text:
    William Edward CORTEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 58630.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 20, 1978.
    State’s Motion for Rehearing En Banc Denied Oct. 11, 1978.
    Albert A. Pena, III, Leo N. Duran, Corpus Christi, for appellant.
    William B. Mobley, Jr., Dist. Atty. and Eric Brown, Asst. Dist. Atty., Corpus Christi, for the State.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for capital murder. V.T.C.A., Penal Code, Sec. 19.03(a)(2). The jury returned affirmative findings on each issue submitted under Art. 37.071(b), V.A.C.C.P., and, accordingly, the punishment was assessed at death.

The record reflects that during the noon hour on August 30, 1975, the appellant entered Sambo’s Restaurant in Corpus Christi. He sat alone in a booth drinking a Coke he had ordered. Loretta Whitely, the wife of the deceased, testified that she noticed the appellant staring at her while she was working at the cash register. She told her husband, Garry Whitely, that the appellant was making her feel uncomfortable. Whitely went over to the appellant and spoke to him and then advised his wife that the appellant would be leaving shortly. Appellant left the booth, walked to the cash register, and pulled a gun. Loretta Whitely heard the appellant say, “This is a holdup. Give me the money.” Garry Whitely opened the cash register and gave the appellant a stack of five dollar bills. According to Loretta Whitely, appellant then said, “I mean all of it.” She then told her husband to give the appellant all of the money, which he did. Apparently as a result of Garry Whitely shifting his weight, the appellant said, “Don’t come near me. I will shoot. If you don’t believe me I will blow your head off.” After stuffing the money into his shirt, appellant said, “Now I’m leaving. I’m going out of these doors, I don’t want anybody to follow me.” The appellant then backed out of the front door of the restaurant and fled. Garry Whitely ordered his wife to call the police from the back office.

From the testimony of a number of witnesses, it appears that appellant fled from the restaurant, followed shortly thereafter by Garry Whitely, who caught him in an adjacent parking lot. It appears that Whitely pushed or tackled the appellant from behind, who then fell forward to the ground. Then, in the words of one of the witnesses, “They went into a wrestle.” According to Kyle Scott, an eyewitness, “They wrestled for a few minutes; then . I heard the shots were fired and — well, several shots were fired, and then a few seconds later I noticed, well the defendant had — Garry Whitely had the defendant’s arm in an arm hold, holding the gun out in the air, and I heard one shot discharge, the last shot, and shortly after that — he [appellant] got up and Garry Whitely stayed down, then he [appellant] stood up and backed away from him . ..” The appellant then fled into a nearby Globe Department Store, where he was arrested shortly thereafter by the police.

The record further reflects that five shots had been fired, one grazing the deceased’s chin and tip of his shoulder, another entering his chest, and a third entering below his armpit. The appellant also received a minor gunshot wound to two fingers.

Garry Whitely died at a nearby hospital shortly thereafter without ever regaining consciousness.

At trial, appellant’s written confession was admitted into evidence after a Jackson v. Denno hearing.

At the punishment phase of the trial, the State introduced evidence of a 1954 Florida conviction for larceny of an automobile (State’s Exhibit Number 45), a 1956 Texas conviction for theft over $50.00 (State’s Exhibit Number 46), a 1960 Florida conviction for larceny of an automobile (State’s Exhibit Number 45), a 1961 Texas conviction for burglary (State’s Exhibit Number 47), a 1966 Colorado conviction for assault with a deadly weapon (State’s Exhibit Number 48), a 1970 Nebraska conviction for burglary (State’s Exhibit Number 49). In addition, the State introduced evidence that the appellant had been paroled from the Nebraska Penitentiary on August 13, 1975, some 17 days prior to the instant offense.

Dr. Charles Kutnick, a psychiatrist, was called as a witness by the State. In response to a hypothetical question outlining the facts of the instant case, he was asked if he had an opinion “as to whether a person under those circumstances is a person who would commit acts of violence in the future; that would act as a continuing threat to society? This calls for a yes or no answer.” The witness answered that he did have an opinion. His opinion was that a person described in the hypothetical situation would commit acts of violence in the future and would be a menace or continuing threat to society.

The appellant presented no evidence at either the guilt or punishment phases of the trial.

In ground of error number one, appellant contends that the trial court erred in admitting State’s Exhibit Number 45 into evidence because the documents contained therein were not properly authenticated. State’s Exhibit Number 45 is a “pen packet” from the state of Florida reflecting appellant’s prior convictions in 1954 for larceny of an automobile and in 1960, again for larceny of an automobile.

At the time State’s Exhibit Number 45 was offered into evidence, appellant objected on the ground that it was not properly authenticated. The objection was overruled. Contrary to the State’s argument, we find the objection was sufficiently specific to call the court’s attention to the basis of appellant’s objection. See Walls v. State, 548 S.W.2d 38 (Tex.Cr.App.1977).

The certification on State’s Exhibit Number 45, omitting the stationery letterhead, reads as follows:

“STATE OF FLORIDA )
COUNTY OF LEON )
I, LOUIE L. WAINWRIGHT, AS OFFICIAL CUSTODIAN OF ALL STATE PRISONERS AND THE RECORDS PERTAINING THERETO, DO HEREBY CERTIFY THE ATTACHED DOCUMENTS TO BE TRUE AND CORRECT COPIES OF THE INFORMATION OF INDICTMENT, SENTENCE OF THE COURT AND COMMITMENT TO STATE PRISON IN THE CASE OF THE STATE OF FLORIDA VS. WILLIAM EDWARD CORTEZ AS THE SAME APPEARS IN THE OFFICIAL RECORDS OF MY OFFICE.
GIVEN UNDER MY HAND AND SEAL, THIS THE 18th DAY OF JUNE A.D. 1976.
/3/ I,. L. Wainwrip-ht.____
LOUIE L. WAINWRIGHT, SECRETARY
DEPARTMENT OF OFFENDER REHABILITATION”

This document is also embossed with the seal of the Florida Division of Corrections.

The admission of official written instruments in a case such as this is governed by Art. 3731a, V.A.C.S. See Art. 38.02, V.A.C. C.P. Article 3731a, Sec. 4, V.A.C.S., provides in pertinent part as follows:

“Such writings or electronic records may be evidenced by an official publication thereof or by a copy or electronic duplication attested by the officer having the legal custody of the record, or by his deputy. Except in the case of a copy of an official writing or an official electronic recording from a public office of this state or a subdivision thereof, the attestation shall be accompanied with a certificate that the attesting officer has the legal custody of such writing. If the office in which the record is kept is within the United States or within a territory or insular possession subject to the dominion of the United States, the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of his office. . All such attested and certified instruments and the contents of the certificate and the title of the person making the same, shall be evidence of the matters, statements, representations and title contained therein.”

In Hutchins v. Seifert, 460 S.W.2d 955 (Tex.Civ.App. — Houston [14th Dist.], 1970, n. r. e.), the Court of Civil Appeals stated that without proper authentication under Art. 3731a, Sec. 4, V.A.C.S., an out-of-state judgment was inadmissible hearsay. See also Axton v. Kirby, 552 S.W.2d 620 (Tex.Civ.App. — Houston [14th Dist.], 1977, no writ). In Speights v. State, 499 S.W.2d 119 (Tex.Cr.App.1973), this Court held that where records were attested to by the clerk of the court within this state, no further certification was required by Art. 3731a, Sec. 4, V.A.C.S., and that the records were admissible. Accord, Alvarez v. State, 536 S.W.2d 357 (Tex.Cr.App.1976), cert. denied, 429 U.S. 924, 97 S.Ct. 325, 50 L.Ed.2d 292 (1977). In Kanaziz v. State, 382 S.W.2d 485 (Tex.Cr.App.1964), a Michigan pen packet was certified by the supervisor of records of the state’s prison of Southern Michigan. The judge of the circuit court of Jackson County, Michigan, where the prison and its records were located, certified as to the identity of the supervisor of records and the clerk of the circuit court of Jackson County, Michigan, certified as to the identity of the judge. This Court held that strict compliance with Art. 3731a, V.A.C.S., had been shown. See also Phillips v. State, 538 S.W.2d 116 (Tex.Cr.App.1976).

Although Art. 3731a, Sec. 4, states that “the certificate may be made by a judge of a court of record . . . authenticated by the seal of his office,” it is by no means mandatory that the certificate be made by the judge. In Aaron v. State, 546 S.W.2d 277 (Tex.Cr.App.1976), this Court stated:

“[T]he Louisiana Secretary of State certified to the identity of the warden and the records clerk of the Louisiana State Penitentiary. The records clerk certified that he was the legal custodian of the records and the copies admitted at trial were true and exact copies. We find that the pen packet was properly certified for admission as evidence.”

Similarly, in Easter v. State, 536 S.W.2d 223 (Tex.Cr.App.1976), this Court held that an Arkansas pen packet attested to by the superintendent of the Arkansas Department of Corrections and accompanied by a certificate from the Secretary of State of Arkansas certifying that the named person was the superintendent of the Department of Corrections and had legal custody of the records, which certificate bore the state seal of Arkansas, was properly admissible under the provisions of Article 3731a, Sec. 4, V.A.C.S. See also Gibbs v. State, 544 S.W.2d 403 (Tex.Cr.App.1976).

In Garner v. State, 552 S.W.2d 809 (Tex.Cr.App.1977), this Court held that the provision of Art. 3731a, Sec. 4, V.A.C.S., requiring certification that the attesting officer has legal custody of the official writing sought to be introduced is mandatory.

In Morgan v. State, 532 S.W.2d 85 (Tex.Cr.App.1976), an Ohio pen packet was accompanied by the following certificate:

“I, Robert L. Baker, swear that the enclosed copies are of the originalls (sic) received by me and that they are the true and accurate and certified.
/s/ Robert L. Baker Robert L. Baker, Supervisor Records Department”

This certificate was sworn to before a notary public in Warren County, Ohio. In reversing the conviction, this Court stated:

“There is nothing in the record to indicate that Mr. Baker is an employee of the prison system of Ohio. The record does not contain a certificate from a judge in the county where the prison is located or from the clerk of a court in that county. There is nothing to indicate that the papers were received from the legal custodian of the records in Ohio.”

The court also noted, “We find the Ohio papers . . . were improperly considered by the jury in assessing appellant’s punishment.” The conviction was reversed.

In the instant case, there is no certificate by a judge of a court of record in which the record is kept certifying the attesting officer has legal custody of the asserted writings. See Kanaziz v. State, supra; Garner v. State, supra; Morgan v. State, supra. Nor is there a certificate from the Secretary of State of Florida or any other appropriate officials certifying as to Louie Wainwright’s position and to the fact that he has custody of the documents as asserted in his certificate. See Easter v. State, supra; Aaron v. State, supra; Gibbs v. State, supra. It is clear, therefore, that the trial court erred in admitting State’s Exhibit Number 45 into evidence.

The State argues that the admission of the 1954 and 1960 Florida convictions is, under the facts of this case, harmless error. We cannot agree. Although the evidence in this case shows that the murder was committed while in the course of committing robbery, the facts should be contrasted with the violent and calculated acts of the defendants in Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1977), cert. denied 431 U.S. 923, 97 S.Ct. 2642, 53 L.Ed.2d 250; Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977), cert. denied 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294; and Felder v. State, 564 S.W.2d 776 (Tex.Cr.App.1978). The evidence at the punishment phase of the trial consisted of proof of six prior convictions, only one of which (Colorado, assault with a deadly weapon) appears to involve a crime of violence, and the testimony of a psychiatrist. As a result of our finding that State’s Exhibit 45 was improperly admitted, two of appellant’s six prior convictions should not have been considered by the jury. Considering the facts of the primary offense and the nature of appellant’s prior record, we cannot say that the erroneous admission of two prior convictions could not have affected the jury in their answers to the special issues submitted to them under Art. 37.071(a), V.A.C.C.P.

The judgment is reversed and the cause remanded.

DOUGLAS, DALLY and W. C. DAVIS, JJ., dissent.

      . 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). See Art. 38.22, Sec. 6, V.A.C.C.P.

      . Appellant’s confession, omitting the warnings and signatures, reads:
      “My name is William Edward Cortez. I am 37 years old. I was born on April 1, 1937, in Unadilla, Georgia. I was working at Northwestern Metal in Lincoln, Nebraska. I was living in a trailer house on 2545 Comhusker Highway in Lincoln, Nebraska. Two or three days ago I left Lincoln, Nebraska and hitchhiked to Dallas, Texas. I have several relatives around Dallas. I saw one of my sisters, Alva, while I was there. I don’t know her last name, she just got married. While I was in Dallas I stayed on Elm Street at a ‘Flop Joint’. On Friday, August 29, 1975, I left Dallas and hitchhiked to Corpus Christi. I caught a ride with a guy with a pickup and camper. He was by himself, but he had a dog with him. We got to Corpus Christi on the morning of August 30, 1975. He brought me to a camping area where there was a lot of water. After he let me off I caught another ride to some main street in Corpus Christi. I walked for awhile and saw a restaurant. I went inside and ordered a coke or pepsi. I sat down at a booth on the left side of the register. While I was drinking the drink, I saw a bug in the drink. I told the waitress, and then I told her that I wanted to see the manager. I told the manager that the drink had a bug in it and he told me that he didn’t have any bugs in there. I can’t remember whether he told me that I had to pay for the drink or not. He started to walk away from me, I told him to give me all of the money. I had a .22 cal. revolver in my belt and pulled it out. I bought the gun from a dude on the street in Dallas. I paid him $20.00 for it. I bought it the day before I left. The manager went to the register to get the money. The place was crowded and 1 didn’t think that there would be any hassle. He was acting ‘jumpy’ and didn’t seem to want to give me the money. After he gave me the money I put it into my pocket and went out the front door. I still had the gun in my hand and started running toward a shopping center. While I was running, someone jumped me from behind and we both fell down on the ground. I don’t know who it was but while we were wrestling around on the ground I started pulling the trigger on my gun which I still had in my hand. I don’t know how many times I fired the gun. I know that the gun holds six rounds but I don’t know whether I fired all of them or not. I broke loose from him and ran. I ran into the department store that was in the shopping center. When I got inside the store I saw that I was shot on two fingers of my left hand. I was looking for a place to get out of the back of the store and the law came into the store and arrested me. They brought me to the Police Station and booked me upstairs. They didn’t put me in a cell they took me to the hospital to have my fingers treated. After they x-rayed my fingers they bandaged them and the police brought me back and put me in the cell. A little later I was taken to a court room and a judge warned me of my rights. Sgt. Boggess warned me of my rights again before I gave him this statement. He also told me that I was arrested for Capital Murder. 1 already knew that I had shot the guy that I was wrestling with and that he had died. I gave this statement to Sgt. Boggess of my own free will without any threats or promises being made to me in regard to it and this statement is true and correct to the best of my knowledge. End.”


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    David Wayne McWHERTER, Appellant, v. The STATE of Texas, Appellee.
    No. 58769.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.
    State’s Motion for Rehearing En Banc Denied Oct. 18, 1978.

      John W. O’Dowd, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Robert N. Burdette, Asst. Dist. Attys., Houston, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for aggravated robbery, wherein the jury assessed the punishment at fifty (50) years’ confinement in the Department of Corrections.

Initially, appellant contends the court reversibly erred in denying his request to change his plea from “guilty” to “not guilty” made before the retirement of the jury. We agree and reverse.

The record reflects that the appellant entered a plea of guilty before a jury on March 8, 1977. After the State rested its case and prior to the time the charge was read to the jury and prior to the jury’s retirement, the appellant personally and through his counsel made a motion to the court to permit him to change his plea from “guilty” to “not guilty.” The court denied the motion, thus refusing to change his plea. Subsequently, the court charged the jury to find the appellant guilty on his guilty plea.

A liberal practice prevails in this state concerning the withdrawal of a guilty plea. Garcia v. State, 91 Tex.Cr.R. 9, 237 S.W. 279 (1921); Stanton v. State, 159 Tex.Cr.R. 275, 262 S.W.2d 497 (1953). It is well established that where a guilty plea is before a jury the accused may at any time before the retirement of the jury withdraw his plea and thus put upon the State the burden of proving his guilt beyond a reasonable doubt. Alexander v. State, 69 Tex.Cr.R. 23, 152 S.W. 436 (1912); Garcia v. State, supra; Stanton v. State, supra; Darden v. State, 430 S.W.2d 494 (Tex.Cr.App.1968); Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App. 1968); Lewis v. State, 438 S.W.2d 816, 818 (Tex.Cr.App.1969). See also Ralls v. State, 151 Tex.Cr.R. 146, 205 S.W.2d 594 (1947). Thus, the accused may as a matter of right withdraw his guilty plea without assigning reason therefor at any time before the retirement of the jury, but thereafter, however, the withdrawal of the plea would be within the discretion of the court.

The State acknowledges the rule but urges the error in the instant case was harmless error. Reliance is placed upon Wilson v. State, 515 S.W.2d 274 (Tex.Cr.App. 1974). In Wilson this court recognized the rule here involved in a bench trial (see footnote # 1) and held the court erred in refusing to allow the defendant to withdraw his guilty plea prior to the time the court had taken the cause under advisement or pronounced judgment, but held the error harmless as the defendant thereafter took the witness stand and made a judicial confession, a written confession was also introduced and evidence of guilt was overwhelming. In the instant case the State claims the evidence of guilt was overwhelming and the appellant did not put on any evidence after the withdrawal request, so the error was harmless. Quite to the contrary the appellant claims the insufficiency of the evidence could have been argued to the jury, and notes that an oral confession was admitted into evidence over his objection and without a separate hearing upon request on the voluntariness of such confession. See Article 38.22, V.A.C.C.P.; Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

Whatever the continued viability of Wilson, given its particular fact situation, the appellant here made a timely request to withdraw his guilty plea and the trial court reversibly erred in not allowing the trial to proceed upon a plea of not guilty before the jury.

For the reasons stated, the judgment is reversed and the cause remanded.

      . We observe that the court admonished the appellant on his guilty plea as required by Article 26.13, V.A.C.C.P., in the presence of the jury. Such practice, as well as the practice of arraigning a defendant in the presence of the jury, should not be condoned and should be avoided. Wood v. State, 515 S.W.2d 300 (Tex.Cr.App. 1974); Minafee v. State, 482 S.W.2d 273 (Tex.Cr.App. 1972), and cases there cited. Appellant here made no objection, however, until such time as he sought to withdraw his guilty plea.

      . The rule is also applied to bench trials giving the defendant the right to withdraw his guilty plea before the trial judge takes the case under advisement or pronounces judgment. Milligan v. State, 168 Tex.Cr.R. 202, 324 S.W.2d 864 (Tex.Cr.App.1959); Rails v. State, supra; Stanton v. State, supra.

      . The appellant questions the admissibility of the oral confession without a separate hearing in another ground of error. We do not reach that contention in view of our disposition of the appeal. Nevertheless, it should be remembered that the entry of a guilty plea does not suspend the rules of evidence.


author: W. C. DAVIS, Judge.

text:
    Hugh Winfield BREM, Appellant, v. The STATE of Texas, Appellee.
    No. 55467.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 27, 1978.

      Tom Mills, Jr., Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Gary Love, Bob Hinton and Tom Lillard, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for aggravated rape. After a trial before a jury, the court assessed appellant’s punishment at forty-five years confinement in the Texas Department of Corrections.

The sufficiency of the evidence to support the conviction is not challenged. The record reflects that on May 13, 1976, a little before 2:00 a. m., the prosecutrix was sleeping on a couch in the living room of her apartment. She woke up to see a man standing next to the couch, wearing only a white Tee-shirt and a stocking over his face, smelling strongly of cologne. The prosecu-trix testified that the man, whom she identified as appellant, held a knife to her throat and had sexual intercourse with her without her consent. She testified that after she thought he was gone she called the police and officers arrived at her apartment shortly thereafter. She also testified that some nine hours after the rape she identified appellant in a lineup as her assailant.

Police Officer Edwin Lowe testified that he received a report of a rape at about 2:05 a. m. on May 13th. He stated that he immediately drove to appellant’s house, where he saw that appellant’s car was gone. He testified that a few minutes later appellant arrived home in his car. Lowe stated that he detained appellant for five to ten minutes, waiting for other officers to arrive. Lowe testified that at that time appellant was wearing a white Tee-shirt and blue jeans which were partially unbuttoned. He also stated that appellant was wearing no underwear and that he had a strong odor of cologne. A pat-down frisk revealed that appellant was carrying a knife, which the prosecutrix identified as similar to the one used in the rape.

Officer Reese Bullard testified that when he received a call about the rape he went to the prosecutrix’s apartment, where he smelled the odor of cologne. He left shortly and went to appellant’s house. When he arrived and saw appellant, he smelled the same odor of cologne as he had smelled in the apartment.

The record reflects that appellant was subsequently arrested and taken to jail, where he later signed a consent form for a search of his car. A subsequent search of his car revealed a bottle of cologne, which was introduced into evidence.

Dr. Rigoberto Santos, a medical doctor at Parkland hospital, testified that he examined the prosecutrix in the early morning of May 13th and found sperm in her vagina.

Appellant did not testify in his own behalf.

In his first ground of error, appellant contends that the trial court erred in overruling his motion to quash the indictment. The indictment, in pertinent part, alleged that appellant did:

“intentionally and knowingly have sexual intercourse with M_ B_ W_, hereinafter called Complainant, a female not his wife, without'the consent of the Complainant, by means of force and threats, and the Defendant did intentionally and knowingly compel the Complainant to submit to the said act of sexual intercourse by threatening serious bodily injury to be imminently inflicted on the Complainant.”

Appellant now contends that the trial court should have quashed the indictment because (1) it failed to allege the manner and means of force and threats used by appellant; (2) it failed to allege the circumstances which made the act of sexual intercourse non-consensual; and (3) it failed to allege to whom the force and threats were directed. Appellant’s contentions are without merit.

Contrary to appellant’s assertion, an indictment for aggravated rape need not set out or describe the specific actions or deeds of the defendant which communicated the threat of serious bodily injury to the prosecutrix. See Watson v. State, 548 S.W.2d 676 (Tex.Cr.App.1977); Childs v. State, 547 S.W.2d 613 (Tex.Cr.App.1977). The indictment sufficiently alleged the act committed by appellant which “aggravated” the rape under See. 21.03(a)(2), and therefore was not subject to a motion to quash on this ground.

Appellant’s contention that the indictment should have been quashed because it failed to allege the circumstances which made the act of intercourse non-consensual is likewise without merit. The indictment alleged that appellant had sexual intercourse with the complainant “without the consent of the Complainant, by means of force and threats.” It is not necessary that the indictment allege the facts and circumstances of the offense which made the act of sexual intercourse non-consensual. The allegations of “force” and “threats” were sufficient to place appellant on notice of the kind of lack of consent upon which the State would base its case. V.T.C.A., Penal Code, Sec. 21.02(b)(1), (2). See Watson v. State, supra; Childs v. State, supra; cf. Rogers v. State, 550 S.W.2d 78 (Tex.Cr.App.1977). This being true, no further factual allegations were necessary and the indictment was not subject to a motion to quash on this ground.

Appellant also contends that the indictment is defective in that it fails to allege to whom the force and threats were directed. Appellant raises this ground for the first time on appeal since it is not contained in his motion to quash; therefore, only jurisdictional defects will be considered. Seaton v. State, 564 S.W.2d 721 (Tex.Cr.App.1978); Hughes v. State, 561 S.W.2d 8 (Tex.Cr.App.1978); American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). A jurisdictional defect in an indictment is a defect which renders the indictment insufficient in that it fails to allege the constituent elements of the offense. Terry v. State, 517 S.W.2d 554 (Tex.Cr.App.1975).

Therefore, this Court must ascertain whether this indictment, when read as a whole, sufficiently charges the offense of aggravated rape. Childs v. State, 547 S.W.2d 613 (Tex.Cr.App.1977); Clark v. State, 527 S.W.2d 292 (Tex.Cr.App.1975). We hold that the absence of the name of the person to whom the threats were directed does not render the indictment fundamentally defective. The name of the person to whom the threats under V.T.C.A., Penal Code, Sec. 21.02(b)(2) were directed is not a necessary element in the indictment. See Childs v. State, supra. Appellant’s first ground of error is overruled.

In his second and third grounds of error, appellant contends that the fruits of an illegal detention should have been suppressed. The record reflects that Officer Lowe arrived at appellant’s house shortly after receiving a radio report of the rape. Appellant arrived home a few minutes later, and was detained by Officer Lowe for five to ten minutes, until another officer arrived and placed him under arrest. During this brief detention of appellant, Officer Lowe observed appellant and testified as to this description at trial. Lowe also conducted a “pat-down” frisk, which revealed a pocket knife in appellant’s pants. Appellant contends that none of this evidence was admissible as it was obtained as a result of an illegal detention. We disagree.

Out of the presence of the jury, Officer Lowe testified as to the basis for his detention. He testified that during May of 1976 he had been involved in the investigation of other rapes in town; as a result of investigation, he had discovered the name of a suspect in the rapes; appellant was that suspect; there had been other investigations which had placed appellant at the scenes of other rapes within fifteen minutes of the rapes; there had been other investigations which had lead officers to appellant as a suspect. As a result, when he received the radio call about the rape on May 13th Officer Lowe drove to appellant’s house and waited. Appellant arrived a few minutes later, and Lowe recognized the car. He testified that appellant fit the physical description of the assailant which was broadcast on the radio. He approached appellant and observed that appellant’s jeans were buttoned only at the top and the bottom, and that he was wearing no underwear. As a result of all of the information of which Lowe was aware at that time, he detained appellant for five to ten minutes, until another officer arrived and made the arrest.

Circumstances which do not constitute probable cause for arrest may justify temporary detention for the purposes of an investigation, since an investigation is considered to be a lesser intrusion on the personal security. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Adams v. State, 552 S.W.2d 812 (Tex.Cr.App.1977); Milton v. State, 549 S.W.2d 190 (Tex.Cr.App.1977); Perez v. State, 548 S.W.2d 47 (Tex.Cr.App. 1977); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976).

The detention is justified if the law enforcement officer has specific, articulable facts, which in light of his experience and general knowledge, together with rational inference from those facts, would reasonably warrant the intrusion on the freedom of the citizen stopped for further investigation. Terry v. Ohio, supra; Adams v. State, supra; Milton v. State, supra; Ablon v. State, supra. Further, reasonable cause for an investigative stop can be based on information supplied by other persons. Adams v. Williams, supra; Milton v. State, supra.

In the instant case, Officer Lowe had been involved in the investigation of recent rapes in the area; due to his investigation and that of other police officers, he knew that appellant was a prime suspect in the rapes; he knew that appellant had been at the scenes of other rapes; he knew that a rape had just been committed and that appellant’s physical description matched that of the assailant. Officer Lowe observed appellant arrive home shortly after the rape was reported and observed.his pants partially unbuttoned. We hold that, on the basis of all of this information of which Lowe was aware prior to his detention of appellant, Officer Lowe was justified in detaining appellant some five to ten minutes for further investigation. Terry v. Ohio, supra; Adams v. Williams, supra; Adams v. State, supra; Milton v. State, supra; Perez v. State, supra; Ablon v. State, supra. Thus, Officer Lowe’s testimony concerning his detention of appellant was properly admitted.

Further, we hold that the knife discovered by Officer Lowe during a “pat-down” frisk of appellant was also properly admitted. As was stated in Terry v. Ohio, supra:

“Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries; and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.”

Officer Lowe testified that he conducted the “pat-down” search for his own protection. The record reflects that at that time Lowe knew that appellant was a suspect in a series of assaultive crimes; he observed that appellant matched the description of an assailant in a recent assaultive crime. Therefore, he was justified in conducting the limited search for his own protection to determine if appellant was armed. Terry v. Ohio, supra; Milton v. State, supra; Perez v. State, supra; Ablon v. State, supra. The knife found in this limited search was properly admitted. Appellant’s second and third grounds of error are overruled.

In his fourth ground of error, appellant contends that the trial court erred in admitting evidence seized in a search of appellant’s car. The record reflects that after he was in custody a police officer obtained appellant’s consent to search his car. The subsequent search of the car revealed a bottle of cologne which was introduced into evidence at trial. After a hearing out of the presence of the jury, the trial court found that appellant’s consent to the search was freely and voluntarily given, without coercion or duress. We hold that the record supports the trial court’s findings.

Appellant testified at this hearing, and admitted that he voluntarily signed the consent to search form. He testified that he had been read his Miranda rights prior to this time, and that he had talked to his attorney just before he signed the form. He further stated that his attorney had told him not to sign any statements but that the attorney did not say anything about not signing anything else. Appellant stated that he was told that “it would look bad” if he refused to give the consent to search.

Police Officer Donald Robertson testified that he approached appellant at about 1:00 p. m. regarding the search of the car. Robertson testified that he advised appellant of his rights, that appellant gave his consent to the search, and that appellant did not hesitate to sign the consent form. He stated that he had spoken with appellant’s attorney prior to this but did not remember the issue of the search mentioned. Robertson stated that he fully informed appellant that any evidence found in the car could be used against him. He further denied that he told appellant that if favorable evidence was found it could be used for him. He denied that he told appellant that the car had already been searched or that if appellant refused it would look like he (appellant) was trying to hide something.

The protections against war-rantless searches and seizures may be waived by an individual’s consent to a search. Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977); Kolb v. State, 532 S.W.2d 87 (Tex.Cr.App.1976). The burden of proof is upon the State to show that consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Rice v. State, supra. Whether a consent to search was voluntary is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Rice v. State, supra.

In the instant case, appellant testified that he voluntarily signed the consent form. It is uncontroverted that appellant had been warned of his rights and had been told that anything found in the search could be used against him. Officer Robertson’s testimony contradicted any testimony by appellant that his consent was given under duress or coercion. From the totality of these circumstances, we conclude that appellant’s consent to search his car was freely and voluntarily given. Appellant’s fourth ground of error is overruled.

In his fifth ground of error, appellant contends that the trial court erred in admitting evidence that the prosecutrix had identified appellant in a pre-trial lineup which was impermissibly suggestive. The record reflects that approximately nine hours after the offense the prosecutrix viewed a lineup and identified appellant as her assailant. The trial court held a hearing out of the jury’s presence and found that the prosecu-trix’s identification of appellant was based solely upon her having viewed appellant at the time of the offense and that the in-court identification was not influenced by her having viewed the lineup.

Where the in-court identification is based upon observations by the witness other than the lineup identification and thus is of independent origin, then the in-court identification is admissible even though the lineup procedure may have been improper. Thompson v. State, 480 S.W.2d 624 (Tex.Cr.App.1972). Where the complaining witness’ identification of the defendant is based upon an adequate opportunity to view the defendant at the time of the offense, then the identification is of independent origin. Bermudez v. State, 533 S.W.2d 806 (Tex.Cr.App.1976).

In the instant case, the record clearly supports the trial court’s finding that the prosecutrix’s identification of appellant was based upon her view of him at the time of the offense. She testified that she got a good look at appellant while he was raping her. Although he had a stocking over his face, it did not distort his facial characteristics. She testified that many lights in her apartment were on during the rape and that one light was shining directly in appellant’s face while he was raping her. She further testified that if she had never seen the lineup she would still be able to identify appellant; that the lineup did not help her in-court identification; and that her identification of appellant was made strictly from her memory of him during the rape. Thus, the evidence supports the trial court’s findings that the in-court identification was of independent origin and not the result of the lineup; therefore, the in-court identification by the prosecutrix was properly admitted. Bermudez v. State, supra; Thompson v. State, supra.

In his sixth ground of error, appellant contends that “the trial court erred in refusing to require the prosecution to investigate for specifically requested evidence favorable to the accused.

The record reflects that appellant filed three motions for discovery, with numerous requests for information. All of these were granted by the trial court. In his third motion for disclosure of evidence favorable to appellant, appellant requested,

“3) Other evidence indicating that another person is now, as the defendant remains in custody, raping people in the Dallas Area in a manner which leads the police or District Attorney to believe they also may be responsible for the rape for which the defendant now stands charged.”

This motion was also granted by the court. At a hearing held prior to trial, the following transpired:

“MR. MILLS: . . . I think Mr. Hinton [the prosecutor] knows that there are other rapes that have taken place when he had the Defendant in custody and what I am specifically asking for here is whether or not any of those cases or identifications have produced evidence which show my client not guilty of the offense for which he has been indicted. In other words, either because of similar scheme of method of committing.
“THE COURT: He’s indicted on one case?
“MR. MILLS: Yes, he’s indicted on one case. There have been many, many rapes taking place.
“THE COURT: How in the world could I force Mr. Hinton to investigate any and all rape cases in Dallas County to see whether or not they are similar in nature?
“MR. MILLS: That he already knows about.
“THE COURT: Do you know of any?
“MR. HINTON: No. I know that there have been rapes that have occurred since he has been in jail.”

Hinton then denied that he had any knowledge of other rapes similar to the one for which appellant was to stand trial, and stated that he had been assigned no other rape cases since appellant’s. Later during the hearing on appellant’s discovery motions, Hinton asked that the record reflect that each motion that had been granted had been fully complied with by the State. Mills did not voice an objection and the hearing was later recessed.

Later during the course of trial, out of the presence of the jury, appellant requested the opportunity to examine a police officer regarding other rapes in the community. The trial court granted appellant’s request. Officer Bullard testified that there had been other rapes committed since appellant’s arrest. He testified that he had not been investigating these, and that he had no knowledge of rapes which were similar in method or nature to that for which appellant was on trial. He stated that Officers Raines and Wallace would be the investigating officers.

Later during the trial, counsel for appellant stated that, regarding this motion for information, he had asked Hinton, the prosecutor, to talk to Officers Wallace and Raines concerning their knowledge of other rapes.

After testimony had concluded, another hearing was held out of the presence of the jury, during which defense counsel again requested this information of Hinton. Hinton reiterated that he had no knowledge of the information which the defense requested. After a lengthy discussion, the trial court directed Hinton to talk to Officer Robertson to see if he had any knowledge of the information which appellant requested. Hinton agreed to do so. Thereafter, the record is silent as to this matter.

We hold that the trial court did not err in refusing to require the prosecutor to investigate the other rapes and then turn the material over to appellant. The prosecutor has no duty to investigate other cases in order to supply the defense with information concerning them.

When appellant argued his motion before the trial court, he specifically asked for the information concerning other rapes of which Hinton was already aware. The court granted this motion and Hinton stated that he had no such information. Upon questioning by appellant, Officer Bullard testified that he had no knowledge of the information which appellant was seeking.

At appellant’s request, the trial court ordered Hinton to talk to Officer Robertson to see if Robertson had any of the information which appellant was requesting. Thereafter, the record does not show that Hinton did not comply with the court’s request or that appellant did not receive information.

Appellant has received all of which he is entitled under his motion. He has not shown that the information which he requested was in the possession of the State, and, in fact, the record indicates that it was not. Therefore, he cannot complain on appeal that he was denied discovery. See Hoffman v. State, 514 S.W.2d 248 (Tex.Cr.App.1974); Rodriguez v. State, 513 S.W.2d 22 (Tex.Cr.App.1974); Martinez v. State, 507 S.W.2d 223 (Tex.Cr.App.1974); Garcia v. State, 454 S.W.2d 400 (Tex.Cr.App.1970).

Article 39.14, V.A.C.C.P. does not allow broad exploration of prosecution files. Mott v. State, 543 S.W.2d 623 (Tex.Cr.App.1976). Where there is no showing that the matters sought to be discovered are material, or that the items sought are in the possession of the prosecution, appellant is not entitled to relief on appeal. See Mott v. State, supra.

Further, if the matters which appellant sought were police reports or offense reports concerning other rape offenses, these were not discoverable since they are the work product of the police and are exempt from pre-trial discovery. Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App. 1975); Sheldon v. State, 510 S.W.2d 936 (Tex.Cr.App.1974); Powers v. State, 492 S.W.2d 274 (Tex.Cr.App.1973); Bradshaw v. State, 482 S.W.2d 233 (Tex.Cr.App.1972). Further, this work product exemption under Article 39.14 extends to prosecution files and papers. Mott v. State, supra; Hoffman v. State, supra; Nelson v. State, 511 S.W.2d 18 (Tex.Cr.App.1974).

Most important, however, is that appellant has made no showing that the information which he sought would in any way be exculpatory or material. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Even if appellant had evidence that rapes similar to the one for which he was on trial had been committed after he was in custody, this is not inconsistent with his guilt of the offense, in light of the prosecutrix’s positive identification of him as her assailant and other circumstantial evidence of his guilt. See Florio v. State, 532 S.W.2d 614 (Tex.Cr.App.1976); Ferrel v. State, 429 S.W.2d 901 (Tex.Cr.App.1968); Loy v. State, 502 S.W.2d 123 (Tex.Cr.App.1973). Thus, appellant has shown no error and this contention is overruled.

In his seventh and final ground of error, appellant contends that the trial court erred in refusing to grant a mistrial because of an improper question by the prosecutor which implied an extraneous offense. During the State’s examination of Officer Bullard, the following transpired:

“[Prosecutor] Q: Detective Bullard, in the last few months, before this arrest, you had been working in a specific area; is that correct?
“[Witness] A: Correct, sir.
“[Prosecutor] Q: Now, was [appellant’s] arrest the result of an accident or a mistake, or a guess, or the result of intense police work?
“[Defense attorney]: Judge, I object to that. It is implying extraneous offenses.”

The objection was sustained, the question was not answered, and the trial court instructed the jury to disregard the question. However, appellant’s motion for a mistrial was denied.

Generally, the mere asking of an improper question will not call for reversal unless it results in obvious harm to the appellant, Walker v. State, 555 S.W.2d 454 (Tex.Cr.App.1977); Graham v. State, 546 S.W.2d 605 (Tex.Cr.App.1977). We note that the matter was not pursued by the prosecutor. This fact situation does not present us with one of those extreme cases where it appears that the complained-of question was clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Walker v. State, supra; Sheppard v. State, 545 S.W.2d 816 (Tex.Cr.App.1977). The trial judge’s prompt instruction to disregard was sufficient to cure error in asking the question. This ground of error is overruled.

The judgment is affirmed.

      . The arresting officer testified at trial regarding his probable cause to arrest appellant.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We note that all of appellant’s testimony that the lineup was suggestive was contradicted by the prosecutrix.


author: TOM G. DAVIS, Judge.

text:
    Henry HINES, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 56554.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 27, 1978.
    State’s Motion for Rehearing En Banc Denied Oct. 18, 1978.

      Sexton & Sexton, Orange, for appellant.
    Jim Sharon Bearden, County Atty., James 0. Jenkins, Jr., Asst. County Atty., Orange, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for delivery of heroin. Punishment was assessed by the jury at 25 years.

The record reflects that appellant was convicted for delivery of heroin to Joseph W. Payne on or about September 26, 1974. Payne, an investigator with the Calcasieu, Louisiana, Parish Sheriff’s Office, testified that on the date in question he and his supervisor, Jack Hebert, were working in cooperation with the Orange County Sheriff’s Office on narcotics investigations. On September 26, 1974, Payne, working as an undercover agent, drove to a location on Jack Island Road to check on drug activity at that location. Payne was driving and Hebert was riding in the trunk of the car. Upon arrival at the location on Jack Island Road, Payne met two brothers by the name of Dotson, who he testified were known drug users. Payne testified that shortly after his arrival the appellant drove up in a gray Pontiac GTO. Appellant asked if Payne were “looking for some stuff.” Payne replied that he was. The appellant replied that he knew where some was, and told the group to follow him. Appellant got in the car with the Dotsons, and Payne followed in his car. Payne testified that he followed the appellant to 2907 Sixteenth Street in Orange. Upon arrival at that address, the appellant entered the house while the others waited outside. Appellant came back out of the house and asked Payne what he wanted. Payne made an agreement to buy two “papers” of heroin for $20.00. Appellant re-entered the house, and when he came out handed Payne the two “papers.” Payne gave him $20.00 as payment.

Captain John E. Wade of the Orange County Sheriff’s Department testified that he and another officer were in another car following that driven by Payne. Wade saw what transpired on Jack Island Road from a distance using binoculars. He testified that when Payne arrived he spoke to some people who were already at the residence. In a few minutes, a GTO drove up. Wade identified appellant as the driver of the car. After a brief conversation, the parties got back in two of the cars and proceeded to 2907 Sixteenth Street. Through binoculars, Wade observed an exchange of some type take place after appellant had emerged from inside the house. From the distance, Wade could not identify what was exchanged.

The defense produced two witnesses who said that appellant had never owned or driven any GTO-type automobile. Appellant also offered the testimony of Mrs. Ade-tha Daugherty, who lived at 2907 Sixteenth Street, where the sale allegedly took place. Mrs. Daugherty testified that she was 67 years old and had lived in the house since 1954. Mrs. Daugherty testified that she did not know the appellant and that as far as she knew he was never in or around her house in September, 1974, or any other time.

Appellant testified in his own behalf. He denied he had ever been at the house in question or that he ever sold Payne any drugs.

Appellant complains of certain questions asked of him during cross-examination by the State. Specifically, he is complaining that the trial court erred in allowing the State to bring out extraneous offenses during the cross-examination.

The record reflects that on cross-examination the appellant admitted he had used heroin on three occasions subsequent to the offense. All three of the occasions were during the Christmas holidays in 1974, about three months after the delivery alleged in the instant case. Appellant testified that a friend had prepared and injected the heroin for him.

The State first argues that the appellant’s objections at trial were not sufficient to preserve the error for review by this Court. Among the objections made during the questioning were the following: 1. “I am going to object on the basis that this has nothing to do with this trial”; 2. “He is on trial here for what he is charged in the indictment for . . 3. “I am going to object to that ... on the basis that that is another charge — they are trying to try him for something here that he is not charged with.”

In Walls v. State, Tex.Cr.App., 548 S.W.2d 38, the defendant objected to the admission of an extraneous offense by saying, “This has nothing to do with the case in question.” This Court held:

“The objections . . . were not as specific as they should have been . .; nevertheless, we think that from the beginning the objections were sufficient to apprise the court that appellant was objecting to the admission of the evidence of an extraneous offense whose materiality was not established.”

The objections in the instant case were at least as specific as those in Walls. We hold that the objections were sufficient to apprise the trial court that appellant was objecting on the grounds of extraneous offense. The alleged error was properly preserved.

It is well established that an accused may not be tried for some collateral crime or for being a criminal generally. Cameron v. State, Tex.Cr.App., 530 S.W.2d 841; Halliburton v. State, 528 S.W.2d 216; Alvarez v. State, Tex.Cr.App., 511 S.W.2d 493.

There are exceptions to this general prohibition against the use of extraneous offenses. In Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97, this Court said:

“Evidence of extraneous offenses committed by the accused has been held admissible: (1) To show the context in which the criminal act occurred — what has been termed the ‘res gestae’ — under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence. (2) To circumstantially prove identity where the state lacks direct evidence on this issue. (3) To prove scienter, where intent or guilty knowledge is an essential element of the state’s case and cannot be inferred from the act itself. (4) To prove malice or state of mind, when malice is an essential element of the state’s case and cannot be inferred from the criminal act. (5) To show the accused’s motive, particularly where the commission of the offense at bar is either conditioned upon the commission of the extraneous offense or is a part of a continuing plan or scheme of which the crime on trial is also a part. (6) To refute a defensive theory raised by the accused.” [Footnotes omitted.]

In the instant case when the appellant testified that he was not at the scene and denied making the sale of drugs to Payne, he raised the defensive theory of alibi. Cobb v. State, Tex.Cr.App., 503 S.W.2d 249; Mitchell v. State, Tex.Cr.App., 503 S.W.2d 562; Vaughn v. State, Tex.Civ.App., 530 S.W.2d 558. When the appellant raised the defensive theory of alibi, he placed his identity in issue. Mitchell v. State, supra.

Although the testimony of the appellant clearly raised a defensive theory of alibi, in order to prove an extraneous offense the State must also prove sufficient common distinguishing characteristics between the extraneous offense and the primary offense to enable its probative value to outweigh its prejudicial effect. Albrecht v. State, supra; Cobb v. State, supra. The fact that appellant used heroin three months after he is alleged to have delivered it to Payne adds little, if anything, in the way of probative evidence to rebut his defensive theory of alibi.

In Okra v. State, Tex.Cr.App., 507 S.W.2d 220, a case very similar to the instant case, the defendant was charged with sale of heroin. The defendant offered evidence to show that he was in jail on the dates when the sales were alleged to have occurred, thus putting forth the issue of identity. In rebuttal, the State proved that a month before the offense the defendant was found in possession of “heroin, narcotics paraphernalia and a number of firearms.” This Court found that the extraneous offenses were inadmissible. See Logan v. State, Tex.Cr.App., 510 S.W.2d 598.

In the instant case, we find that although the defensive theory of alibi was raised the evidence of the use of heroin three months after the alleged offense was so lacking in probative value that the evidence should have been excluded. Under the facts of this case, the error was clearly harmful.

The judgment is reversed and the cause remanded.

      . We are not persuaded by the State’s argument that the evidence of appellant’s use of heroin during the Christmas holidays of 1974 was admissible in light of a second count in the indictment charging appellant with possession of heroin on the same date (“on or about the 26th day of September, A.D. 1974”) alleged for the delivery. Cf. Williams v. State, Tex.Cr.App., 565 S.W.2d 63.


author: PHILLIPS, Judge. VOLLERS, Judge,

text:
    Michael Wayne LANGFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 56977.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 27, 1978.
    M. Bruce Fort, Texas City, for appellant.
    James F. Hury, Jr., Dist. Atty., Michael P. Heiskell, Asst. Dist. Atty., Galveston, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from an order revoking probation. On November 24, 1975, the appellant was convicted of the offense of burglary of a building upon his plea of guilty. V.T.C.A., Penal Code, § 30.02(a)(3). Punishment was assessed at five years, probated.

On May 10, 1976, the State filed its motion to revoke probation alleging that appellant:

“. . . on or about the 19th day of January, 1976, in Brazoria County, Texas, did then and there intentionally and knowingly without the effective consent of Eddie Forbes, enter a building owned by the said Eddie Forbes and did then and there commit theft, to-wit: did then and there unlawfully appropriate property from Eddie Forbes, the owner thereof without the effective consent of the said Eddie Forbes, and with intent to deprive said owner of said property.”

On February 25, 1977, a hearing was conducted on the State’s motion to revoke, and the trial court revoked appellant’s probation. Appellant alleges in his one ground of error that the trial court abused its discretion in revoking probation when the evidence established that the appellant was induced to commit the crime by a law enforcement officer.

The evidence adduced at the revocation hearing reveals that on January 19, 1976, between 9:00 and 9:30 p. m., a drug store was burglarized in Angleton. Officer Larry Hatthorn testified that he was dispatched to the Mediciman drug store in response to a burglar alarm. Upon his arrival, a vehicle left the drug store parking lot. Officer Hatthorn stopped the vehicle and placed two suspects, later identified as Debbie Kelsey and Larry Graugnard, under arrest. After investigation, a warrant was issued for the arrest of the appellant and Joseph Kelsey. After the appellant was arrested, Officer Hatthorn transferred the appellant from the Texas City Police Department to Angleton. Hatthorn then stated he took appellant before a magistrate who read appellant his rights. Later, appellant was taken to Hatthorn’s office and, after again being advised of his rights, gave a confession to the burglary. At that time, appellant did not make reference to an Officer Fleming or request to call any police officer. On cross-examination, Hatthorn admitted that another officer could have taken appellant to the magistrate and his previous testimony on that point could be in error.

Detective Frank Fleming of the Texas City Police Department testified for the defense that appellant had worked for him in an undercover capacity. After appellant had been convicted of the burglary charge, and prior to the court’s grant of probation, the appellant had been approached by and later agreed to work with Officer Fleming. Fleming told appellant that he wanted appellant to get close to several people suspected in a series of burglaries, including Charlie Delgado, Joseph Kelsey, and Larry Graugnard. Fleming had instructed appellant to work with these people but he wanted to be contacted about the time and place of the burglaries before they occurred. As a result of this arrangement, appellant provided Fleming with information on several occasions, not only in Galveston County.

When Fleming executed the arrest warrant for appellant in January of 1976, the appellant had told Fleming that he had been unable to reach a phone prior to the burglary. Fleming stated that it was highly possible that a person acting in an undercover capacity could be in such a situation. In commenting on the importance of this telephone call, Fleming testified:

“Q. And the big foul-up on this thing was that there was no phone call to you?
A. Yes, sir.
Q. Had there been a phone call to you, then he wouldn’t be in trouble today?
A. No, sir, he sure wouldn’t.
******
Q. As far as you know, Mr. Langford could have been a person who was trying to do what you told him to do and just got in a situation that he couldn’t get out of?
A. Would you repeat that question?
Q. Well, let me rephrase it and you answer the question for me: If he had got in touch with you by phone, then there would have been no problems afterwards and you could have bailed him out?
A. No, sir.
Q. Sir?
A. There wouldn’t have been any problems, sir.”

On cross-examination, the State sought to show that appellant may have taken advantage of the relationship in order to commit a crime.

Appellant testified in his own behalf that he had been asked by Fleming to work undercover in order to gain information on Charlie Delgado, Joseph Kelsey, and others. Appellant was instructed to find out when, where, and what time the others would commit a burglary and call Fleming to give him that information. Appellant was then to accompany the others to the place to be burglarized. On January 19, the day of the present burglary, appellant called Officer Fleming who instructed appellant to obtain information on a burglary which had occurred the previous Sunday. In response to this request, appellant went to the home of Joseph Kelsey, where they were later joined by Charlie Delgado. Kelsey and Delgado were suspicious that appellant was working with the police. Upon their suggestion, appellant took a narcotic drug in order to prove he had no connection with the authorities. They next decided to burglarize the drug store and appellant had no opportunity to contact Officer Fleming prior to the actual burglary. He did contact Fleming January 21, after having made his way back to Texas City.

Appellant now contends that the evidence showed entrapment by the State as a matter of law and, on that basis, the revocation order cannot stand.

There are two general tests for entrapment recognized throughout the United States: one “subjective” and the other “objective.” Under the generally accepted “subjective” test, the Court will make two inquiries: first, whether there was inducement on the part of the State and, second, whether the defendant showed any predisposition to commit the offense. Under the “objective” test, which has been adopted by a small but growing minority of states, the Court considers only the nature of the police activity involved without regard to the criminal tendencies of the defendant.

In this State, the defense of entrapment was first recognized in 1956 in the case of Cooper v. State, 162 Tex.Cr.R. 624, 288 S.W.2d 762. In Cooper, this Court adopted what is now known as the “subjective” test and stated the rule as follows:

“It is the general rule that where the criminal intent originates in the mind of the accused the fact that the officers furnish the opportunity for or to aid the accused in the commission of a crime constitutes no defense to such a prosecution. However, if the design originates in the mind of the officer and he induces a person to commit a crime which he would not otherwise have committed except for such inducement, this is entrapment, and in law may constitute a defense to such crime.” (citations omitted)

This subjective test has been consistently followed up until the enactment of our present statute, V.T.C.A., Penal Code, § 8.06. See Redman v. State, Tex.Cr.App., 533 S.W.2d 29; Poe v. State, Tex.Cr.App., 513 S.W.2d 545; Kilburn v. State, Tex.Cr.App., 490 S.W.2d 551; Caudillo v. State, Tex.Cr.App., 462 S.W.2d 576; Gomez v. State, Tex.Cr.App., 461 S.W.2d 422; McKel- va v. State, Tex.Cr.App., 458 S.W.2d 298; Sutton v. State, 170 Tex.Cr.R. 617, 343 S.W.2d 452.

Our present statute has now codified the defense of entrapment under V.T.C.A., Penal Code, § 8.06, which statute provides:

“(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
“(b) In this section ‘law enforcement agent’ includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.”

This section was derived from the New York Statute, McKinney’s Penal Code, § 40.05. As construed by the New York courts, that statute follows the “subjective” test for entrapment. As noted in People v. Isaacson, 56 A.D.2d 220, 392 N.Y.S.2d 157 (1977):

“Thus evidence of other criminal acts of a defendant may be introduced on the People’s case-in-chief in order to refute the defense of entrapment Such conduct shows that the defendant was ‘otherwise disposed to commit [the offense].’ (Penal Law § 40.05).”

When our statute is compared to the New York provision, it is readily apparent that the drafters of our present penal code intentionally omitted the provision that “the offense would be committed by a person not otherwise disposed to commit it.” Since this provision is the one upon which the “subjective” test is founded, it can only be concluded that the legislative intent was to adopt the “objective” test for entrapment. This same conclusion is reached in the practice commentary to Section 8.06:

“If the causation or inducement element is decided in defendant’s favor, Subsection (a) focuses on the nature of the inducement methods. This second standard changes the focus of the entrapment defense, as previously recognized, which looked at the defendant’s criminal proclivities. The defendant’s predisposition to commit the crime and, for purposes of the entrapment defense, his prior criminal record are immaterial. Rather, Section 8.06 focuses on whether, objectively considered, the inducement methods used are likely to induce one with innocent intentions to commit the crime. If the inducement attains that intensity, a determination of whether the defendant would have committed the crime with less or no encouragement ordinarily involves unsatisfactory and highly prejudicial (to the defendant) evidence, and thus has been rejected as an element of entrapment by this section.”

The reasoning behind this “objective” test for entrapment is further described by Justice Stewart in his dissenting opinion in United States v. Russell, 411 U.S. 423, 441, 93 S.Ct. 1637, 1647, 36 L.Ed.2d 366 (1973):

“Thus, the focus of this [objective] approach is not on the propensities and predisposition of a specific defendant, but on ‘whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.’
“In my view, this objective approach to entrapment advanced by the Roberts opinion in Sorrells and the Frankfurter opinion in Sherman is the only one truly consistent with the underlying rationale of the defense. Indeed, the very basis of the entrapment defense itself demands adherence to an approach that focuses on the conduct of the governmental agents, rather than on whether the defendant was ‘predisposed’ or ‘otherwise innocent.’
“Furthermore, to say that such a defendant is ‘otherwise innocent’ or not ‘predisposed’ to commit the crime is misleading, at best. The very fact that he has committed an act that Congress has determined to be illegal demonstrates conclusively that he is not innocent of the offense. He may not have originated the precise plan or the precise details, but he was ‘predisposed’ in the sense that he has proved to be quite capable of committing the crime. That he was induced, provoked, or tempted to do so by government agents does not make him any more innocent or any less predisposed than he would be if he had been induced, provoked, or tempted by a private person— which, of course, would not entitle him to cry ‘entrapment.’ Since the only difference between these situations is the identity of the temptor, it follows that the significant focus must be on the conduct of the government agents, and not on the predisposition of the defendant.
“The purpose of the entrapment defense, then, cannot be to protect persons who are ‘otherwise innocent.’ Rather, it must be to prohibit unlawful governmental activity in instigating crime.”

We therefore hold that our present statute provides for the “objective” test for entrapment. Having once determined that there was an inducement, the trial court need now consider only the nature of the police activity involved, without reference to the predisposition of the particular defendant. See 62 A.L.R.3d 110.

In applying this objective test to the facts of this case, it is apparent that there was an inducement on the part of the State. The evidence is uncontroverted that the appellant stood convicted of the offense of burglary and he was given probation only after he agreed to work with Officer Fleming. Concerning the details of the agreement, Fleming testified:

“Q. Okay, and you instructed him that you wanted him to get in with them and let you know when the burglary was coming down and in some way let you know where it was going to be and that you would bail him out of that; isn’t that true?
A. Yes, sir.
Q. And, if he’d get picked up with the other folks, that you’d get him and pull him aside, then that way you would catch them in the burglary.
A. Yes sir.
Q. And he also provided you with some information about some other folks, didn’t he?
A. Yes, sir.
Q. Like Kenny Gates, for example?
A. Yes, sir.
Q. He provided you with information concerning Kenny Gates which resulted in him being arrested?
A. Yes, sir.
Q. And how was he to contact you, detective?
A. By phone.
Q. And you were not always at home or at the station all the time, were you?
A. No, sir.
Q. So there could be sometimes a problem getting in touch with you?
A. Yes, sir.
Q. Did he actually contact you prior to some of these burglaries like he was suppose to and make arrangements for you to catch these people?
A. Yes, sir, he did.
******
Q. Now, have you ever done undercover work yourself?
A. Yes.
Q. You are acquainted with the fact that sometimes when you get in you can’t always get away and get to a phone, can you?
A. Yes, sir.
Q. You get locked into situations, sometimes, can’t you?
A. I never have been, sir.
Q. O.K., but it’s highly possible; isn’t it?
A. Yes, sir.
Q. Especially if somebody might be suspicious that you were an officer.
A. Sir, you are always running a risk of that.”

This uncontradicted testimony, corroborated by the appellant, reveals that it was the agreement and action of Officer Fleming which placed appellant in the position of informer and required appellant to participate in the burglaries. Further, the uncon-tradicted evidence showed that, on the day of the present burglary, appellant had been instructed by Fleming to seek out Kelsey and Delgado in order to obtain certain information. When appellant did as he was instructed by Fleming, he was placed in a situation where he could not gain access to a telephone. Fleming was well aware that such situation could occur.

While it is proper that law enforcement officers should diligently seek to ferret out crimes and violations of the law, the State cannot solicit and then encourage an individual to commit a crime and later seek to punish that individual for that offense. This does not imply that police informers will have free rein to commit crimes while working for the police. An informer will not have a license to commit a crime or work with known criminals other than those he is investigating pursuant to direct instructions from the police. Consequently, an entrapment issue will be determined on a case by case basis depending upon the particular facts in each case.

In the instant case, appellant was in the company of those individuals he had been investigating and had been instructed to gain information on the same day the burglary was committed. He was then placed in a situation the police anticipated and was unable to reach a telephone. On the facts of this case, the State could not induce appellant to commit the burglary and then seek to revoke his probation with the offense. Having failed to rebut or contradict the defensive evidence of entrapment, we hold the facts of this case establish a prima facie case of entrapment.

The order revoking probation is reversed.

ROBERTS, J., concurs in results.

VOLLERS, Judge,

dissenting.

The majority in this cause is holding that the appellant has established entrapment as a matter of law. With this conclusion I cannot agree.

First of all V.T.C.A. Penal Code, Section 8.06 provides:

“(a) It is a defense to prosecution that the actor engaged in conduct charged because he was induced to do so by law enforcement agent using persuasion or other means likely to cause persons to commit the offense.” (Emphasis added.)

The testimony in this cause shows that Detective Fleming testified that appellant worked for him in an undercover capacity both before and after he was placed on probation. Fleming stated that in the early part of 1975 he initiated conversations with appellant regarding his interest in appellant’s “getting in” with three suspected burglars and supplying him with information for burglary investigations. The persons arrested along with appellant for the burglary in question were in fact the same persons Fleming had been interested in investigating. However, Fleming instructed appellant to report anything to him, but to contact him by phone before he participated in any activities with the suspects so that Fleming could “catch them” in the burglary, but “bail appellant out.”

When appellant was arrested on the charge of committing the burglary in question Fleming executed the warrant for appellant’s arrest. He testified that at first appellant did not mention the burglary in Brazoria County but then did relate to him the fact that he had been with the suspects Fleming was investigating in Galveston County and had been unable to get to a telephone to call Fleming before the burglary. At that point Fleming told him that there wasn’t anything that he could do and that he should have dropped the whole thing right there and then. Fleming further testified that he did not suggest to appellant that he go to another county to commit a burglary to catch these other people.

Officer Hatthorn testified that he transferred appellant to the Brazoria County Courthouse where he took appellant before a magistrate for the purpose of having his rights explained to him. Thereafter he took appellant to his office, also in the Brazoria County Courthouse, advised appellant of his rights again and took a statement which was reduced to writing and constituted a confession to the burglary. In taking this confession appellant did not tell him anything about Sgt. Fleming of the Texas City Police Department and did not make a request to call Sgt. Fleming.

From this testimony it appears that the determination of this issue rests solely upon the appellant’s testimony that in following Sgt. Fleming’s instructions he found himself in a position where he could not call Sgt. Fleming and he could not back out of the plans to burglarize the drugstore in question. Therefore, the determination of whether or not the defense of entrapment was established rests solely upon the appellant’s testimony. I am compelled to disagree with the majority conclusion that the trial judge was bound to believe the testimony of the appellant. This is especially true in light of the fact that after appellant escaped from the scene of the burglary he did not call the officer who supposedly entrapped him nor did he mention it to this officer when that officer executed the warrant of arrest. Furthermore there was no mention of this “entrapment” when he gave a written confession to the commission of the crime.

The trial judge must be satisfied by a preponderance of the evidence that the appellant violated the terms and conditions of his probation. Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1975). It was the trial judge, and not the members of this Court, who heard the witnesses testify and saw their expressions and conduct while appearing as live witnesses. I am simply not ready to declare that the trial judge had no discretion in whether or not to believe the testimony of a witness that appears before him, whether it be a person who is charged with the commission of a crime or any other witness.

I dissent.

      . See State v. Mullen, 216 N.W.2d 375 (Iowa Sup.Ct. (1974); People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973); State v. Sainz, 84 N.M. 259, 501 P.2d 1247 (1972); Grossman v. State, 457 P.2d 226 (Alaska Sup.Ct.1969); People v. Benford, 53 Cal.2d 1, 345 P.2d 928 (1959).
      For discussions of the “objective” test in the federal area, see Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932) (concurring opinion Justice Roberts); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958) (concurring opinion Justice Frankfurter); Greene v. United States, 454 F.2d 783 (9th Cir. 1971); Williamson v. United States, 311 F.2d 441 (5th Cir. 1962) aff. per curiam 340 F.2d 612 (5th Cir.) cert. denied 381 U.S. 950, 85 S.Ct. 1803, 14 L.Ed.2d 724 (1965).

      . McKinney’s Penal Code, § 40.05, provides:
      “In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant, or by a person acting in cooperation with a public servant, seeking to obtain evidence against him for a criminal prosecution, and when the methods used to obtain such evidence were such as to create a substantial risk that the offense would be committed by a person not otherwise disposed to commit it. Inducement or encouragement to commit an offense means active inducement or encouragement. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”

      . See also People v. Joyce, 47 A.D.2d 562, 363 N.Y.S.2d 634 (1975).

      . It is noted that the American Law Institute Model Penal Code, 1962 Proposed Official Draft, Art. 2, § 2.13, adopted the “objective” test for entrapment. In considering this issue, Tentative Draft 9, Art. 2, § 2.10, proposed the “subjective” test. The commentary to that section stated:
      “The entrapment issue sharply divided the Council in much the same way as the issue had divided the Supreme Court in Sorrells and Sherman. On balance, a majority of the Council favored the main formulation which embraces the existing law and takes into account the prior record and conduct of the defendant. In the judgment of the majority the greatest vice inheres in that police behavior which leads the previously innocent to crime. They were, therefore, of the view that the defense should be limited to such situations. Predisposed defendants are largely the professionals, who constitute the greatest crime problem. Freeing him in order to discipline the police was thought too great a price. When officers deal with the criminally disposed, they may find it necessary to employ methods which would be quite out of place if directed to the ‘innocent.’
      “The Reporter and the Special Consultant prefer the alternative [objective] formulation, which also reflects the preference of a majority of the Advisory Committee.
      “If the defense is available only to persons who are ‘innocent,’ the full deterrent effect of the defense is undermined. Police conduct toward a particular defendant may be seriously objectionable even though he entertained a purpose to commit crime prior to any inducement by officials. Law enforcement officers may feel free to employ forbidden methods if the ‘innocent’ are freed but the habitual offenders, in whom the police have the greater interest, will nevertheless be punished.
      “Investigation into the character and disposition of the defendant has often obscured the important task of judging the quality of police behavior. The emphasis of courtroom inquiry is thus turned from the character of police conduct to the history of the accused and his immediate reaction to enticement.
      “The very notion that certain police conduct may be improper in relation to the ‘innocent’ but acceptable when addressed to the ‘guilty’ seems incompatible with the ideal of equality before the law. As Mr. Justice Frankfurter put it in his concurring opinion in the Sherman case: ‘Permissible police activity does not vary according to the particular defendant concerned; surely if two suspects have been solicited at the same time in the same manner, one should not go to jail simply because he has been convicted before and is said to have a criminal disposition.’ 356 U.S. at 383. Further, to permit the use, against a previously convicted person, of police measures not permitted toward the rest of society is to fix a permanent status of criminality against the hopes of enlightened penology.” (footnotes omitted)
      When later presented to the Institute, the ALI preferred the reasoning of the “objective” test and that test now appears in the Model Penal Code.


author: ROBERTS, Judge. VOLLERS, Judge,

text:
    James L. MORGAN, Appellant, v. The STATE of Texas, Appellee.
    No. 54482.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 4, 1978.
    Kent A. Caperton, Bryan, for appellant.
    W. T. McDonald, Jr., Dist. Atty., Bryan, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from an order of the court revoking the appellant’s probation. The trial judge found that the appellant had violated a condition of his probation, and sentenced the appellant to five years in the Texas Department of Corrections.

On October 22, 1975, the appellant pleaded guilty to the offense of felony theft. The appellant was assessed a ten-year probationary term.

At the outset, we recognize fundamental error. Article 40.09(13), Vernon’s Ann.C. C.P. Omitting the formal portions, the indictment to which the appellant pleaded guilty states that the appellant:

. . did then and there unlawfully exercise control over property, other than real property, to wit: One (1) Whirlpool Dishwasher of the value of in excess of $200 knowing said property to be stolen and with intent to deprive the owner, Frank Hurta, of said property . .

In Ex Parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976), we interpreted Section 31.03(a) and (b), and determined that the offense of theft is comprised of four different sets of possible elements:

“(1) a person
“(2) with intent to deprive the owner of property
“(3) obtains the property
“(4) without the owner’s effective consent; or
“(1) a person
“(2) with intent to deprive the owner of property
“(3) obtains the property
“(4) which is stolen property
“(5) from another
“(6) knowing it is stolen; or
“(1) a person
“(2) with intent to deprive the owner of property
“(3) exercises control over the property, other than real property
“(4) without the owner’s effective consent or
“(1) a person
“(2) with intent to deprive the owner of property
“(3) exercises control over the property, other than real property
“(4) which is stolen property
“(5) obtained by another
“(6) knowing it was stolen.”

In Ex Parte Cannon, supra, we also stated that:

“An indictment for theft which does not allege all of the elements of one of these methods is fundamentally defective, since ‘Everything should be stated in an indictment which is necessary to be proved.’ ” (Emphasis in original).

See also Reynolds v. State, 547 S.W.2d 590, 595 (Tex.Cr.App.1977).

The indictment fails to set forth all of the elements of one of the four methods. It does not satisfy the first and third methods because it fails to allege that the obtaining or exercising of control was without the owner’s effective consent. Cf. Reynolds v. State, supra. It also fails to satisfy the second method because instead of alleging that the appellant obtained the property, it alleged that the appellant exercised control over the property.

Moreover, the indictment fails to satisfy the second and fourth methods because it does not state that the property is stolen property or that it was obtained by or from another person.

Thus, it is clear that the indictment is fundamentally defective. See Article 27.08, Vernon’s Ann.C.C.P.; American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). It is well established that where an indictment is fundamentally defective the original conviction based on that indictment will be set aside in an appeal from a probation revocation proceeding. Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).

The judgment is reversed and the prosecution under this indictment is dismissed.

W. C. DAVIS, J., not participating.

VOLLERS, Judge,

dissenting.

The majority concludes that there is fundamental error in the indictment in this cause. I disagree. Section 31.03 V.T.C.A. Penal Code, as it was in effect at the time of the commission of this offense and the plea thereto provided that:

“(a) a person commits an offense if, with intent to deprive the owner of property:
(1) he obtains the property unlawfully; or
(2) he exercises control over the property, other than real property, unlawfully.
(b) Obtaining or exercising control over property is unlawful if:
(1) the actor obtains or exercises control over the property without the owner’s effective consent; or
(2) the property is stolen, the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen.”

From a reading of this statute it is very clear that the elements of the offense are that a person commits an offense if

(1) with the intent to deprive the owner of property
(2) he obtains the property unlawfully, or exercises control over the property, other than real property, unlawfully.

Subparagraph (b) of Section 31.03, supra, merely sets out the conditions under which the obtaining or exercising of control over property is unlawful.

I agree that this Court in Ex Parte Cannon, 546 S.W.2d 266 and in Reynolds v. State, 547 S.W.2d 590 determined that there are four different ways in which Section 31.03, supra, could be violated; I cannot agree that they were rightly decided and that this indictment is fundamentally defective. This is especially true in light of the provisions of Section 31.03, V.T.C.A. Penal Code where the legislature specifically stated that Section 31.03 of the Code was to constitute a single offense superseding all of the various separate offenses previously known as various forms of theft. In spite of that admonition by the legislature this Court concludes that even though there is only one form of theft you must plead it in one of four different ways or the indictment is fundamentally defective.

Where the indictment alleges that a person, with intent to deprive the owner of property, obtained the property unlawfully or exercised control over it unlawfully, it alleged by very definition of the statute itself that the obtaining or exercising of control was without the owner’s effective consent because it was unlawful. The further detailed allegations which this Courts requires, if a defect at all, would be a defect going to notice to the person charged as to the manner in which the offense was committed and would be subject to an exception or motion to quash. See American Plant Food Corporation v. State, 508 S.W.2d 598.

When we declare an indictment to be “fundamentally” defective we should limit such a declaration to fundamental defects and not defects which go to notice. Obviously, the appellant in this case was aware of the charge and was given sufficient notice by this indictment because he plead guilty and never questioned the sufficiency thereof.

I dissent.

DOUGLAS, J., dissents.

      . Section 31.03, V.T.C.A., Penal Code.

      . The trial judge, as mentioned above, reduced the appellant’s term of imprisonment from ten years to five years when he revoked the appellant’s probation. See Art. 42.12, Section 8(a), Vernon’s Ann.C.C.P.

      . In Ex Parte Cannon, supra at 273-4, we stated:
      “Nor did the indictment allege that the property was stolen or that the appellant knew the property was stolen. Moreover, the indictment did not allege either that the appellant obtained the property from another or that he exercised control over the property, other than real property, obtained by another. These are essential elements of theft under subsection (b)(2), see Pool v. State, 528 S.W.2d 255 (Tex.Cr.App.1975), and are required to be alleged in an indictment alleging either of the methods of committing theft under this subsection.”
      Thus, although the indictment in the present case does allege that the appellant knew the property was stolen, it fails to allege from whom the appellant obtained the property and that it was stolen property. Thus, even if we were willing to hold that an allegation of knowledge of the stolen property also satisfies the requirement of an allegation that the property was stolen, the indictment fails to allege that the appellant obtained it from another person.


author: RAY, Justice.

text:
    Mrs. F. Hastings PANNILL, Appellant, v. GOVERNING BOARD, the DAR House, the Freeman Plantation, the Texas Society Daughters of the American Revolution, et al., Appellees.
    No. 8328.
    Court of Civil Appeals of Texas, Texarkana.
    May 4, 1976.
    C. Leland Hamel, Houston, Fred Eris-man, Longview, for appellant.
    Joe Lovelace, Linden, Traylor Russell, Mount Pleasant, J. R. Cornelius, Jefferson, for appellees.
   RAY, Justice.

This is a venue case. Appellees (plaintiffs), The Governing Board, The Texas Society, Daughters of The American Revolution, Inc., acting through its elected board members, brought suit against appellant (defendant), Mrs. F. Hastings Pannill, State Regent, The Texas Society, Daughters of the American Revolution, Inc.; The Texas Society, Daughters of the American Revolution, Inc., Mrs. Jesse M. DeWare III, Jesse M. DeWare IV and Diane Ellen DeWare, seeking to have the deed to the Freeman Plantation cancelled and set aside. Mrs. Pannill had executed a deed in her capacity as State Regent, conveying the Freeman Plantation in Marion County, Texas, to the DeWares. Appellant Pannill filed her plea of privilege to be sued in the county of her residence, Midland County. The trial court considered the plea of privilege and held that Marion County was the proper place of venue in this case as it relates to Mrs. Pannill individually. The judgment of the trial court is reversed and the case as it relates to Mrs. Pannill individually is ordered transferred to Midland County, Texas.

An examination of plaintiff’s third amended original petition does not make it clear that Mrs. F. Hastings Pannill has been sued individually, but on the contrary, it appears that she has been sued only in her capacity as the State Regent. Appellees’ pleadings state, “Plaintiffs would show that on April 26, 1975, the Texas Society acting by and through Mary G. Pannill, who is one and the same as Mrs. F. Hastings Pannill, State Regent, executed and delivered to the Defendants . . .,” the DeWares, for a recited consideration, and whatever the document was that was executed and delivered was not named. However, the petition recites that whatever was done was done by Mrs. Pannill in her capacity as State Regent of The Texas Society. Other references in the petition are to things done by Mrs. Pannill as State Regent. Because the parties have treated the petition as though it made Mrs. Pannill individually a party defendant, we will likewise so treat her. However, an examination of the pleadings does not reveal that any cause of action was alleged against Mrs. Pannill individually nor was there any relief sought against her individually. The thrust of the petition is for the cancellation of the deed and that title and possession of the premises be restored to and invested in The Texas Society, Daughters Of The American Revolution, Inc. Mrs. Pannill does not present a point of error complaining of the trial court’s failure to dismiss her as a party defendant. All of appellant’s points of error are related to the overruling of the plea of privilege.

Appellees state that Mrs. Pannill “. . . was made and is a necessary party as such to this litigation in her capacity as State Regent, not as an individual.” Mrs. Pannill has disclaimed any ownership in any of the property involved in this suit. The evidence establishes that she did not own any interest in the property at the time the conveyance was made nor did she own or claim any interest in the property when the plea of privilege was heard.

Appellant’s second point of error asserts that appellees failed to establish any cause of action against appellant for the recovery of land or for damages to land under Subdivision 14 of Article 1995, V.A.T.S. and therefore the trial court erred in overruling appellant’s plea of privilege. We agree. Stewart v. Whitworth, 453 S.W.2d 875 (Tex.Civ.App. Houston 1st Dist. 1970, writ dism’d). The proof at the hearing failed to establish that Mrs. Pannill was asserting title to the real property or that she had damaged the real property in her individual capacity.

Appellant’s point of error No. 2 is sustained.

Appellant’s point of error No. 3 is sustained. There was no proof that Mrs. Pan-nill was claiming or had claimed any personal interest in any of the personal property involved in this lawsuit.

Point of error No. 4 relates to Subdivision 23, of Article 1995. Subdivision 23 establishes venue rules for corporations and is not applicable to Mrs. Pannill individually. Point of error No. 4 is sustained. Point of error No. 5 relates to Subdivision 29a of Article 1995, V.A.T.S. and such subdivision is not applicable in this case because some of the defendants reside in Marion County. Subdivision 29a is applicable only in those cases in which it is established that all of the defendants reside out of the county of suit. Houseman v. Mahin, 390 S.W.2d 732 (Tex. 1965). Appellant’s fifth point of error is sustained.

Point of error No. 6 relates to Subdivision 4 of Article 1995, V.A.T.S. In order to have maintained venue under this subdivision it was incumbent upon appellees to establish a joint cause of action against the resident and nonresident defendants, or a cause of action against the resident defendants so intimately connected with the cause of action against the nonresident defendant that the two might be joined together in order to avoid a multiplicity of suits. No cause of action was alleged against Mrs. Pannill individually, nor was one proved. Neither was a cause of action alleged against a resident defendant so intimately connected with Mrs. Pannill as to require her joinder to avoid a multiplicity of suits. The proof does not establish a prima facie case in this regard. The admission by appellees in their brief that she is not a necessary party in her individual capacity authorizes us to sustain appellant’s points of error 6 and 7 and additionally point of error No. 1.

The citations have not been included in the transcript of this case so we are unable to determine in what capacity Mrs. Pannill was served, that is, whether she was served in her capacity as State Regent or in her capacity as an individual, or in both capacities. As to appellant, Mrs. F. Hastings Pannill, individually, the judgment of the trial court overruling her plea of privilege is reversed and judgment is here rendered that the case, as it relates to Mrs. Pannill individually, be transferred to Midland County, Texas.

CORNELIUS, C. J., not participating.