to his client. On appeal his function is to point to trial errors, if such there be, and expound the applicable rules of law. In short he is to ‘put his client’s best foot forward’. This does not require nor warrant his advancing absurd or legally frivolous contentions. Counsel, not the client, must make the decisions as to how to present a case. [Footnote omitted.] Indeed it is neither necessary nor desirable to present baseless contentions in performing his duty to expose deficiencies or frailties in the trial proceedings.
“Even when his trained judgment tells him that the client’s cause on appeal is well nigh hopeless, the court-appointed counsel performs an important function by making sure that the reviewing court understands all the salient facts and all the relevant legal authorities before reaching a final decision. Although an appellate court must view the record in the light most favorable to the appellee, appellant’s counsel serves both his client and the Court by bringing all record facts to the reviewers’ notice. Indeed an advocate performs a most important function when by his analysis he presents the crit ical issues and brings to the Court all the facts and law and is prepared to respond to questions. [Footnote omitted.]
“This can often be an unenviable role for counsel after a jury has found the accused guilty. That this will be true in most appeals flows from the obvious fact that if the system of administering justice is properly run only a small proportion of appeals can be successful and even ‘winning’ is most often no more than the chance for a new trial before another jury. But we must remember that the advocate is not a guarantor for his client and he does not endorse or vouch for either the client or his case. He presents all factors favorable to appellant including in some cases advocating a change in rules of law if rational arguments can be advanced in support of the change. He may properly inform the Court of points his client argues but he is not required to press such points against his own informed professional judgment.
“Counsel whose motion [for leave to withdraw] we now deny must remember that under our adversary system an appellate court cannot function efficiently without lawyers to present whatever there is to be said on behalf of an appellant, however meager his claims may be, so that the Court can make an informed appraisal.
“The advocate’s role and duty on appeal, as at trial, is not to ‘win’ or set his client free, but to see that the case is tried and reviewed in accordance with a set of rules which have evolved from centuries of experience and which are still being changed. When the advocate has done that, he has discharged his duty. He should not be asked to do more and he ought not to do less. And when he has fulfilled that duty he is entitled to the protection of the court against reckless and irresponsible attacks from the client whose conviction is affirmed.” (Emphasis supplied.)

In the instant case the cold record before us consists of well over 600 pages. However, omitting the title page, the table of contents and the certificate of counsel, the brief consists of less than one and one-half pages. The only discussion of the merits of the appeal is the following:

“Upon examination of the transcript there does not appear to be any ground upon which an appeal can be based. The only matter that arose in the trial was a matter of credibility of the witnesses. This matter of credibility was within the province of the jury and they have reached the conclusion as cited above.
“There were no objections by defense counsel or any possible points of error. There were only two possible points of error in the entire transcript; this being two comments made by the prosecution attorney during his final summation, however, neither of these references to his belief of the Defendant’s guilt rises to the point of being able to be possible reversible errors.”

This brief does not meet Anders’ requirements. It does not refer us to anything in this cold record which might arguably support the appeal; it does not discuss any of the evidence adduced at the trial; it does not supply us with ready references to the record, nor does it supply us with any citation of legal authorities. The brief could not have been of any assistance to the trial court and, certainly, is of no assistance to this court.

In Currie we recognize that there are cases in which counsel cannot, in good faith, advance any arguable grounds of error. However, in those instances, we require the brief of counsel to contain a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. However, the brief filed by counsel in the instant case does not even meet the requirements of Currie. It must be kept in mind that this was not a case in which appellant pleaded guilty to the charges against him and judicially admitted his guilt. It was a contested case before a jury both on the issue of guilt or innocence and on the issue of the proper punishment to be assessed. Although counsel’s brief states that no objection on behalf of the defendant was made at the trial, a review of the record reveals that at least one such objection was made. Moreover, the brief does not address the State’s objections which were sustained by the trial court. It does not discuss the testimony adduced at the trial or the sufficiency of the evidence to support appellant’s conviction.

We now hold that in contested cases where “frivolous appeal” briefs are filed by court-appointed counsel the trial court should not accept and this court will not accept such briefs unless they discuss the evidence adduced at the trial, point out where pertinent testimony may be found in the record, refer to pages in the record where objections were made, the nature of the objection, the trial court’s ruling, and discuss either why the trial court’s ruling was correct or why the appellant was not harmed by the ruling of the court. Court-appointed counsel are expected to comply with the decisions in Anders and Currie and are admonished to follow the concurring opinion in Johnson.

The appeal is abated and the cause is remanded in order that the trial court might provide appellant with the effective assistance of counsel on appeal. See Guillo-ry v. State, supra.

It is so ordered.


author: DALLY, Judge.

text:
    Hilton ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.
    No. 54723.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 29, 1978.
    Nancy Hormachea, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Hogan Stripling, Asst. Dist. Attys., Houston, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for passing a forged check; the punishment, enhanced by two prior felony convictions, is imprisonment for life.

Appellant contends that there is a fatal variance between the check set out in the indictment according to its tenor and alleged to be a forgery and the check introduced into evidence by the State. The check which appears in the indictment bears the date “2/19/74” and the bank transit number “88-135.” The check which was introduced into evidence bears the date “12/19/74” and the bank transit number “88-1135.”

Where the instrument alleged to be forged is set out in the indictment according to its tenor, the writing offered in evidence must conform thereto with almost minute precision. Williams v. State, 164 Tex.Cr.R. 545, 301 S.W.2d 107 (1962); Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716 (1962); Pyor v. State, 88 Tex.Cr.R. 211, 225 S.W. 374 (1921). See also 3 Branch’s Penal Code, Sec. 1588 (2d ed. 1956). The strictest proof is required, and this is furnished only by an exact copy. Payne v. State, 391 S.W.2d 53 (Tex.Cr.App.1965); Morales v. State, 168 Tex.Cr.R. 462, 329 S.W.2d 283 (1959); Strong v. State, 143 Tex.Cr.R. 641, 160 S.W.2d 923 (1942); Hurd v. State, 99 Tex.Cr.R. 388, 269 S.W. 439 (1925).

We hold that the check introduced into evidence in this case does not sufficiently conform to the check set out in the indictment. Although appellant did not object to the admission of the check offered in evidence, the variance is fatal to the conviction. Payne v. State, supra.

The judgment is reversed and the cause remanded.


author: W. C. DAVIS, Judge.

text:
    Tommy HOLCOMB, Appellant, v. The STATE of Texas, Appellee.
    No. 55766.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 29, 1978.
    Allen C. Isbell, Houston, court appointed on appeal, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and Don R. Stricklin, Asst. Dist. Attys., Houston, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for burglary of a habitation. On October 6, 1976, the jury returned a verdict of “guilty” and thereafter the trial court assessed the punishment at ten years confinement in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. In his first ground of error, appellant contends that the indictment under which he was convicted was fundamentally defective for failing to allege a culpable mental state.

The indictment, in pertinent part, alleges that appellant:

“heretofore on or about April 28, 1976, did then and there unlawfully enter a habitation without the effective consent of Kikh Smith and therein attempted to commit rape.”

We agree that the indictment is fundamentally defective.

It is fundamental that an indictment must allege all essential elements of the offense sought to be charged. Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App.1977); Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977); Ex parte Gannon, 546 S.W.2d 266 (Tex.Cr.App.1976).

V.T.C.A., Penal Code, Sec. 6.02(a) and (b) provides:

“(a) Except as provided in Subsection (b) of this section, 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.
“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.”

Appellant was indicted under V.T. C.A., Penal Code, Section 30.02(a)(3), which provides that:

“(a) A person commits an offense if, without the effective consent of the owner, he:
“(3) enters a building or habitation and commits or attempts to commit a felony or theft.”

Since this statute does not plainly dispense with any mental element, one is required by Sec. 6.02, supra.

The indictment in the instant case omits the necessary culpable mental state. It is substantially the same as indictments held fundamentally defective for failure to allege a culpable mental state in Ex parte Gonzales, 557 S.W.2d 790 (Tex.Cr.App.1977), and Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App.1977).

Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1976), is inapplicable to the instant case. Therein, we held that in a burglary indictment under Sec. 30.02(a)(1), V.T.C.A., Penal Code, an allegation of an entry “with the intent to commit theft” was sufficient to allege the necessary culpable mental state. In the instant case, there is no similar mental element or allegation of intent. Neither is Dovalina v. State, 564 S.W.2d 378 (Tex.Cr.App.1978) applicable, since that dealt with an indictment for an attempted offense in which the allegation of “attempt” was held sufficient to allege the specific intent required under the criminal attempt statute, Sec. 15.01(a), V.T.C.A., Penal Code.

Since the indictment is fundamentally defective, the judgment is reversed and the prosecution under this indictment ordered dismissed.

      . This appeal was previously abated by this Court after a showing of appellant’s indigency, so that the court reporter could file the statement of facts. The complete record is now properly before us so the appeal is reinstated.

      . Appellant was indicted in two counts for burglary. Prior to submission of the charge to the jury, the first count was withdrawn, leaving the prosecution of this case under the count of the indictment which is raised in this appeal.

      . This indictment, omitting formal parts, alleged that the defendant “ . . did then and there enter a habitation without the effective consent of John Nelson, the owner, and therein attempted to commit and committed theft; . . ”

      . This indictment alleged in pertinent part that the defendant “did then and there enter a building without the effective consent of Gary Min-shew, the owner, and therein attempted to commit and committed theft . ”


text:
    Barbara Faye ARNOLD, Appellant, v. The STATE of Texas, Appellee.
    No. 56740.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 29, 1978.
    Don E. Ervin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Carl W. Hobbs, Asst. Dist. At-tys., Houston, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for communicating a false report. V.T.C.A., Penal Code, § 42.06. The punishment was assessed by the jury at one hundred eighty (180) days and a $1,000.00 fine, probated.

In her sole ground of error, appellant complains that the information is fundamentally defective in that while it alleges that the appellant initiated and communicated a report of a future bombing it does not allege to whom the report was communicated.

There was no motion to quash the information during the trial on the merits. The transcription of the court reporter’s notes is not in the record before us. Appellant relies upon fundamental error.

V.T.C.A., Penal Code, § 42.06 (False Alarm or Report), provides:

“(a) A person commits an offense if he knowingly initiates, communicates, circulates, or broadcasts a report of a present, past, or future bombing, fire, offense, or other emergency that he knows is false or baseless and that would ordinarily:
“(1) cause action by an official or volunteer agency organized to deal with emergencies;
“(2) place a person in fear of imminent serious bodily injury; or
“(3) prevent or interrupt the occupation of a building, room, place of assembly, place to which the public has access, or aircraft, automobile, or other mode of conveyance.
“(b) An offense under this section is a Class A misdemeanor.”

The “Practice Commentary” to said § 42.-06 states in part:

“This section proscribes not only false alarms to agencies of public safety but, in addition, false alarms to members of the public. It is, in several respects, broader than prior Texas law.”

Omitting the formal parts, the information alleges the appellant “on or about July 19, 1976, did then and there unlawfully knowingly and intentionally communicate and initiate a report of a future bombing knowing that report to be false and baseless and which would ordinarily prevent and interrupt the occupation of a place to which the public has access, namely, Winchester Club.”

Both parties agree that the information tracks the statute; however, the appellant claims fundamental error, while the State urges the lack of a motion to quash the information removes any reversible error. In American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974), it was held that if an accused goes to trial without raising objections with regard to failure to give notice of precisely that which he is charged with or to sufficiently allege facts to bar a subsequent conviction an accused may not urge such objection for the first time thereafter. Only if the defect be of such a degree as to charge no offense against the law, and thereby be void, will the exception to the substance be considered for the first time on appeal.

We observe that the form of the information is in conformity with those forms in Morrison and Blackwell, New Texas Penal Code Forms, § 46.02, pp. 68-69, and 3 Branch’s Texas Ann. Penal Statutes, 3rd ed., § 42.06, p. 205. In neither of these suggested forms is the name of the person to whom the alleged report is made alleged.

Further, the information alleges the appellant “did unlawfully knowingly and intentionally communicate and initiate a report of a future bombing . . . .” The word “communicate” means “to make known” or “to inform a person of” or “to convey the knowledge or information.” Webster’s Third International Dictionary. The Random House Dictionary of English Language, Unabridged Edition, 1967, defines “communicate” as “1. to impart knowledge of; make known . . . 2. to give to another; impart; transmit . . .”

The State agrees that it would probably be better practice to allege the name of the person to whom the alleged report prohibited by § 42.06 was made, but the instant information is not defective, fundamentally or otherwise.

Appellant’s contention is overruled.

The judgment is affirmed.


author: TOM G. DAVIS, Judge.

text:
    James Ray YOUNG, Appellant, v. The STATE of Texas, Appellee.
    No. 56750.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 29, 1978.

      Tom A. Boardman, Lawrence B. Mitchell, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John H. Hagler, Winfield Scott and David C. Schick, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for the offense of burglary of a building. V.T.C.A. Penal Code, Sec. 30.02(a)(1). The jury found that the appellant had been twice before convicted of felony offenses and punishment was assessed at life. V.T.C.A. Penal Code, Sec. 12.42(d).

The record reflects that B. D. Hammer, a Dallas police officer, answered a silent burglar alarm at a Dallas pharmacy on May 21, 1976. When he arrived at the scene, he observed that entry had been made through the building’s roof. Appellant was arrested inside the building with socks on his hands. The owner of the building testified that his store had been broken into and that drugs inside had been removed from their normal containers. The sufficiency of the evidence is not challenged.

In a single ground of error, appellant contends that the charge is fundamentally defective because the trial court failed to define the word “deprive.”

The indictment charged the appellant with burglary of a building with intent to commit theft. The charge as given provides in pertinent part as follows:

“Our law provides that a person commits an offense if without the effective consent of the owner, he enters a building (or any portion of a building) not then open to the public with intent to commit a felony or any theft.”

The trial court defined “theft” as given in the charge to mean: “the unlawful exercise of control over the corporeal personal property of another, without the effective consent of such other person, and with the intent to deprive such other person of said property.” In applying the law to the facts, the court charged the jury as follows:

“Now, if you find from the evidence, beyond a reasonable doubt, that in Dallas County, Texas, on or about the 21st day of May, 1976, the defendant, James Ray Young, did then and there intentionally or knowingly, enter a building not then and there open to the public, without the effective consent of Glenn Felty, the owner of said building, with intent to commit theft, to wit: with intent then and there to obtain property unlawfully from Glenn Felty, without the effective consent of Glenn Felty, the owner of said property, and with intent to deprive the said Glenn Felty, of said property, then, you will find the defendant guilty of burglary, as charged in the indictment, and you will make no finding in your verdict as to punishment.
“If you do not so find and believe from the evidence, beyond a reasonable doubt, or if you have a reasonable doubt thereof, then, you will find the defendant not guilty.”

The appellant argues that since the word “deprive” is defined in V.T.C.A. Penal Code, Sec. 31.01(3), it should have been defined in the charge. The appellant’s position is that since the “intent to commit theft” is a key element in the offense of burglary, the failure of the trial court to define every term which makes up the offense of theft is fundamental error.

In Mendoza v. State, 491 S.W.2d 888 (Tex.Cr.App.1973), a conviction for murder with malice was reversed where the charge authorized the conviction for murder without requiring the jury to find an intent to kill. In Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975), this Court held a charge fundamentally defective which totally failed to apply the law of rape to the evidence.

Rider v. State, 567 S.W.2d 192 (Tex.Cr.App.1978), is instructive. The court in Rider defined theft abstractly in the context of a burglary case utilizing the elements of theft as they had existed prior to 1975 amendments to V.T.C.A. Penal Code, Sec. 31.03. See Rider v. State, supra. With respect to the error in the definition of theft in Rider, this Court observed:

“While the trial court in the instant case defined ‘theft’ abstractly under the third mode of the former version of the statute rather than under the 1975 amendments as it should have done, there is no error because the meaning was essentially the same and no objection was addressed thereto.”

The definition of “deprive” under V.T. C.A. Penal Code, Sec. 31.01(3), is clearly more expansive than the common usage of the term since, for example, it may include “to dispose of property in a manner that makes recovery of the property by the owner unlikely.” The failure to include the statutory definition of the term “deprive” cannot be characterized as injurious in any manner to the rights of the appellant. Cf. Romo v. State, 568 S.W.2d 298 (Tex.Cr.App.1978). Nor is this a ease where the charge fails to apply the law to the facts, see, e. g., Harris v. State, supra, or where the charge authorizes conviction on a theory not alleged in the indictment. See, e. g., Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977).

We find no fundamental error in the court’s charge.

The judgment is affirmed.


text:
    Trinidad H. URIBE, Appellant, v. The STATE of Texas, Appellee.
    Nos. 56823, 56824.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 29, 1978.

      Antonio G. Cantu, on appeal only, San Antonio, for appellant.
    Bill M. White, Dist. Atty., Stephen P. Allison and Alan E. Battaglia, Asst. Dist. Attys., San Antonio, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeals are taken from convictions for murder and unlawfully carrying a handgun on a premises licensed to sell alcoholic beverages. V.T.C.A. Penal Code, Secs. 19.02 and 46.02. Appellant entered pleas of guilty and punishment was assessed by the court at ten years in each cause.

The record reflects that the appellant carried a pistol into a San Antonio bar licensed to sell alcoholic beverages and while there shot the deceased. There was no dispute as to these facts, but there was a conflict in the evidence as to whether the shooting was the result of a fight. The appellant did not enter the bar and immediately shoot the deceased. The altercation occurred after both had been on the premises for some time.

Appellant first contends that his convictions for two offenses arising out of the same facts and occurring at the same time violate the doctrine of carving and place him twice in jeopardy for the same act.

In Robinson v. State, Tex.Cr.App., 530 S.W.2d 592, the defendant entered the grounds of the University of Houston without authority and stole a bicycle which was the property of the University. This Court held that since the offense of criminal trespass was committed the moment the defendant entered the prohibited area of the University without authority, the subsequent theft of the bicycle from the premises was a separate transaction. Thus, convictions for both offenses did not violate the doctrine of carving.

In Hawkins v. State, Tex.Cr.App., 535 S.W.2d 359, the Court found that the possession of a prohibited weapon (a sawed-off shotgun) and a robbery committed with that weapon were separate and distinct offenses. The Court reviewed numerous cases concerning carving and double jeopardy and observed that when double jeopardy was found to attach, both the offenses had arisen from “an uninterrupted and continuous sequence of events or assaultive acts directed toward a single victim.” 535 S.W.2d at 362. The Court concluded that the possession offense was complete the moment the defendant was placed in possession of the sawed-off shotgun, and that the facts supporting that offense could not be characterized as an assaultive act directed toward the victim. This Court rejected the defendant’s contention that the trial court erred in overruling his plea of former jeopardy.

Here, the offense of carrying a pistol on licensed premises was complete when the appellant entered the bar. This act alone cannot be characterized as an assaultive act directed toward the victim. Only later was the decedent assaulted by the appellant. We hold that conviction for both offenses does not violate the carving doctrine nor the constitutional guarantees against double jeopardy.

Appellant next challenges the sufficiency of the indictment charging him with carrying a firearm on a premises licensed to sell alcoholic beverages. He maintains that the indictment is defective in that it fails to allege that he knew the premises was licensed to sell alcoholic beverages, and further that the indictment fails to allege that it was licensed when he committed the offense. No motion to quash was made, thus appellant maintains that the indictment was fundamentally defective.

The indictment alleges that:
“The Grand Jury of Bexar County, State of Texas, duly organized, empaneled and sworn as such, at the September Term, A.D., 1975, of the 144th District Court of said County, in Said Court at said term, do present that in the County and State aforesaid, on or about the 10TH day of AUGUST, A.D., 1974, TRINIDAD HUERTA URIBE did then and there knowingly and intentionally carry on and about his person A HAND GUN, on premises licensed and issued a permit by the State of Texas for the sale and service of alcoholic beverages, namely: LA CHIFA, located at 401 EL PASO, SAN ANTONIO, Bexar County, Texas; against the peace and dignity of the State. . . . ”
V.T.C.A. Penal Code, Sec. 46.02, provides: “(a) A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.
“(b) Except as provided in Subsection (c), an offense under this section is a Class A misdemeanor.
“(c) An offense under this section is a felony of the third degree if it occurs on any premises licensed or issued a permit by this state for the sale or service of alcoholic beverages.”

V.T.C.A. Penal Code, Sec. 6.02(b), provides that:

“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.”

The definition of this offense in Sec. 46.-02(a), supra, prescribes a culpable mental state. Section 46.02(c), supra, does not create a separate offense, however, as its only effect is to raise the penalty when the offense is committed in a designated place. Thus the offense created by Subsections (a) and (c), supra, does not require a culpable mental state beyond that contained in Subsection (a).

A helpful contrast can be drawn between Sec. 46.02, supra, and V.T.C.A. Penal Code, Sec. 46.04, which provides:

“(a) A person commits an offense if, with a firearm, he intentionally, knowingly, or recklessly goes:
“(1) on the premises of a school or an educational institution, whether public or private, unless pursuant to written regulations or written authorization of the institution; or
“(2) on the premises of a polling place on the day of an election.
“(b) It is a defense to prosecution under this section that the actor was in the actual discharge of his official duties as a peace officer or a member of the armed forces or national guard.
“(c) An offense under this section is a Class A misdemeanor.”

In Section 46.04, supra, the carrying of a firearm is not per se prohibited, but the act of carrying that firearm in specific locations is. The Legislature clearly required that the entry be made with a culpable mental state, rather than the act of possessing the firearm be done with a culpable mental state.

We find that the statute does prescribe a culpable mental state and the same is sufficiently alleged.

As to appellant’s contention that the indictment does not specify that the premises was licensed when he carried a handgun into it, we find this claim without merit. We hold that the indictment is sufficient to allege that the premises was licensed at the time of the offense.

Finally, the appellant contends that the trial judge should have withdrawn the guilty plea sua sponte when evidence was introduced raising the issue of self-defense.

This Court was recently faced with this same contention in Moon v. State, 572 S.W.2d 681 (Tex.Cr.App.1978), and held that the trial judge is no longer required to withdraw a guilty plea entered before the court even in the face of evidence which raises possible defenses to the crime. The Court overruled prior authority holding that the trial court must withdraw the guilty plea in such a situation.

We hold that the trial court did not err in failing to withdraw appellant’s guilty pleas.

The judgments are affirmed.


author: CLAYTON, Justice.

text:
    James Nelson FREEMAN et al., Appellants, v. SOUTHLAND PAPER MILLS, INC., Appellee.
    No. 8079.
    Court of Civil Appeals of Texas, Beaumont.
    April 13, 1978.
    Rehearing Denied April 27, 1978.

      Arthur Moore, Livingston, for appellants.
    James R. Cornelius, Jr., Lufkin, for appel-lee.
   CLAYTON, Justice.

Plaintiff, Southland Paper Mills, Inc., filed suit in trespass to try title against James Nelson Freeman, et al., for title to certain real property situated in Polk County, Texas. Defendants answered with a plea of “not guilty” and a plea of ten years adverse possession. Trial was to a jury, and, after all parties had rested, plaintiff and defendants each filed motions for instructed verdicts. The trial court granted plaintiff’s motion and refused defendants’ motion and entered judgment awarding plaintiff title in and to the subject real property. Defendants have perfected this appeal from such judgment.

In this appeal, defendants have brought forward two points of error. In their first point, defendants contend the trial court erred in granting plaintiff’s motion for instructed verdict because plaintiff, as a matter of law, “failed to prove title to the land in question for the reason that certain deeds upon which plaintiff relied were, by their express terms, subject to instruments and/or conveyances previously executed, and no evidence was introduced or admitted to describe the lands affected by all previous instruments and/or conveyances referred to in said deeds.” The second point contends the trial court erred in failing to grant defendants’ motion for instructed verdict for the same reason stated in the first point.

Plaintiff relied wholly on the establishment of record title to the subject property. The chain of title relied upon, and proved by proper instruments, was established from the original patent from the State to the instruments of conveyances direct to plaintiff.

The property in controversy was conveyed to plaintiff by Texas Long Leaf Lumber Company by deed dated January 31, 1953, whereby the surface estate was conveyed to plaintiff. This deed is hereinafter referred to as the surface deed. The same grantor, Texas Long Leaf Lumber Company, on the same date, conveyed certain mineral interests to plaintiff and to Champion Paper and Fibre Company, such deed being hereinafter referred to as the mineral deed.

The surface deed contains the following clause: “This conveyance is expressly made subject to any leases or other instruments heretofore executed by Grantor or its predecessors in title affecting any portion of said lands including all valid rights-of-way, pipelines, and other utilities easements.”

Defendants contend the surface deed contains “exceptions” from the land conveyed, and it was necessary for the plaintiff to prove that the lands sued for had not been previously conveyed and cite Mills v. Pitts, 121 Tex. 196, 48 S.W.2d 941 (1932), and Waggoner v. Dodson, 96 Tex. 415, 73 S.W. 517 (1903), as authority for such contentions. We do not agree.

The clause in the surface deed does not expressly except any portion of the conveyed land, but merely makes the conveyance subject to any leases or other instruments affecting the land. In Kokernot v. Caldwell, 231 S.W.2d 528, 531 (Tex.Civ.App.—Dallas 1950, writ ref’d), the court states:

“The term ‘subject to’ as used in the mineral deed has a well recognized meaning. ‘The words “subject to,” used in their ordinary sense, mean “subordinate to,” “subservient to" or “limited by.”
There is nothing in the use of the words “subject to,” in their ordinary use, which would even hint at the creation of affirmative rights.’ Englestein v. Mintz, 345 Ill. 48, 177 N.E. 746, 752. Shell Oil Co. v. Manley Oil Corporation, 7 Cir., 124 F.2d 714.
“ ‘Subject to,’ as used in conveyances, is a term of qualification and not of contract. Cox v. Butts, 48 Okl. 147, 149 P. 1090; Consolidated Coal Co. v. Peers, 166 Ill. 361, 46 N.E. 1105, 38 L.R.A. 624.”

The “subject to” clause in the surface deed does not exclude any of the land described in the deed of conveyance, but refers only to encumbrances on the property, and modifies, explains and limits the conveyance, and, in effect, incorporates any such prior instruments into the deed, so as to explain and clarify the nature and extent of the title being conveyed. See Cockrell v. Texas Gulf Sulphur Company, 157 Tex. 10, 299 S.W.2d 672, 676 (Tex.1956). It was not necessary, under this “subject to” clause, for the plaintiff to prove that the subject land had not been previously conveyed or leased.

The mineral deed under which plaintiff claims conveyed to plaintiff an undivided 78.9114 percent of the mineral estate and contained the following clause: “except such royalty and mineral interests as may have been heretofore excepted, reserved, retained, or conveyed by Grantor’s predecessors in title.”

The mineral deed also conveyed to Champion Paper and Fibre Company an undivided 21.0886 percent of the mineral estate.

Because of the “exception clause” in the mineral deed, defendants argue that it was incumbent upon plaintiff to prove that the mineral interest conveyed to it had not been previously conveyed, relying upon Mills v. Pitts, supra, and Waggoner v. Dodson, supra.

Plaintiff was the owner of an undivided interest in the mineral estate of the land in controversy, and it is well-settled law in this State that “[ojwners of undivided portions of oil and gas rights in and under real estate are tenants in common, and an oil and gas lessee of a co-tenant becomes a co-tenant with the co-tenants of his lessor,” Willson v. Superior Oil Co., 274 S.W.2d 947, 950 (Tex.Civ.App.—Texarkana 1954, writ ref’d n. r. e.), and cases cited therein.

“[Wjhen a cotenant seeking to recover the entire tract of land proves title in himself and his cotenants, the burden is not upon him to go further and make proof that his cotenants have not parted with their title.” Dahlberg v. Holden, 150 Tex. 179, 238 S.W.2d 699, 703 (1951).

Under the mineral deed, plaintiff was a co-tenant with anyone owning an undivided interest in the mineral estate, and as such had the right to recover in its trespass to try title suit without proving that its interest had not been previously conveyed.

The defendants made no claim of ownership by any conveyances connected with the sovereignty, and admittedly failed to prove any title by adverse possession. They are trespassers and complete strangers to the title to this property.

Plaintiffs, as co-tenants in the mineral estate, can maintain this action in trespass to try title against a trespasser and recover the entire possession. And, as to such stranger to the title, the defense of outstanding title is unavailable. See Whittle v. Johnston, 392 S.W.2d 867 (Tex.Civ.App.—Texarkana 1965, writ ref’d n. r. e.), citing Dahlberg v. Holden, supra. Both of defendants’ points are overruled.

The judgment of the trial court is affirmed.

AFFIRMED.