author: ONION, Presiding Judge.

text:
    Ex parte Edward Otho HAGANS.
    No. 55504.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1977.
    State’s Motion for Rehearing Denied Dec. 14, 1977.

      Edith L. James, Dallas, for appellant. Max P. Flusche, Jr., Asst. Atty. Gen., Austin, Jim D. Yollers, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P., in which appellant seeks to set aside his 1961 murder conviction in which he was originally assessed the death penalty. His conviction was affirmed in Hagans v. State, 372 S.W.2d 946 (Tex.Cr.App.1963).

It is petitioner’s contention that he was denied due process of law in his 1961 trial by the failure to conduct a separate hearing on his competency to stand trial in accordance with the mandate of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), which has been held to be retroactive. See Ex parte Halford, 536 S.W.2d 230 (Tex.Cr.App.1976), and cases there cited.

Following the conclusion of the post-conviction habeas corpus hearing, the court filed findings of fact and conclusions of law denying relief. This court is, of course, not bound by such findings of fact and conclusions of law. Ex parte Bazemore, 430 S.W.2d 205 (Tex.Cr.App.1968); Ex parte Williams, 486 S.W.2d 566 (Tex.Cr.App. 1972); Ex parte Swinney, 499 S.W.2d 101 (Tex.Cr.App.1973); Ex parte Bagley, 509 S.W.2d 332 (Tex.Cr.App.1974); Ex parte Lemay, 525 S.W.2d 1 (Tex.Cr.App.1975); Ex parte Davila, 530 S.W.2d 543 (Tex.Cr. App.1975); Ex parte Garcia, 548 S.W.2d 405 (Tex.Cr.App.1977).

At the habeas corpus hearing, the attorney for petitioner at his 1961 trial testified that he was not a doctor and could not truthfully say whether petitioner was competent to stand trial or waive any of his rights in 1961. He related that petitioner had not given him the assistance he needed concerning petitioner’s mental condition. Counsel stated, “[h]e either did not know it or would not give it or was not competent to give it ... I was unable to get anything to help me concerning his mental condition.” He did talk to petitioner at length about the facts of the case, but “I was not satisfied at all with the information that he had given me.” He acknowledged that no request was made for a separate sanity hearing as authorized by Article 932b, Vernon’s Ann.C.C.P., then in effect. He explained the doctors who testified at the trial had agreed to do so without compensation and he didn’t think they would testify twice, and further, he didn’t want to alert the prosecution as to the defense to be offered. Counsel stated he did not discuss strategy about not filing a pre-trial request for a separate sanity hearing with appellant, but did make his mother and sister aware of such strategy.

In addition to the attorney’s testimony, the record of the 1961 trial was introduced into evidence at the habeas corpus proceedings. That record reflects the brutal murder of Mrs. Zoura Hagans, the widow of petitioner’s deceased uncle, and her sister, in Nacogdoches, an eventual flight to California, where the petitioner surrendered to the F.B.I. Upon return to Texas, he made a written confession. The record reflects there was testimony from three psychiatrists and two general practitioners.

The record of the 1961 trial reflects that before the alleged murder Dr. Robert Den-man, a general practitioner, examined the petitioner in June, 1960 at the Little York Hospital in Houston, where it was reported he had a convulsion and complained of stomach pain. It appeared petitioner had been drinking heavily. An X-ray showed a thickening in the frontal area of appellant’s skull, most likely due to injury and resulting in intracranial pressure. An electroencephalogram test showed his brain waves were abnormal and indicated brain impairment. Dr. Denman advised petitioner’s mother that there was permanent brain damage which was not repairable, coupled with a psychiatric problem which would worsen without treatment. He referred the appellant to Dr. Eugene Tipps, a psychiatrist, since he felt the appellant could become violent or harmful to the family or some other person. Petitioner’s wife, Hazel, who was a nurse’s aide at the hospital, had been seen by Dr. Denman with bruises and had told the doctor that the petitioner had beaten her. When asked if the appellant knew right from wrong, the witness stated, “I would say that he is inconsistent and that sometimes he does and sometimes he doesn’t.” The doctor further related he had seen the appellant on occasions in the hospital when he (the witness) did not think the appellant knew the difference between right and wrong.

Dr. Tipps testified that he examined and treated the petitioner on July 1 and July 18, 1960. He learned that petitioner had convulsions as an infant, apparently due to a birth injury, that he quit school at age nine and had psychiatric evaluation several years later by a Dr. Harris, who told his parents he had brain damage. An electroencephalogram at that time showed abnormal brain wave tracings. He was given anti-convul-sant medication. At age nineteen in 1952, he was in an automobile wreck and was unconscious for eighteen days and later developed blackouts. In 1957, he was in a motorcycle wreck and was unconscious for seven days. His blackouts then became more frequent, occurring two or three times a day, but he had no true epileptic attacks according to Tipps until a few days before his admittance to the hospital in June, 1960. Tipps related the results of the encephalo-gram test ordered by Dr. Denman and knew there was brain damage and intracra-nial pressure, and stated abnormal brain waves are not present unless there is brain impairment or epilepsy. In addition, he related that there was an emotional impairment, a marked loss of emotional control.

Tipjis related petitioner’s condition would not improve with time, and there was no cure for it. He related that in trying to communicate with the petitioner he could not “get through” to him and “it was like a pane of glass between us.” He prescribed librium for the epilepsy, which had a tendency to level out the brain waves. Dr. Tipps also advised petitioner’s mother that the petitioner was dangerous to himself and others and should be in custodial care. He further testified that petitioner did not have the same moral concept as a normal person, and did not have the same interpretation of right and wrong as a normal person.

Dr. Frank Zimmerman, resident psychiatrist of the Titus-Harris Clinic, affiliated with John Sealy Hospital, testified the records at the clinic indicated that brain wave tests conducted there on petitioner in 1948 and 1949 indicated abnormality. The records also showed a standardized IQ test indicated petitioner’s IQ to be 88, in the range of dull normal. His mental age was shown to be eleven years and eight months with twelve years and six months as the maximum mental age he would reach in his lifetime. The records also revealed petitioner was suffering from epilepsy at the time of the tests.

Dr. Tedrow J. Ford, Jr., a first cousin of petitioner, testified that petitioner had an injury at birth and his facial features had been paralyzed since then. He related that in infancy and early childhood petitioner had been taken to various medical centers over the county, and his parents had spent all they could afford for their son.

Dr. James H. Kreimeyer, Clinical Director at Rusk State Hospital, called by the State, testified as to the results of the standardized intelligence test previously mentioned which had been administered to petitioner. He said results indicated petitioner was a dull normal and such score as made could be considered as reflecting a mild or questionable mental defectiveness. He testified that psychomotor epilepsy patients usually are not able to remember what occurred during the time they have seizures as they have amnesia for that perjod of time.

This was the medical testimony offered at the 1961 trial.

In the court’s charge it submitted to the jury the issues of insanity at the time of the commission and insanity at the time of the trial (competency). The jury found the petitioner was sane at both times.

The record before us reflects that in 1964 appellant was found to be then insane by another jury on much the same evidence as offered at his 1961 trial plus evidence of deterioration since his confinement in the Department of Corrections. He was committed to Rusk State Hospital. Restoration proceedings were had in 1973, and appellant was returned to the Department of Corrections.

In Pate v. Robinson, supra, upon which the appellant relies, the United States Supreme Court made clear “that the conviction of an accused person while he is legally incompetent violates due process . and that state procedures must be adequate to protect this right.” Pate held that the trial court should conduct a competency to stand trial hearing whenever “the evidence raises a ‘bona fide doubt’ as to a defendant’s competence to stand trial. Under the holding of Pate, the lack of a hearing on competency to stand trial once the issue is properly raised affects the fact-finding process. Ex parte Halford, supra.

Therefore, the issue presented is whether there was sufficient evidence before the trial court in 1961 to raise a bona fide doubt as to petitioner’s competence to stand trial.

In Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), the United States Supreme Court identified some of the factors which are relevant to a determination of competency to stand trial:

“The import of our decision in Pate v. Robinson is that evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient. There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated. That they are difficult to evaluate is suggested by the varying opinions trained psychiatrists can entertain on the same facts.”

We observe that at the 1961 trial the trial judge considered the issue of present insanity (competency to stand trial) as raised by the evidence for he charged on said issue. While the standard for submitting a defensive issue to the jury is a lesser standard than that of the “bona fide doubt” requirement of Pate v. Robinson, supra, nevertheless, the fact that the charge was given is a factor to be considered. While the 1961 trial testimony did not focus upon the petitioner’s competency to stand trial, we conclude that there was a “bona fide doubt” about petitioner’s competency to stand trial in 1961. See and cf. Ex parte Halford, supra.

There are other reasons why petitioner is entitled to the relief he seeks. The conviction of an accused while he is legally incompetent to assist in his own defense violates fundamental interests of due process. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956); Bruce v. Estelle, 483 F.2d 1031 (5th Cir. 1973); Martin v. Estelle, 546 F.2d 177 (5th Cir. 1977). And as earlier noted, State procedures must be adequate to protect this right, Pate v. Robinson, supra; Ainsworth v. State, 493 S.W.2d 517 (Tex.Cr.App.1973). “[A]nd the minimum standard allowable, as implicitly dictated by Pate, and as applied by the Texas courts, Townsend v. State, Tex.Cr. App.1968, 427 S.W.2d 55, must include a separate hearing for determination of competency. Texas law adequately attempts to protect this right by providing that, where there is evidence to support a finding of incompetency to stand trial, a jury shall be impaneled, separate from the jury selected to determine guilt or innocence of the defendant, to determine defendant’s competency to stand trial. Tex.Crim.Proc.Code Ann., Art. 46.02, § 4(a). See Cavender v. State, Tex.Cr.App.1974, 515 S.W.2d 277; Townsend v. State, supra; Morales v. State, Tex.Cr .App.1968, 427 S.W.2d 51.” Martin v. Estelle, supra.

The necessity of the separate hearing on the question of competency is so that the determination of an accused’s competency can be made “uncluttered by evidence of the offense itself.” Townsend v. State, 427 S.W.2d 55, 63 (Tex.Cr.App.1968). Such separate uncluttered hearing before a jury makes it easier to determine fairly the issue of competency without introducing facts which might tend to cloud the issue at hand, “facts which alone might well so stir the minds of the jury as to make difficult the exercise of calm judgment upon the question of present [incompetency],” Ramirez v. State, 92 Tex.Cr.R. 38, 241 S.W. 1020, 1021 (1922). See also Lee v. Alabama, 386 F.2d 97 (5th Cir. 1967).

While Article 46.02, Vernon’s Ann.C. C.P., was not in effect in 1961, the decision in Ramirez had been made, and the later decisions in Townsend and Morales are applicable. Due process was violated in the instant case by submitting the issue of competency to the same jury on the trial on the merits. See and cf. Noble v. State, 505 S.W.2d 543 (Tex.Cr.App.1974); Ainsworth v. State, supra; Vardas v. State, 488 S.W.2d 467 (Tex.Cr.App.1973); Hefley v. State, 480 S.W.2d 810 (Tex.Civ.App.1972); Cavender v. State, 515 S.W.2d 277 (Tex.Cr.App.1974), and cases cited.

Still another matter must be observed.

The test of legal competence to stand trial is whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Sandlin v. State, 477 S.W.2d 870 (Tex.Cr.App.1972). See also Paul v. State, 544 S.W.2d 668 (Tex.Cr.App.1976); Bonner v. State, 520 S.W.2d 901 (Tex.Cr.App.1975); Reeves v. State, 516 S.W.2d 410 (Tex.Cr. App.1974); Quintanilla v. State, 508 S.W.2d 647 (Tex.Cr.App.1974); United States v. Makris, 535 F.2d 899 (5th Cir. 1976).

In discussing the Dusky standard, the Fifth Circuit Court of Appeals in Martin v. Estelle, supra, stated:

“. . . This standard differs materially from the criteria by which trial juries are required to determine sanity at the time of a criminal act.
“When a defense of insanity is presented ‘the question is whether the defendant’s mental condition at the time of the criminal act was such that he should not be held responsible for his conduct. The question of competency to stand trial relates rather to the appropriateness of conducting the criminal proceeding in light of the defendant’s present inability to participate effectively . . . One who cannot comprehend the proceedings may not appreciate what information is relevant to the proof of his innocence. Moreover, many of the rights afforded the defendant in a criminal trial, such as the right to consult with counsel, the right to testify in one’s own behalf, and the right to confront opposing witnesses, provide safeguards for the accuracy of the result. To exercise these rights in a meaningful way, the defendant must have some ability to confer intelligently, to testify coherently, and to follow and evaluate the evidence presented.’ Comment, 81 Harv.L.Rev. 454, 457 (1967).”

And in Bruce v. Estelle, 483 F.2d 1031 (5th Cir. 1973), the court wrote:

“. . . It is not necessary for us to reach the question whether the State of Texas should or should not use the M’Naghten rule to determine criminal responsibility at the time of the alleged crime. * * * However, we are firm in the conclusion that the M’Naghten rule cannot be used as a standard to determine competency to stand trial. Again we emphasize that the appropriate standard required by the federal constitution is set forth with simple clarity in Dusky v. United States, supra. * * *
“The Dusky standard emanates from and is given vitality by the due process clause of the fifth amendment. Thus, like many other constitutional protections, the standards utilized for a determination of whether these numerous guarantees have been accorded must be national in application. The standards for judging competency to stand trial fall into the same category as those constitutional principles which govern jury composition, voter participation, freedom of speech and other federally protected rights.
“Here the state record is replete with examples of the use of the M’Naghten standard as a basis for judging Bruce’s competency to stand trial. The M’Naghten rule has no relevance to an intelligent resolution of the competency issue at the time of trial, regardless of the particular standard employed by a state. Whether one knows the difference between ‘right and wrong’ during his trial is unrelated to the crucial factors which compose the Dusky standard.”

In the instant case, although both the issues of insanity at the time of the commission of the offense and insanity at the time of trial (present insanity) (incompetency) were submitted to the jury, only the M’Naghten standard was given to the jury to determine both issues. This was an improper standard with regard to the competency issue.

As to any question of whether the petitioner waived his right to a separate hearing on the issue of competency to stand trial, it must be remembered there can be no waiver because an accused failed to assert his right to such hearing. The United States Supreme Court has held that “it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial.” In Taylor v. United States, 282 F.2d 16, 23 (8th Cir. 1960), the court stated, “[I]f one is mentally incompetent, then by definition, he cannot expect to raise that contention before the trial court and thus cannot be prejudiced by his failure to do so.” Accord: Carroll v. Beto, 421 F.2d 1065, 1067 (5th Cir. 1970). See also Floyd v. United States, 365 F.2d 368, 377 (5th Cir. 1966); Nelms v. United States, 318 F.2d 150, 152-153 (4th Cir. 1963); Smith v. United States, 267 F.2d 210, 212 (9th Cir. 1959).

In summary, we conclude that the evidence was sufficient to conclude that there was raised a bona fide doubt about petitioner’s competency to stand trial, that he was denied due process when the issue of competency was submitted to the trial jury along with all other issues involved in the case, and that an improper standard was used in submitting the issue of competency to the jury.

The relief sought is granted and petitioner is ordered to be released to the sheriff of Nacogdoches County to answer the indictment.

DOUGLAS, J., not participating.

      . His sentence was commuted to life imprisonment following the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

      . While the court in Pate did not reveal the extent of the inquiry necessary to satisfy due process requirements, it would appear at the minimum that a separate hearing for determination of competency is obligatory though not necessarily a preliminary one. While Pate would not require a jury trial on such issue, Texas law in effect at the time of appellant’s trial would. See Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App. 1968).

      . “. . . The defendant has a right to an affirmative instruction on every defensive issue raised by the evidence whether the evidence is produced by the state or by the defense, whether it is strong or feeble, whether it is unimpeached or contradicted, or whether it is conflicting. Where the truth of the testimony is for the jury to determine, a charge on a defensive issue raised by the testimony should be given, even if the trial court is of the opinion that the testimony is not entitled to credence.” 31 Tex.Jur.2d, Instructions, § 110, pp. 660-661.

      . See footnote # 2.

      . The M’Naghten rule is no longer the standard for deciding criminal responsibility in Texas— see V.T.C.A., Penal Code, § 8.01.


source: Caselaw Access Project

author: PHILLIPS, Judge.

license: Public Domain

text:
    Yasmine FATEMI, Appellant, v. The STATE of Texas, Appellee.
    No. 55960.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1977.
    States’s Motion for Rehearing Denied Dec. 14, 1977.

      Bob Kuhn, Austin, for appellant.
    Ronald Earle, Dist. Atty., and Charles E. Hardy, Asst. Dist Atty., Austin, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal from an order revoking conditional discharge under Art. 4476-15, Sec. 4.12, V.T.C.S.

On September 15,1975, appellant pleaded guilty to possession of cocaine and the court ordered she be placed on conditional discharge for a period of two years subject to the condition, inter alia, that she commit no offense against the laws of this or any State or of the United States. On August 2,1976, the State filed a motion to set aside the order of 'conditional discharge for a violation of the conditions of discharge; namely, possession of a controlled substance, methaqualone, on or about June 25, 1976. Following a hearing on the State’s motion on September 9, 1976, the court ordered the conditional discharge be set aside and adjudged appellant guilty of the primary offense, possession of cocaine. Punishment was assessed by the court at two years; however, imposition of sentence was suspended and appellant was placed on probation for a period of two years.

Appellant contends the trial court erred in admitting, over timely objection, evidence obtained as the result of an unlawful traffic stop and detention.

At the hearing on the motion to set aside conditional discharge, Officer Villegas of the Austin Police Department testified he was on duty on June 25, 1975, around 2:15 a.m. when he noticed a 1969 blue Volvo, with the lights on, parked on the shoulder facing southbound in the 600 block of Robert E. Lee. No one was in the vehicle and the engine was not running. Officer Ville-gas stated he turned in a “wanted” check on the automobile to determine if it were stolen. While waiting for the check to be run, Villegas circled the block. Finding the vehicle had been moved, Villegas searched the immediate area and then travelled the main thoroughfares, spotting the automobile turning onto Manchacha Road. Ville-gas testified he “made the traffic stop in the 3400 block of Manchacha Road” and “at this time I wanted to identify the driver.” As Villegas approached the driver’s side, a lady, identified in court as appellant, stepped out of the vehicle and started to meet him half way toward the rear of the automobile. Villegas asked to see her driver’s license and appellant returned to her car and dumped the contents of her purse into the front seat. Villegas saw “a baggie with some type of pills in them”. Over objection, Villegas said he asked appellant what the pills were and she replied, “You can have them”, handing Villegas the baggie containing two white pills, one yellow one and one black pill. From his experience, Villegas determined the white pills were a controlled substance, “possibly Qua-lude”, and appellant was placed under arrest. Witness Owen, a chemist and toxicologist for the City of Austin, testified the two white pills contained methaqualone and the black capsule contained amphetamine.

Officer Villegas’ testimony’ concerning his reasons for stopping appellant’s automobile is as follows:

“A At this time I stopped the vehicle to identify the driver, and I was still waiting for my ‘wanted’ check to come back from the computer.
Q [BY STATE’S ATTORNEY]: You had not yet gotten your ‘wanted’ check back?
A No, sir, I hadn’t gotten it yet.
A All right, sir.
A So I stopped the vehicle.
Q Now, your purpose in stopping the vehicle you say was to identify the driver?
A Yes, sir, and a return on my ‘wanted’ check to see if the vehicle was stolen or not.
Q [BY DEFENSE COUNSEL]: So then after you saw this vehicle who had its parking lights on parked on this roadway, you decided — when you saw that vehicle was gone, you decided you were going to stop that vehicle and make a further investigation?
A Yes, sir.
Q And you say that you stopped it for a traffic stop — I believe that’s the term you used?
A This traffic stop being for identification and the ‘wanted’ check.
Q So you at that time stopped that vehicle to make a driver’s license check to see if that person had a driver’s license?
A And to identify them and the owner of the car.
Q To identify that person and determine whether or not she owned that car?
A Yes, sir.
Q All right. Did you have any information at that time that that vehicle was stolen?
A Not at the time, no, sir.
Q Now, at the time that you pulled over this vehicle, that is at the time that you turned on your lights, which was a signal for her to stop, did you have any information that she had violated the law in any form or manner at that time?
A No, sir, I didn’t.”

Appellant contends the initial detention of her automobile was unauthorized, thus the evidence concerning the pills was inadmissible. The State contends the stop was justified under Art. 6687b, Sec. 13, V.T.C.S., which provides any peace officer may stop and detain any motor vehicle operator for the purpose of determining whether such person has a driver’s license.

The State argues the fact that Officer Villegas’ “interest might have first been triggered by other suspicious circumstances and no way detracts from” the authority granted by Art. 6687b, Sec. 13, supra. The State’s position is “it is only necessary that a purpose in stopping the vehicle was to determine whether the driver had a valid driver’s license”, whereas appellant contends “the driver’s license check must be the operative or dominant purpose behind the officer’s decision to stop the vehicle.”

This Court has upheld temporary detentions authorized by Art. 6687b, Sec. 13, supra, under circumstances which show the check of the driver’s license is the sole purpose for the detention. See Tardiff v. State, Tex.Cr.App., 548 S.W.2d 380 (Department of Public Safety Officers were conducting a routine check of equipment and driver’s licenses and were stopping every car on U.S. Highway 83 two miles north of Childress); Leonard v. State, Tex.Cr.App., 496 S.W.2d 576 (Arresting officer testified he stopped a station wagon occupied by the defendants to make a driver’s license check); Oliver v. State, Tex.Cr.App., 455 S.W.2d 291 (Police officers stated they stopped the defendant for a routine driver’s license check).

On the other hand, the mere asking for a driver’s license will not validate the stopping of an automobile if it is clear the driver’s license check was not the reason for the detention. See Hall v. State, 488 S.W.2d 788, in which we said the stop of a pickup driven by the defendant could not be upheld on the basis that the defendant failed to give a left turn signal and, although the defendant was asked for his driver’s license, could not be upheld under Art. 6687b, supra, because the officer’s testimony made it clear the traffic violation was the only reason for the stop and the officer testified he probably would not have detained the defendant had the defendant not violated any laws.

In Faulkner v. State, Tex.Cr.App., 549 S.W.2d 1, two Houston police officers stopped a car driven by the defendant to check his operator’s license and to see if the car was stolen. The officers testified they noticed the vehicle because it was being driven slowly and bore out-of-county tags, and the occupants seemed cautious or conscious of the officers’ presence. The officers further testified a check of the driver’s license was a matter of routine in such situations and thus we determined the real reason for the detention was not the driver’s license check but was the cautious driving and the out-of-county tags, together with the officers’ “hunch” that the car was stolen. Relying on Hall v. State, supra, we indicated the stop was not justified under Art. 6687b, Sec. 13; however, we further said even if this statute did authorize the initial detention, the officers’ subsequent actions and investigation exceeded the authority granted by Art. 6687b, Sec. 13, and the fruits of the subsequent search were inadmissible.

Although the record before us is not fully developed, it appears Officer Villegas detained appellant’s vehicle not merely to check her operator’s license. Officer Ville-gas appeared to be awaiting the return of the “wanted” check and his request to see appellant’s driver’s license was, in part, a continuation .of the investigation into the ownership of the car. Although Officer Villegas acted lawfully in requesting to see appellant’s driver’s license, his action in detaining appellant cannot be upheld under Art. 6687b, Sec. 13, if the driver’s license check was merely a matter of routine and the actual purpose for the detention was the officer’s investigation of the ownership of the car. Hall v. State, supra; Faulkner v. State, supra. To hold otherwise would be to ignore the circumstances surrounding a temporary detention and to allow the limited authority granted by Art. 6687b, Sec. 13, to justify any detention as long as the officer asked to see a valid operator’s license.

In view of the circumstances here presented, including Officer Villegas’ suspicions that the car might have been stolen, his subsequent search for the car on the basis of this hunch, and his decision to ask appellant for her driver’s license while awaiting the information concerning the “wanted” check, we find the actual purpose of the temporary detention was not a routine driver’s license check and thus the detention was not authorized under Art. 6687b, Sec. 13.

The State further contends Officer Villegas was justified in detaining appellant temporarily, to maintain the status quo while obtaining further information. A temporary detention for purposes of investigation is a lesser intrusion upon the personal security of an individual, and may be justified under circumstances which do not amount to probable cause for arrest. Mann v. State, 525 S.W.2d 174. The reasonableness of a temporary detention is determined in light of the specific and articu-lable facts, together with rational inferences from such facts, which are known to the officer at the time of the detention. Greer v. State, Tex.Cr.App., 544 S.W.2d 125. The inarticulate hunch, suspicion or good faith of an arresting officer is insufficient to constitute probable cause for an arrest, search or temporary detention. Talbert v. State, Tex.Cr.App., 489 S.W.2d 309.

At the time Officer Villegas approached appellant’s car, he knew the following: appellant’s car had been parked, with the parking lights on, partially off the side of the road adjacent to a park and across the street from houses and apartments; after Villegas circled the block, the car had been moved; the car was. seen a few moments later in the same general vicinity. There is nothing in the record to indicate appellant had committed any traffic violation, that the area in question was a high crime area, or that there was anything unusual about the car’s description. The record does not show Officer Villegas had specific and articulable facts such as to justify the temporary detention of appellant’s automobile. Leighton v. State, Tex. Cr.App., 544 S.W.2d 394; Tunnell v. State, Tex.Cr.App., 554 S.W.2d 697. Cf. Amorella v. State, Tex.Cr.App., 554 S.W.2d 700.

The judgment is reversed, and the cause remanded.

DOUGLAS, J., dissents.


text:
    Richard Lee DENNEY, Appellant, v. The STATE of Texas, Appellee.
    No. 56074.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1977.
    Appellants Motion for Rehearing Denied Dec. 14, 1977.

      Tom Fleming, Brownsville, for appellant.
    Selden N. Snedeker, Dist. Atty. and Joe K. Hendley, Asst. Dist. Atty., Brownsville, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of capital murder; the punishment, death.

On March 15, 1976, the body of Russell James Frey was found in a work shed near his travel trailer, located in the Rio Grande Valley near Harlingen. The body was badly decomposed and through the testimony of Dr. Charles Folsom, a pathologist, it was established that the deceased had been dead at least three or four days but that it was more likely that the deceased had been dead at least five days. Death was the result of strangulation with an electric cord.

James L. Burress, a neighbor of the deceased, testified that on March 10, 1976, at approximately 6:00 p. m., he had seen the deceased talking to two men. He stated that he observed the three men over a period of fifteen or twenty minutes at which time the deceased and the two men walked into the shed where the deceased’s body was later found. He identified one of the men as the appellant but was unable to identify the other. He described the car the two men had driven as a solid black car with no chrome parts showing.

Dan Adair, a fifteen-year-old neighbor, testified that at 7:30 p. m. or 8:00 p. m. on March 9th or 10th, he had heard a power saw started followed by some screams coming from the shed owned by the deceased. He noticed a light coming from the shed and a car which he had not seen before.

On March 11, 1976, several items of personal property belonging to the deceased were found in a ship channel near Aransas Pass. Also on March 11, appellant, a resident of Aransas Pass, sold a coin collection to Sam Barrow. The appellant told Barrow he had inherited the coin collection. Several of the coins in the collection and the folders in which the coins were kept were identified as belonging to the deceased.

Janice Germany, the wife of Benny Charles Germany, an alleged co-conspirator, testified over objection that on March 10 her husband and the appellant used the car she and her husband owned. They owned a 1969 Ford which Janice Germany had painted a dark blue. She had painted all of the car including the chrome parts. She stated that in the early morning hours of March 11 her husband returned home with a small brown radio contained in a cardboard box. There was also blood on his clothing and shoes and he was wearing a shirt she did not recognize.

Over further defense objection, she was allowed to testify as to certain statements made by her husband at that time. Benny Germany told his wife that they had killed the “old man” and that the shirt he was wearing and the blood on his clothing were from the “old man.” He told her to take the bloody clothing and box in which the radio was contained and dispose of them. She then got into their car and drove down Avenue A in Aransas Pass and threw the box out on the side of the road. During the day, she attempted to burn the clothing but was unsuccessful.

Danny Lennon testified that he had seen a small brown radio owned by the deceased prior to the commission of this offense. When he reentered the trailer after the deceased was killed he did not see the small brown radio.

Alice Salter, the owner of a cafe in Aran-sas Pass, testified for the defense and stated that the appellant had been a regular customer in her cafe. She testified that on March 8, 1976, she had a conversation with the appellant where he told her he had been to the Valley. During this conversation, the appellant told Alice Salter that he had made several purchases, including a coin collection, during this trip. She stated that she had not heard of Benny Charles Germany and that the appellant had come into her cafe almost every day after March 8th.

The appellant introduced testimony of several financial transactions he had made on March 9th and 10th. On those dates, appellant had withdrawn some money from his bank and paid several bills, including his rent and an insurance bill. Appellant also introduced his telephone bill which showed that he had made a call from Aransas Pass on March 9th at 10:46 p. m.

Appellant took the stand and testified that he did not leave Aransas Pass on either March 9 or March 10 accompanied by Benny Charles Germany. He stated that he had gone to see the deceased on March 7th to discuss the purchase of a truck but when the deceased decided not to sell the truck the appellant purchased the coin collection instead. He then sold the collection to Sam Barrow on March 11th.

In appellant's grounds of error one, two and five, he alleges that the trial court erred in admitting the testimony of Janice Germany as to the statements made by her husband, Benny Charles Germany, and in overruling the motion for mistrial on this basis. Appellant also contends that the introduction of Janice Germany’s testimony violated Article 38.11, V.A.C.C.P.

In order for statements made by an alleged co-conspirator to be introduced into evidence, there must be evidence outside of and independent of the statements which tends to establish the joint act of the parties. Chapman v. State, Tex.Cr.App., 470 S.W.2d 656. When viewed in the light most favorable to the jury’s verdict, there is sufficient independent evidence to establish the conspiracy. The appellant was identified by a neighbor of the deceased, James Burress, as being at the scene of the crime on March 10 with another unidentified man. The description of the car driven by the two men, given by Burress, was similar to the type of car owned by the alleged co-conspirator, Benny Charles Germany. Janice Germany testified that on March 11 her husband returned with bloody clothing, a shirt which was the same size as worn by the deceased and a radio she had not seen prior to that night. The radio was of similar color and size as one which the deceased had owned. The appellant had sold a coin collection previously owned by the deceased. This evidence was sufficient to establish a conspiracy between Benny Charles Germany and the appellant, as found by the jury. However, in order to introduce the statements, the State must also prove that the statements made by the co-conspirator to a third party outside the presence of the accused were made in the furtherance of the conspiracy. Lapp v. State, Tex.Cr.App., 519 S.W.2d 443. Appellant argues that the conspiracy was terminated prior to the time Benny Charles Germany made the statements to his wife.

In Helms v. State, Tex.Cr.App., 493 S.W.2d 227, we faced a similar contention to that argued by the appellant. In Helms, one of the co-defendants telephoned his wife and instructed her to dispose of two guns which had been used in the commission of the crime. We held statements made by the co-defendant admissible as being in furtherance of the conspiracy.

In the instant case, the statements made to Janice Germany were for the purpose of disposing of the fruits of the crime and disposing of evidence that the crime had been committed, all in furtherance of the conspiracy and, therefore, admissible. Williams v. State, 170 Tex.Cr.R. 595, 343 S.W.2d 263; see also, Colunga v. State, Tex. Cr.App., 527 S.W.2d 285; White v. State, Tex.Cr.App., 451 S.W.2d 497; Catching v. State, Tex.Cr.App., 364 S.W.2d 691.

Appellant also contends that the testimony of Janice Germany was inadmissible under Article 38.11, V.A.C.C.P. The same contention was raised in the recent case of Burns v. State, 556 S.W.2d 270 (Delivered May 3, 1977), where we held:

“We find that the prohibition against spouses testifying against each other set forth in Article 38.11, supra, does not prohibit a spouse from testifying against his or her spouse’s co-defendant if the co-defendant is tried separately.”

Appellant’s grounds of error one, two and five are overruled.

In his grounds of error four and six, appellant contends that the evidence is insufficient to sustain a conviction for the offense of murder. We recognize and apply the rule that every circumstantial evidence case must be tested by its own facts to determine the sufficiency of the evidence. Indo v. State, Tex.Cr.App., 502 S.W.2d 166; Baker v. State, Tex.Cr.App., 447 S.W.2d 172. Further, in determining whether circumstantial evidence is sufficient, the facts must be viewed in the light most favorable to the verdict. Brown v. State, Tex.Cr. App., 475 S.W.2d 938; Carlisle v. State, Tex.Cr.App., 549 S.W.2d 698.

Considering the record as a whole and viewing it in the light most favorable to the verdict, we find the evidence sufficient to support the judgment and grounds four and six are overruled.

Appellant, in his third and seventh grounds of error, contends that the trial court erred in failing to grant a mistrial based on the absence of a subpoenaed State witness and in allowing Dr. Folsom to testify. In this case, the State subpoenaed Dr. David Flory, the pathologist who performed the autopsy. Prior to trial, the State sought a motion for continuance based upon the fact that Dr. Flory would be out of Cameron County until after the date set for trial. The appellant opposed this motion and such motion was denied by the court.

During trial, the State called Dr. Charles Folsom, a pathologist and partner of Dr. Flory, who testified concerning the time and cause of death. Dr. Folsom had not seen the deceased’s body, aided in the autopsy, or examined any tissue from the deceased. He based his testimony on the photographs taken at the scene of the crime and the “autopsy protocol” prepared by Dr. Flory. The appellant moved for a mistrial based on the absence of Dr. Flory.

In Cato v. State, 534 S.W.2d 135, this Court was faced with a similar contention as that raised in appellant’s ground of error seven. In Cato, the autopsy was performed by a Dr. Masden who then prepared an “autopsy protocol” or report and filed it with the judge. At the trial, Dr. Masden’s partner was allowed to testify as to the cause of death utilizing the report prepared by Dr. Masden. The method used in the instant case is almost identical to that method we approved in Cato and we overrule appellant’s ground of error seven. See Whitfield v. State, Tex.Cr.App., 492 S.W.2d 502; Mahaffey v. State, Tex.Cr.App., 471 S.W.2d 801; Burrell v. State, Tex.Cr.App., 446 S.W.2d 323.

In moving for a mistrial due to the absence of Dr. Flory, appellant relies upon Article 24.03, V.A.C.C.P., which provides, in essence, that once a witness has been subpoenaed either party can rely upon that subpoena. In relying upon this statute, appellant called Dr. Flory during trial and moved for a mistrial when he failed to appear. However, Article 24.12, V.A.C. C.P., provides that if a witness fails to appear, the State or the defendant is entitled to have an attachment issued for the witness. In this case, appellant failed to request an attachment which is the proper remedy for an absent witness. In any event, appellant has failed to show how he has been harmed by the absence of Dr. Flory and there is no showing as to what he would have testified. Brito v. State, Tex. CrApp., 459 S.W.2d 834; Munoz v. State, Tex.Cr.App., 435 S.W.2d 500. Appellant’s third ground of error is overruled.

In his last ground of error, appellant contends that the trial court erred in admitting photographs taken of the deceased’s body. The photographs complained of show the decomposed body of the deceased at the place where the offense was committed.

We have examined the photographs contained in the record and find that they do not fall within the exceptions enunciated in Terry v. State, Tex.Cr.App., 491 S.W.2d 161. The trial court did not err in admitting the photographs. Martin v. State, Tex.Cr.App., 475 S.W.2d 265. Appellant’s final contention is overruled.

The judgment is affirmed.


author: DALLY, Commissioner.

text:
    Rodney Malcom BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 54390.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1977.
    State’s Motion for Rehearing Denied Dec. 14, 1977.
    Cameron Gray, Grand Prairie, for appellant.
    Henry Wade, Dist. Atty., Gary M. Love and Rand Guffey, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of public lewdness, V.T.C.A. Penal Code, Sec. 21.07; the punishment is confinement in the county jail for 365 days.

The appellant asserts, in the only ground of error which we need discuss and for which we must reverse the judgment, that the information is fundamentally defective. Even though the pleading was not attacked by a motion to quash, the appellant argues that the pleading is fundamentally defective. The information, which alleges explicitly the act of deviate sexual intercourse, only alleges the appellant was reckless — about whether others were present who would be offended by the alleged act— without alleging the act or acts relied upon to constitute recklessness. The information does not allege that the act was committed in a public place, and therefore whether the appellant was reckless about whether another was present who would be offended or alarmed by his act is a necessary element of the offense.

Art. 21.15, V.A.C.C.P., provides:

“Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.”

Since the information fails to allege one necessary element of the offense in the manner required by Art. 21.15, V.A.C.C.P., the information is fundamentally defective. American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974); and see Cole v. State, 556 S.W.2d 343 (1977). Also see the opinions interpreting Art. 408a, V.A.C. C.P., 1925, which is the statute from which Art. 21.15, V.A.C.C.P., 1965, was derived. Scott v. State, 344 S.W.2d 457 (Tex.Cr.App. 1961); Jones v. State, 388 S.W.2d 716 (Tex. Cr.App.1965).

The judgment is reversed and the prosecution under this information is ordered dismissed.

Opinion approved by the Court.

      . V.T.C.A. Penal Code, Sec. 21.07, provides:
      “Sec. 21.07. Public Lewdness “(a) A person commits an offense if he knowingly engages in any of the following acts in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by his act:
      “(1) an act of sexual intercourse;
      “(2) an act of deviate sexual intercourse; “(3) an act of sexual contact;
      “(4) an act involving contact between the person’s mouth or genitals and the anus or genitals of an animal or fowl.
      “(b) An offense under this section is a Class A misdemeanor.”
      Although this section is entitled Public Lewdness, it prohibits not only acts of lewdness in public places, but those acts done in private places if the actor is reckless about whether others are present who will be offended or alarmed.


author: DOUGLAS, Judge.

text:
    Billy Carl THRELKELD, Appellant, v. The STATE of Texas, Appellee.
    No. 54976.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1977.
    Appellant’s Motion for Rehearing Denied Dec. 21, 1977.
    Thomas A. Autry, Austin, for appellant.

      Tim C. Curry, Dist. Atty., Marvin Collins, R. J. Adcock and Ronald G. Knight, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for possession of cocaine. Punishment was assessed by the court at three years.

Appellant contends that the court erred in overruling his motion to quash the indictment on the theory that possession of cocaine under Section 4.04(a) of the Controlled Substances Act is not illegal per se but becomes illegal only when not obtained directly from, or pursuant to, a valid prescription of a practitioner.

Section 4.04(a) of the Controlled Substances Act, V.A.C.S., 4476-15, under which appellant was indicted, provides:

“Except as authorized by this Act, a person commits an offense if he knowingly or intentionally possesses a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice.”

The indictment alleged that appellant “did then and there knowingly and intentionally possess a controlled substance, namely cocaine, a derivative and compound of coca leaves.” It did not allege that appellant’s possession of cocaine was not pursuant to a valid prescription or doctor’s order.

Prior to the enactment of the Controlled Substances Act this Court enunciated the rule that where a penal statute embraces an exception which is part of the statute itself, or the exception appears within the enacting clause of the law, it is necessary for the state to negate such an exception in the indictment. Baker v. State, 132 Tex.Cr.R. 527, 106 S.W.2d 308 (1937); Ford v. State, 105 Tex.Cr.R. 114, 286 S.W. 1089 (1926); Moore v. State, 90 Tex.Cr.R. 604, 236 S.W. 477 (1922).

V.T.C.A., Penal Code, Section 2.02(b), codified this common law rule:

“The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant’s conduct does not fall within the exception.”

Prior to the enactment of the Controlled Substances Act appellant’s argument would have been well taken. The traditional rule upon which appellant relies, however, is no longer applicable to indictments charging possession of controlled substances. Article 4476-15, Section 5.10(a), expressly removed the burden of negating in an indictment any exemptions or exceptions under the act and placed the burden of going forward with the evidence with respect to such exemptions or exceptions upon the defendant. Wilson v. State, 520 S.W.2d 377 (Tex.Cr. App.1975); Thompson v. State, 495 S.W.2d 221 (Tex.Cr .App.1973).

This Court has consistently abided by the rule of statutory construction that a special provision as to a particular subject matter controls over general language which might otherwise govern. We hold, therefore, that the specific provisions of V.A.C.S., Article 4476-15, Section 5.10(a), prevail over the traditional rule set forth in Section 2.02(b) of the Penal Code and that the failure of an indictment to negate exceptions under Article 4.04(a) of the Controlled Substances Act will not render it defective.

Appellant also attacks the constitutionality of the Controlled Substances Act upon the theory that it delegates to the executive branch of the state government purely legislative power to determine what shall be illegal. Specifically, appellant challenges the authority of the State Commissioner of Health under V.A.C.S., 4476 — 15, Section 2.09, to amend, add to, or delete substances from the Schedules enumerated in the act. He reasons that if the act makes the possession of controlled substances a penal offense, and if the Commissioner may amend or make additions to the list of controlled substances, then the Legislature has invalidly vested in the Commissioner the authority to determine what shall be a crime.

Appellant challenges Section 2.09(a) of the Controlled Substances Act as it relates to all penal provisions of the statute. It is, however, incumbent upon an accused to show that he has been charged or convicted under that portion of the statute the constitutionality of which he questions. State v. Scott, 460 S.W.2d 103 (Tex.1970); Ex parte Usener, 391 S.W.2d 735 (Tex.Cr.App.1965); Donahoo v. State, 162 Tex.Cr.R. 388, 285 S.W.2d 952 (1956). This Court will not pass on the validity of any part of the Controlled Substances Act which is not shown to have been violated, McClane v. State, 170 Tex. Cr.R. 603, 343 S.W.2d 447 (1960), nor will it decide constitutional issues on a broader basis than the record requires. Christ v. State, 480 S.W.2d 394 (Tex.Cr.App.1972); Deeds v. State, 474 S.W.2d 718 (Tex.Cr.App. 1972).

The scope of this Court’s review is therefore limited to the Commissioner’s delegated power to add or reschedule controlled substances, possession of which is made a penal offense by that section of the Act under which appellant was himself convicted, V.A.C.S., Article 4476-15, Section 4.04. We find that with regard to this section of the Controlled Substances Act appellant’s argument is without merit.

V.A.C.S., Article 4476-15, Section 2.09(a), delegates to the State Commissioner of Health, with the approval of the State Board of Health, the authority to add to, delete, or reschedule any substance enumerated in Schedules I through V of the Controlled Substances Act. Of critical importance is the fact that the Commissioner is not given the power to add to, delete, or reschedule any controlled substance enumerated in Penalty Groups One through Four.

Section 4.04 of the Act, under which appellant was convicted, does not concern itself with Schedules I through V. It proscribes the possession of only those controlled substances appearing in Penalty Groups One through Four, whose contents are fixed. Inasmuch as the Commissioner may not alter these Penalty Groups in any fashion, he does not have the authority to determine which substances are or are not subject to criminal sanction under Section 4.04 of the Act. See Riddle v. State (No. 55,890, November 2, 1977); Henderson v. State (No. 56,157, November 16, 1977). Contrary to appellant’s assertion, the Commissioner cannot determine what shall be a crime. No unconstitutional delegation of power is shown.

No error having been shown, the judgment is affirmed.


author: ROBERTS, Judge.

text:
    Willie GRIGGS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 55499 to 55501, 55677, 55712 and 55713.
    Court of Criminal Appeals of Texas.
    Nov. 30, 1977.

      Melvyn Carson Bruder, Dallas, for appellant.
    Henry Wade, Dist. Atty., and Jerome L. Croston, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

These are appeals from five convictions for delivery of controlled substances and one conviction for theft under our former Penal Code. The appellant simultaneously entered a plea of nolo contendere in each of the six cases, and after a trial before the court the trial judge assessed punishment in each case at five years’ confinement in the Texas Department of Corrections.

The appellant contends, in each case, that there is no evidence to support the convictions and that there is insufficient evidence to support the convictions. We reverse the conviction for theft and affirm the five convictions for delivery of a controlled substance.

The appellant, in each case, waived a trial by jury and entered a plea of nolo conten-dere pursuant to Article 1.13, Vernon’s Ann. C.C.P. Article 1.15, Vernon’s Ann.C.C.P.

In Cause No. C-72-813-J (our Cause No. 55.499), the appellant was charged with theft under Article 1410 of our former Penal Code. At trial, the State introduced a written stipulation, signed by the appellant and his attorney, to the following effect:

“I judicially confess that if Frank Tharp [the complainant] testified, he would testify that on the 19 day of November, 1971, in Dallas County, Texas, I did unlawfully and fraudulently take $105.19 current money of the U.S.A. and over the value of $50.00 the same being the corporeal personal property of M. Frank Tharp.”

The appellant testified that the stipulation was “ . . . substantially true and correct.”

In Cause No. F-75-459-J (our Cause No. 55.500), the appellant was charged with delivery of a controlled substance to G. O. Smith. At trial, the State introduced a written stipulation, signed by the appellant and his attorney, to the following effect:

“I judicially confess that if G. 0. Smith testified, he would testify that on the 5 day of November, 1974, in Dallas County, Texas, I did knowingly and intentionally deliver a controlled substance, to wit: heroin to G. 0. Smith as charged in the indictment.”

The appellant testified that the stipulation was “ . . . substantially true and correct.”

In Cause No. F-75-460-J (our Cause No. 55,501), the appellant was charged with delivery of a controlled substance to G. 0. Smith. At trial, the State introduced a written stipulation, signed by the appellant and his attorney, to the following effect:

“I judicially confess that if G. 0. Smith testified, he would testify that on the 5 day of November, 1974, in Dallas County, Texas, I did knowingly and intentionally deliver a controlled substance, to wit: heroin to G. 0. Smith as charged in the indictment.”

The appellant testified that the stipulation was “ . . . substantially true and correct.”

In Cause No. F-75-2663-J (our Cause No. 55,677), the appellant was charged with delivery of a controlled substance to Sam Allen. At trial, the State introduced a written stipulation, signed by the appellant and his attorney, to the following effect:

“I judicially confess that if Sam Allen testified, he would testify that on the 6 day of November, 1974, in Dallas County, Texas, I did knowingly and intentionally deliver a controlled substance, to wit: marihuana to Sam Allen as charged in the indictment.”

The appellant testified that the stipulation was “ . . . substantially true and correct.”

In Cause No. F-75-2664-J (our Cause No. 55,712), the appellant was charged with delivery of a controlled substance to Sam Allen. At trial, the State introduced a written stipulation, signed by the appellant and his attorney, to the following effect:

“I judicially confess that if Sam Allen testified, he would testify that on the 6 day of November, 1974, in Dallas County, Texas, I did knowingly and intentionally deliver a controlled substance, to wit: heroin to Sam Allen as charged in the indictment.”

The appellant testified that the stipulation was “ . . . substantially true and correct.”

Finally, in Cause No. F-75-2665-J (our Cause No. 55,713), the appellant was charged with delivery of a controlled substance to Sam Allen. At trial, the State introduced a written stipulation, signed by the appellant and his attorney, to the following effect:

“I judicially confess that if Sam Allen testified, he would testify that on the 8 day of November, 1974, in Dallas County, Texas, I did knowingly and intentionally deliver a controlled substance, to wit: heroin to Sam Allen as charged in the indictment.”

The appellant testified that the stipulation “ . . . was substantially true and correct.”

In Cause No. C-72-813-J (our Cause No. 55,499), the appellant contends that there is no evidence in the record to support the conviction in that the stipulation introduced at trial as State’s Exhibit No. 1 is not contained in the record and it was not read into the record at the trial. The record contains an instrument designated as “Waiver of Jury — Agreement to Stipulate .,” which repeats verbatim the written and signed stipulation referred to above in connection with Cause No. C-72-813-J (our Cause No. 55,499). The fact that it does not contain a notation designating it as State’s Exhibit No. 1 is of no consequence since it is contained in the record. The appellant’s contention is without merit and overruled.

However, the appellant also contends that the written stipulation is insufficient to sustain the conviction because the stipulation fails to show that the money was taken from the possession of Frank Tharp or without the consent of Frank Tharp, as alleged in the indictment.

An allegation and proof of possession is essential to a conviction under Article 1410. Clements v. State, 375 S.W.2d 304 (Tex.Cr.App.1964); Webb v. State, 169 Tex. Cr.R. 594, 336 S.W.2d 158 (1960). The allegation of ownership in the stipulation does not prove that the money was taken from the possession of Frank Tharp. O’Mary v. State, 152 Tex.Cr.R. 319, 213 S.W.2d 683 (1948); Winn v. State, 138 Tex.Cr.R. 202, 135 S.W.2d 118 (1940). The stipulation fails to prove that Frank Tharp possessed the money.

Moreover, an allegation and proof of an owner’s lack of consent are required before a conviction for theft will be sustained. Martinez v. State, 494 S.W.2d 182 (Tex.Cr.App.1973); Mitchell v. State, 166 Tex.Cr.R. 291, 313 S.W.2d 286 (1958). The stipulation fails to prove that the theft was without the consent of Frank Tharp.

The judgment in Cause No. C-72-813-J (our Cause No. 55,499) must be reversed.

In Cause Nos. F-75h159-J, F-75-460-J, F-75-2663-J, F-75-2664-J, and F-76-2665-J (our Cause Nos. 55,500, 55,501, 55,-677, 55,712, and 55,713), the appellant makes identical contentions.

In each of these five cases, the appellant initially contends that there is no evidence to support the convictions because the stipulations introduced at trial as State’s Exhibit No. 1 in each case are not contained in each respective record, and none of the stipulations were read into the records at trial. Each of the five records contains an instrument designated as “Waiver of Jury — Agreement to Stipulate . . which repeats verbatim the written and signed stipulations referred to above in connection with each of the cases. The fact that none of them contain a notation designating them as State’s Exhibit No. 1 is of no consequence, since they are contained in the record of each respective case. The appellant’s initial contention in each of the five cases is without merit and overruled.

The appellant’s second contention in each of these five cases is that there is insufficient evidence to support the five convictions because each respective stipulation negates the appellant’s guilt.

The written stipulations of the testimony of the complainant in each case provide proof of every element of the offense of delivery of a controlled substance. They provide all the proof necessary to establish the appellant’s guilt. Cf. Stergis v. State, 451 S.W.2d 914 (Tex.Cr.App.1970). Appellant’s second contention in each of these five cases is overruled.

The judgment in Cause No. C-72-813 — J (our Cause No. 55,499) is reversed, and the judgments in Cause Nos. F-75-459-J, F— 75-460-J, F-75-2663-J, F-75-2664-J, and F-75-2665-J (our Cause Nos. 55,500, 55,501, 55,677, 55,712 and 55,713) are affirmed.

      . Article 4476-15, Vernon’s Ann.Civ.St.

      . Vernon’s Ann.P.C., Article 1410.

      . The indictment alleged that the appellant:
      “did unlawfully and fraudulently take one hundred five dollars and nineteen cents current money of the United States of America and of the value of over $50.00, the same being the corporeal personal property of M. Frank Tharp from the possession of the said M. Frank Tharp without the consent of the said M. Frank Tharp and with the intent to deprive the said M. Frank Tharp of the value thereof, and with the intent to appropriate it to the use and benefit of him, the said Willie Griggs . . . .”


text:
    Ex parte Gilbert VASQUEZ.
    No. 56242.
    Court of Criminal Appeals of Texas.
    Nov. 30, 1977.

      Thomas Rocha, Jr., San Antonio, for appellant.
   OPINION

ONION, Presiding Judge.

This appeal is taken from an order entered in a habeas corpus proceeding in the 227th District Court of Bexar County refusing to reduce bail.

The record reflects that on August 3, 1977 the appellant was indicted for capital murder. The said indictment charged that appellant intentionally and knowingly caused the death of Maria Guajardo by shooting her with a gun while in the course of committing and attempting to commit robbery. Bail was set at $100,000.

On August 9, 1977 appellant filed his petition for writ of habeas corpus seeking reduction of bail. A hearing on said petition was held on August 16, 1977, following which the court refused to reduce bail.

The twenty year old petitioner testified that he was in jail, that he was unable to make the amount of bond set, that he did not own any real estate, no stocks or bonds, had no money in the bank and no cash anyplace. He related he had a ten year old automobile, but he gave it to “another lawyer” and that it did not belong to him anymore. He testified he had made a $10,-000 bond in an aggravated robbery case, and could possibly make a $10,000 bond in the instant case. He told the court he was paying his lawyer $35 a week on his fee, and if released could find a job with an uncle at $80 or $85 a week.

Petitioner testified he did not have a pistol inside the grocery store and did not shoot the deceased as alleged. On cross-examination he acknowledged that he drove co-defendant Magdalino Rodriquez to the grocery store, but stated he did not know Rodriquez was going to shoot anyone, that he did not give Rodriquez a gun, and that he did not wait for Rodriquez. He admitted he later saw Rodriquez running several blocks away from the store and inquired as to his running, but Rodriquez “didn’t say nothing. He was afraid.” Petitioner related that Rodriquez had no gun in his hand and no bag with money in it. He denied splitting the money with Rodriquez. When asked where he and Rodriquez went after he picked up Rodriquez, who had been running, the court sustained the objection to further interrogation by the State.

The State offered no evidence and at the conclusion of the hearing the court refused to reduce bail. In its findings the court found, among other things, that the petitioner had failed to show he is financially unable to make bond in the amount of $100,000. On the same date as the hearing the petitioner filed a pauper’s oath for the purposes of obtaining a record on appeal of the habeas corpus proceedings. The court on the same date ordered the transcription furnished without cost, finding petitioner was a pauper.

Article 17.15, Vernon’s Ann.C.C.P., provides:

“The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:
“1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
“2. The power to require bail is not to be so used as to make it an instrument of oppression.
“3. The nature of the offense and the circumstances under which it was committed are to be considered.
“4. The ability to make bail is to be regarded, and proof may be taken upon this point.”

The burden of proof is on petitioner for reduction in bail to show that bail set is excessive. Ex parte August, 552 S.W.2d 169 (Tex.Cr.App.1977); Ex parte Clark, 537 S.W.2d 40 (Tex.Cr.App.1976); Holliman v. State, 485 S.W.2d 912 (Tex.Cr.App.1972).

The primary object or purpose of an appearance bond is to secure the presence of the defendant in court upon the trial of the accusation against him. Fly v. State, 550 S.W.2d 684 (Tex.Cr.App.1977); McConathy v. State, 528 S.W.2d 594 (Tex. Cr.App.1975). While bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, the power to require bail is not to be used so as to make it an instrument of oppression. See Article 17.15(1) and (2), supra; Ex parte Kerr, 549 S.W.2d 6 (Tex.Cr.App. 1977); Ex parte Clark, supra.

The evidence was meager, but did show that petitioner’s home was in San Antonio and that he had a construction job with an uncle if he were to be released on bail. There was nothing to show that petitioner had a criminal record and no showing as to whether or not petitioner had a past history of failing to appear while on bond.

The nature of the offense was shown to be capital murder (V.T.C.A., Penal Code, § 19.03), which carries a penalty of life imprisonment or death (V.T.C.A., Penal Code, § 12.31). And when considering the nature of the offense in setting bail, the punishment permitted by law may be considered. Ex parte Clark, supra; Ex parte Bufkin, 553 S.W.2d 116 (Tex.Cr.App.1977). As to the circumstances under which the offense was committed, there was also little evidence offered. While the return of an indictment establishes probable cause as a matter of law, Ex parte Branch, 553 S.W.2d 380 (Tex.Cr.App.1977); Ex parte Preston, 533 S.W.2d 820 (Tex.Cr.App.1976); Ex parte Sellers, 516 S.W.2d 665 (Tex.Cr.App. 1974); Ex parte White, 486 S.W.2d 301 (Tex.Cr.App.1972), the only testimony as to the circumstances under which the offense was committed came from the petitioner. He denied his guilt or that he was implicated with Rodriquez, the apparent trigger man in the murder-robbery alleged. He did admit he drove Rodriquez to the grocery store and subsequently picked him up several blocks from the store. He stated he did not know that Rodriquez had a gun or had shot anyone and denied he split the money with Rodriquez. From the evidence offered, it would appear that petitioner’s criminal responsibility, if any, would fall under the provisions of V.T.C.A., Penal Code, § 7.01 and § 7.02.

It appears to be undisputed that appellant was indigent, and while he indicated that he might be able to post a $10,-000 bond, he did not reveal how he would be able to do so. Appellant’s indigency is a circumstance to be considered, but it is not a controlling circumstance nor the sole criterion in determining the amount of bail. Ex parte Sierra, 514 S.W.2d 760 (Tex.Cr. App.1974); Ex parte Runo, 535 S.W.2d 188 (Tex.Cr.App.1976); Ex parte Clark, supra; Ex parte McClellan, 545 S.W.2d 483 (Tex. Cr.App.1977); Ex parte Kerr, supra.

When appellant’s indigency is considered along with the nature of the offense and the only testimony as to the circumstances under which the offense was committed which was offered, as well as all other testimony introduced, we conclude that the bail of $100,000 was excessive. The power to require bail is not to be used as an instrument of oppression. Article 17.15, supra; Ex parte Bufkin, supra. Bail is reduced and set in the sum of $20,000.

It is so ordered.

      . The aggravated robbery apparently grew out of the same transaction as the instant case.

      .The record is somewhat confusing on this fact. When asked what kind of bond he, his family or friends could make, petitioner answered:
      “A. I think that the same amount I had at first.
      “Q. Do you mean another $10,000 or the same — the original $10,000 bond?
      “A. The original $10,000.”
      The witness was then passed.

      . The source of the $35 weekly payments was not revealed.

      . The State has not filed a brief in this cause.

      . While the trial court found that the petitioner had not shown he was financially unable to make a $100,000 bond, appellant’s testimony as to his indigency was undisputed. On the same date as the habeas corpus hearing the court, upon petitioner’s affidavit, found the petitioner a pauper for the purposes of appeal.


author: ODOM, Judge.

text:
    Ex parte David Michael POWELL.
    No. 56385.
    Court of Criminal Appeals of Texas.
    Nov. 30, 1977.

      John Judge, Amarillo, for appellant.
    Tom A. Curtis, Dist. Atty. and Morris L. Overstreet, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order of the 181st District Court denying relief on petitioner’s pretrial application for writ of ha-beas corpus. See Art. 44.34, V.A.C.C.P.

On March 3, 1977, petitioner was respondent in a hearing under V.T.C.A., Family Code Section 54.02 to determine whether the juvenile court should waive its exclusive original jurisdiction and transfer petitioner to the district court for criminal proceedings. The juvenile court did order such a transfer in an order entered March 4 that appears regular on its face. On September 16, 1977, petitioner filed his application in the district court, alleging errors in the juvenile court hearing in the admission of evidence, the sufficiency of findings of fact and the sufficiency of the evidence to support the findings. The amount of bail was also challenged as excessive. The amount was reduced and is not challenged in this Court.

At the outset we must determine whether habeas corpus jurisdiction should be exercised to review the matters asserted by petitioner as error in the juvenile court hearing.

Article 5, Section 8, of the Texas Constitution provides in part:

“The District Court . . . and the judges thereof, shall have power to issue writs of habeas corpus, mandamus, injunction and certiorari, and all writs necessary to enforce their jurisdiction.”

See also Art. 11.05, V.A.C.C.P. From the district court’s consideration of petitioner’s habeas corpus application appeal was taken to this Court. Art. 44.34, V.A.C.C.P. The issue, then, is whether the district court properly entertained petitioner’s claims relating to the juvenile court hearing.

Habeas corpus may be used to challenge any unlawful restraint. Art. 11.23, V.A.C.C.P.; Ex parte Guzman, Tex.Cr.App., 551 S.W.2d 387 (concurring opinion). It is also true, however, that habeas corpus may not be used as a substitute for appeal. Mixon v. State, Tex.Cr.App., 365 S.W.2d 364; Ex parte Eldridge, 154 Tex.Cr.R. 50, 224 S.W.2d 262; Ex parte Loper, 153 Tex. Cr.R. 240, 219 S.W.2d 81.

Petitioner here does not challenge the validity of the indictment (cf. Ex parte Menefee, No. 54780, October 5, 1977, pending on rehearing), nor does he contest probable cause (cf. Ex parte Garcia, Tex.Cr.App., 547 S.W.2d 271). Neither is the facial validity of the order transferring jurisdiction challenged. He seeks instead a pre-trial review of the proceedings in the juvenile court. Cf. Jackson v. State, Tex. Cr.App., 548 S.W.2d 685. The Legislature has provided a statutory procedure for review of the issues petitioner seeks to raise by habeas corpus. V.T.C.A., Family Code Sec. 56.01 provides in part:

“(a) An appeal from an order of a juvenile of a juvenile court is to the Texas Court of Civil Appeals and the case may be carried to the Texas Supreme Court by writ of error or upon certificate, as in civil cases generally.
“(c) An appeal may be taken by or on behalf of the child from:
(1) an order entered under Section 54.02 of this code respecting transfer of the child to criminal court for prosecution as an adult, . .

We hold the proper procedure for petitioner to secure review of the matters challenged here lies not in habeas corpus, but by statutory appeal in the civil courts system of this State under the above quoted provision of the Family Code. The record reveals that petitioner failed to perfect review under the State statutory procedure that was available to him.

While this Court’s original habeas corpus jurisdiction is unlimited, State v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892, and while regulatory legislative action is not required before this Court can exercise its habeas corpus powers, and is not capable of abolishing or restricting the substantive scope of those powers, State ex rel. Wilson v. Harris, Tex.Cr.App., 555 S.W.2d 470, 472, the exercise of our original habeas corpus jurisdiction is discretionary. Ex parte Norvell, Tex.Cr.App., 528 S.W.2d 129, 130.

In light of the available statutory appeals procedure through the civil courts, we hold that the district court should not have entertained the application for habeas corpus, and we decline to exercise our original habeas corpus jurisdiction. Accordingly, we order the application for habeas corpus be dismissed and petitioner be remanded to custody.

It is so ordered.


text:
    Jessie Giles ROPER, Appellant, v. The STATE of Texas, Appellee.
    No. 53420.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1977.

      W. B. “Bennie” House, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and H. E. Bert Graham, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Roper was convicted of the offense of burglary with intent to commit theft. Two prior convictions were alleged for enhancement under the former code, Article 63, V.A.P.C. His punishment was assessed at life.

The sufficiency of the evidence is not challenged. An apartment was burglarized and a television and jewelry and papers were taken. A black notebook was found in the apartment. A telephone number in front of the notebook was that of appellant’s mother. Handwriting experts established that the writing on the first two pages of the notebook matched the handwriting exemplar of appellant. The wife of appellant’s cousin testified that appellant and his wife brought a television set to her house. He told her it was stolen and left it there so he could pawn it the next day. Appellant testified that the notebook found in the apartment belonged to him but an old acquaintance must have taken it from the glove compartment of his car and had framed him. Appellant testified that he had been a good thief and that he would not have had any identification on him when he entered into the apartment; that he had been in the penitentiary many times for different crimes. On cross-examination he testified that he was the person who had been convicted for the crimes alleged for enhancement purposes and that the first conviction was final before the offense for the second conviction was committed. He admitted that he had been convicted in four cases for burglary and four cases of felony theft.

Appellant contends that the court erred at the punishment phase of the trial in overruling his objection to the court’s charge. The court instructed the jury to find that if appellant, prior to the commission of the offense of burglary, had two times daily and legally been convicted for a felony less than capital as charged in the indictment to sign the first form of verdict or if the jury did not believe from the evidence that he had not so been previously convicted to sign the second form of the verdict.

The objection to the charge was that the prior convictions were not properly proved and that the court did not charge on a term of years in the event the jury failed to find the defendant is the same person who had twice before been convicted. Under the' former code of criminal procedure where a defendant admitted the prior conviction the court did not have to charge the jury on the matter. Ex parte Reyes, 383 S.W.2d 804 (Tex.Cr.App.1964); Salinas v. State, 365 S.W.2d 362 (Tex.Cr.App.1963). See Pitcock v. State, 367 S.W.2d 864 (Tex.Cr.App.1963). Under the present penal code, Section 12.-42(d), the punishment where two prior convictions have been shown is life as it was under Article 63 of the former penal code.

The punishment was absolutely assessed by law because appellant admitted his two prior felony convictions and the jury found him guilty of the present offense. The court was under no obligation to instruct the jury concerning the prior convictions.

In Schultz v. State, 510 S.W.2d 940 (Tex. Cr.App.1974), the refusal to require the jury to assess punishment did not constitute error where the defendant had been prior to the commission of the charged offense two times duly and legally convicted of a felony. In Rummel v. State, 509 S.W.2d 630 (Tex. Cr.App.1974), it was contended that the court erred in withdrawing the question of punishment from the jury and submit its only charge as to the prior felony convictions. The Court held that once the jury returned a verdict of true as to the prior convictions there was no necessity for the jury to assess punishment because it was automatically fixed by law. See Longoria v. State, 507 S.W.2d 753 (Tex.Cr.App.1974); Schultz v. State, supra; and Lopez v. State, 464 S.W.2d 882 (Tex.Cr.App.1971). In Handy v. State, 160 Tex.Cr.R. 258, 268 S.W.2d 182 (1954), this Court held that it was not reversible error to require the jury to find the defendant guilty of the primary offense and to find that he had been convicted of the prior offense or to find him not guilty without permitting it to return a verdict for a number of years. See Punchard v. State, 142 Tex.Cr.R. 531, 154 S.W.2d 648 (1941), and Moreno v. State, 541 S.W.2d 170 (Tex.Cr.App.1976). The reasoning in the above cases still applies.

Next, appellant contends that the court erred in submitting the prison records to the jury at the guilt-innocence stage of the trial. The record does reflect that the jury requested the records and received them but it does not show when this was done. Appellant admitted these prior convictions at the guilt-innocence stage of the trial. On direct examination he had gone into the matter of his prior convictions. After this the State was entitled to show the entire transaction concerning each conviction.

Appellant complains that he was denied a motion for continuance and did not have time to prepare his defense and had ineffective assistance of counsel. A letter was written by appellant to the court about a continuance. The court asked appellant if he had desired further hearing on the matter. Appellant stated that he wanted a postponement until he could get his witnesses. During this hearing his counsel advised him that he would issue subpoenas for any people that the appellant requested as witnesses and the State agreed to allow the defendant to put on their evidence the following day. The record does not show what was done in regard to obtaining witnesses.

There is no motion for new trial showing what the alleged witnesses would testify to. Nothing is preserved for review.

The record does reflect that the wife of appellant was called to testify outside the presence of the jury. She exercised her right not to do so under the Fifth Amendment of the Constitution of the United States. The counsel for appellant stated that his wife was the only one that might be acquainted with any of the matters in the case.

There is no showing that the court erred in proceeding with the trial. The State offered to put on its evidence and give appellant time to obtain witnesses. The one witness who was present, his wife, took the Fifth Amendment. No inadequate representation of counsel is shown.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Jesse Marion BINNION, Appellant, v. The STATE of Texas, Appellee.
    No. 53830.
    Court of Criminal Appeals of Texas.
    Dec. 7, 1977.
    Gerald R. Lopez, Odessa, court appointed, for appellant.
    John H. Green, Dist. Atty., and Dennis Cadra, Asst. Dist. Atty., Odessa, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for delivery of marihuana. Punishment, enhanced by two prior felony convictions, was assessed at life.

The State offered evidence that appellant sold 14.19 ounces of marihuana to Jerry Davis for $160.00. At the time of the sale, Davis was an undercover investigator working for the Ector County District Attorney’s Office.

The appellant contends that “the trial court erred in excluding evidence which could have impeached” Davis. During cross-examination, Davis testified that he had never smoked any marihuana and that he had never offered to sell any heroin to the appellant.

The appellant offered the testimony of Linda Hickman and Carroll Bowman in an effort to impeach these statements. The trial court excluded most of Hickman’s and all of Bowman’s testimony. Hickman did testify at one time before the jury that she saw Davis offer to sell the appellant heroin. After lengthy argument, the trial court ruled that this was a collateral matter and sustained the State’s objection. By way of a bill of exception, appellant shows that Hickman would have testified that she saw Davis offer to sell heroin to the appellant, and that she had seen Davis smoking marihuana.

The court excluded all of Bowman’s testimony, but the bill of exception shows he would have testified that he saw Davis offer to sell the appellant some heroin.

Evidence of specific acts of misconduct by a witness is not generally admissible for impeachment purposes. Hoffman v. State, Tex.Cr.App., 514 S.W.2d 248; Ran dolph v. State, Tex.Cr.App., 499 S.W.2d 311; Thrash v. State, Tex.Cr.App., 482 S.W.2d 213. An exception to this rule is set forth in Montemayor v. State, Tex.Cr.App., 543 S.W.2d 93. In Montemayor, this Court stated:

“It is fundamental that when a witness in a criminal case testifies about a specific fact or event, and that fact or event is more than a very minor detail of his testimony, then the opposing side may present evidence to rebut the testimony. Such impeachment goes directly to the credibility of the witness, a factor that in many eases may critically affect the outcome of the prosecution. E. g., Daley v. State, Tex.Cr.App., 491 S.W.2d 932; Simons v. State, 167 Tex.Cr.R. 15, 317 S.W.2d 740; Freeman v. State, 166 Tex. Cr.R. 626, 317 S.W.2d 726; Redding v. State, 161 Tex.Cr.R. 53, 274 S.W.2d 712 (on motion for rehearing).”

The testimony of Davis that he had never offered to sell heroin to appellant and that he had not smoked marihuana cannot be considered as minor details of his testimony.

The proffered impeachment testimony went to the credibility of the witness and had a relationship to the instant case.

The State urges that the witness Hickman did in fact get her testimony before the jury that Davis offered to sell appellant heroin. The record reflects that immediately prior to the court retiring the jury the following transpired:

“Q. [defense counsel] . . . Now, at that time, did you see Mr. Davis approach Jesse and ask him if he wanted to buy some heroin?
“A. Yes, sir, I did.
“Q. Would you describe the circumstances and tell us what happened.”

At this point, the jury was removed from the courtroom and the witness answered in response to the prosecutor’s question that she could not testify that the events in question happened on March 12, 1975, the date of the alleged sale.

Appellant then developed his bill of exception in which Hickman testified that she saw Davis smoking marihuana “at that time or around that time” and that appellant told Davis “to get away from him.” In response to further questioning as to the date, Hickman answered in the affirmative to a question whether the events happened “around March 12.” Hickman stated that Davis tried to talk appellant into selling for him and told him “he wouldn’t have to worry about the law if he did go in with him.” The bill of exception further included the testimony of one Carroll Bowman that Davis tried to approach appellant “around March 12” and offered to sell him some heroin and that he heard Davis try to talk appellant into selling heroin.

While Hickman did testify before the jury that Davis did approach appellant and ask if he wanted to buy heroin, this was but a small portion of the relevant impeachment testimony proffered by appellant in his bill of exception.

The State further urges that “the witness could not testify as to the date of the alleged transactions.” We find the testimony in the bill places the date of the matters constituting the impeachment testimony at a time so as to relate to the offense upon which appellant was tried.

The State further urges that if this Court had had the opportunity to observe the two impeachment witnesses as they testified out of the presence of the jury, “it, too, may have detected a definite competency question apart from irrelevance.” Our attention is directed to testimony of one of the impeachment witnesses that the smell of marihuana “drives my dog sexually crazy.”

It may very well have been that the jury would not have found the testimony of the two impeachment witnesses believable and chosen to completely reject same. Nonetheless, the jury was the sole judge of the credibility of the witnesses and we are not at liberty to speculate on who it would have chosen to believe.

The exclusion of the proffered impeachment testimony was error and requires reversal of this cause. Montemayor v. State, supra.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: KEITH, Justice.

text:
    D. G. COUNCIL et al., Appellants, v. BANKERS COMMERCIAL LIFE INS. CO. et al., Appellees.
    No. 8001.
    Court of Civil Appeals of Texas, Beaumont.
    Oct. 13, 1977.
    Rehearing Denied Nov. 10, 1977.
    Bert D. Bader, Jack Pew, Jr., Dallas, for appellants.
    R. Jack Ayres, Jr., Joe Burnett, Dallas, for appellees.
   KEITH, Justice.

Defendants appeal from an adverse judgment rendered in a trial to a jury of a case involving alleged tortious interference with contractual relationships between the plaintiff, Bankers Commercial Life Insurance Company, and one of its former employees, E. Y. Scott.

Part I

Scott, a former president of Bankers, embezzled in excess of $450,000 from Bankers and, according to our record, confessed to such fact and agreed to make restitution insofar as he was able. Scott, either individually or through a corporation which he controlled, Nationwide Interiors, Inc., owned an equity in a tract of land consisting of 115 acres of land in Kaufman County as well as an undivided one-tenth interest in a joint venture in other lands in the same county. According to Scott and his lawyer, as well as John Adnor — sole controlling stockholder of Bankers Insurance — Scott agreed to convey his holdings in the Kaufman County property to Bankers in partial restitution of his embezzlement. In addition, he agreed to cooperate with Adnor and Bankers in the prosecution of their claims against the defendants.

Plaintiff Bankers sued Scott and the other defendants claiming that the defendants, Nash (who was president of a bank in Kaufman which held certain notes executed by Scott) and Council, conspired to defeat Bankers’ claim to the Kaufman County lands standing in the name of Scott or his corporate alter ego. In view of our disposition of the appeal, it is unnecessary to elaborate further upon the details of the claims or the testimony offered in support thereof.

Although Scott was cast in the role of a defendant in the pleadings, it is readily apparent from an examination of the lengthy record that he was a willing collaborator with Bankers in their joint effort to secure a judgment against the other defendants. Yet, he was called as an adverse witness by Bankers and its counsel was permitted — over timely and proper objections — to lead the witness in giving damaging testimony against the other defendants. Upon cross-examination it developed that anything he recovered, as a cross-plaintiff, would go to Bankers. This is an illustrative excerpt from the record:

“Q So anything that they [Bankers] recover from any assets that you have transferred to them goes to reduce that $457,000.00 theft that you took from them; is that right?
“A As far as I understand it, yes, sir.
“Q Anything you might recoup out of this case you wouldn’t realize anything out of it? It would go to that company; is that what you are saying?
“A As far as I understand it, yes, sir.”

We summarize the five adjudicatory paragraphs in the judgment as follows:

A. Bankers recovered judgment (1) against Nash, individually, for the sum of $52,363.61; (2) against Scott, Nash, and Council, jointly and severally, for actual damages in the sum of $24,000; and (3) against Nash and Council, jointly and severally, exemplary damages in the sum of $9,000.
' B. Scott, as cross-plaintiff, recovered (1) judgment against Nash and Council for actual damages in the sum of $17,500 and (2) against the same two individuals as exemplary damages, the sum of $8,000.

Scott did not even file a motion for new trial and has made no complaint as to the judgment which Bankers recovered against him. Only Nash and Council have appealed, and they complain of the entire judgment.

Under the record, as it developed upon the trial, there was no conflict between Scott and Bankers and the only issues submitted to the jury as between those parties were based upon undisputed testimony and served as a predicate for liability issues against Nash and Council.* Thus, the case developed precisely as predicted by defendants — there was no conflict between Bankers and Scott.

Our preliminary statement invokes the rationale of Perkins v. Freeman, 518 S.W.2d 532 (Tex.1974), and Tex.Rev.Civ. Stat.Ann. art. 2151a (Supp.1977), which requires the trial court, after alignment of the parties, to equalize the number of peremptory challenges. Defendants have shown, by formal bill of exception, that they made a timely objection to the failure to equalize the peremptory challenges. It is shown by a formal bill of exception:

“[Bjefore the selection of the jury, defendants objected to the Court that plaintiff, Bankers Commercial Life Insurance Company, and E. V. Scott should not be permitted each to have six peremptory challenges to the jury panel, but should only be allowed a total of six peremptory challenges, and in support of such objection, urged to the Court that plaintiff and Scott were aligned together against defendants and made known to the Court that Scott had assigned all his assets to plaintiff prior to the trial, including his right of recovery in this action, and such objection was overruled by the Court, and the Court ruled that plaintiff and Scott each would be entitled to six peremptory challenges.”

The complaint was brought forward into the amended motion for new trial [as assignments 154 and 155] and now forms the basis of defendants’ point of error No. 49. The point is sustained.

The rule governing the granting of peremptory challenges is clearly stated in Perkins v. Freeman, supra:

“Whether such defendants are parties within the meaning of Rule 233, so as to entitle them to separate peremptory challenges, depends on whether their interests are, at least in part, antagonistic in a matter that the jury is to be concerned with.” (518 S.W.2d at 533, emphasis supplied)

Had Bankers sued only Scott, under our record it would have been entitled to a peremptory instruction since Scott admitted the factual basis of Bankers’ suit. There was no issue for the jury’s determination. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752, 755 (Tex.1970); Texas Sling Company v. Emanuel, 431 S.W.2d 538, 540 (Tex.1968). Bankers and Scott were not, in the language of Perkins, “antagonistic in a matter that the jury is to be concerned with.”

But, plaintiff argues that defendants have not shown by the record that they “were forced to prematurely exhaust their peremptory challenges, nor does the record reflect in any manner how the Appellants [defendants] were injured by the jury selection process.” Some courts have held that denial of jury strikes is subject to the harmless error rule. See, e. g., Spiritas v. Robinowitz, 544 S.W.2d 710, 720 (Tex.Civ.App.— Dallas 1976, writ ref’d n. r. e.), but a close examination of the opinion shows that the harmless error rule was invoked because of unusual procedural problems present in that case. See also King v. Maldonado, 552 S.W.2d 940 (Tex.Civ.App. — Corpus Christi 1977).

Under the undisputed record before us, plaintiff and Scott were aligned together; and a review of the lengthy record discloses that plaintiff’s counsel used this cozy relationship to achieve an unfair advantage over the defendants. Following the rule enunciated in Perkins v. Freeman, quoted earlier, we hold that the action on the part of the trial court in awarding Bankers and Scott twice the number of peremptory challenges as were awarded to defendants was so materially unfair that defendants were denied a fair trial. This abuse of discretion requires a reversal of the judgment under the rationale of Tamburello v. Welch, 392 S.W.2d 114, 117 (Tex. 1965), which was followed in Perkins v. Freeman, supra.

Accordingly, we sustain defendants’ Point No. 49 and reverse the judgment of the trial court and remand the cause for a new trial. Lipshy v. Lipshy, 525 S.W.2d 222, 226 (Tex.Civ.App. — Dallas 1975, writ dism’d).

Part II of this opinion relates to procedural matters which are of little consequence to the jurisprudence of this State; consequently, although it is an integral part of our opinion, we order it not published pursuant to the provisions of Tex.R.Civ.P. 452.

The error discussed requires a reversal of the judgment of the trial court and a remand of the cause. Our examination of the remaining assignments does not reveal any complaint which would require a rendition of the judgment, and the other points seeking a remand of the cause complain of matters which may not arise upon another trial. For the error herein mentioned, the judgment is reversed and the cause is remanded.

REVERSED and REMANDED.