author: DENTON, Justice. POPE, Justice,

text:
    Cecil A. ROBINSON, Petitioner, v. C. W. WEAVER et al., Respondents.
    No. B-6072.
    Supreme Court of Texas.
    April 6, 1977.
    Rehearing Denied May 18, 1977.

      Shafer, Gilliland, Davis, Bunton & McCol-lum, W. 0. Shafer and James M. O’Leary, Odessa, Finley & Scogin, Robert Scogin, Kermit, for petitioner.
    James D. Cunningham, Odessa, Little & Little, Jack N. Little, Big Spring, for respondents.
   DENTON, Justice.

The trial judge has rendered a summary judgment in this medical malpractice case, holding that the plaintiff’s cause of action for damages due to misdiagnosis is barred by the two-year statute of limitations. The court of civil appeals has reversed and remanded, holding that the “discovery rule” applies and that a question of fact exists concerning when the plaintiff knew or should have known of his injury. 536 S.W.2d 243. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

The plaintiff injured his back on July 26, 1971. On August 6, 1971, the defendant performed radiographic and other tests upon the plaintiff, and concluded that plaintiff had a herniated disc between his fourth and fifth lumbar vertebrae. Four days later, the defendant surgically repaired the disc diagnosed as herniated. The plaintiff remained in the defendant’s care until late December of 1971, during which time he continued to have back pains. On January 26, 1972, the plaintiff saw another physician,’who’pfescribed'iTback brace, and later on ApriR25,1972,"performed.. radiographic tests which_resulted. .in. a diagnosis of a herniated disc. The following day, April 26, 1972, aTherniated disc between the third and fourth lumbar, vertebrae was excised. The ("gravamen of plaintiff’s claim is, therefore, ⅞(1^ defendant erroneously diagnosed plaintiff’s condition and operated on the wrong intervertebral disc.

This action was filed by plaintiff on April 4, 1974,"more than Two yéarslííteí’plaintiff had chañgécTphysicians, but less than two years after the alleged" actual discovery of an injury'dlfferent from that diagnosed and treated by...defendant in August of 1971. The applicable statute of limitations is Article 5526 of the revised civil statutes, providing:

There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not after-wards, all actions or suits in court of the following description:
6. Action for injury done to the person of another.

The defendant asserts that plaintiff’s action is barred by limitations. The plaintiff claims he did not actually discover, nor in the exercise of ordinary care should he have discovered, that there was a misdiagnosis until the results of the second operation were known to him, and that his cause of action did not, therefore, accrue until such time.

For the purposes of application of statutes of limitations, a cause of action generally can be said to accrue at the time when facts come into existence which authorize a claimant to seek a judicial remedy, Williams v. Pure Oil Company, 124 Tex. 341, 78 S.W.2d 929 (1935). In personal injury actions, this means when the wrongful act effects an injury, regardless of when the claimant learned of such injury. An exception to this rule of accrual has been applied by this and many other courts in some situations in which a claimant was unable to know of his injury at the time of actual accrual; the exception is known as the “discovery rule.” The issue in this case is whether this “discovery rule” will be applied to an action founded upon a misdiagnosis.

In Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967), we held that a “cause of action for negligent leaving of a foreign object in a patient’s body by a physician accrues when the patient learns of, or, in the exercise of reasonable care and diligence, should have learned of the presence of such foreign object in his body.” 417 S.W.2d at 580. Gaddis is representative of what now may be considered the majority rule in the United States. Annot., When Statute of Limi tations Commences to Run against Malpractice Action Based on Leaving Foreign Substance in Patient’s Body, 70 A.L.R.3d 7 (1976). The statute of limitations in a cause of action for negligent performance of a vasectomy operation was held in Hays v. Hall, 488 S.W.2d 412 (Tex.1972), to have commenced to run “on the date of discovery of the true facts concerning the failure of the operation, or from the date it should, in the exercise of ordinary care and diligence, have been discovered. And we found no reversible error court of civil appeals’ holding that a cause of action for excessive treatment with X-rays did not “accrue” for limitations purposes until the plaintiff, a cancer patient, had learned that excessive radiation, and not a recurrence of cancer, was the cause of her ulcerated epidermis. Grady v. Faykus, 530 S.W.2d 151 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.).

The result in “discovery rule” cases like Gaddis, Hays v. ifaZTand Grady v. Faykus stems from ‘ the recdgmti0iFof~ the purposes of statutes of limitations; and,“at the same time, recognition of what is not the statutes’ • purpose, but an unfortunate, occasional by-product. The primary pur-poseof aTstatute of .limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. Price v. Estate of Anderson, 522 S.W.2d 690 (Tex.1975); Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816 (1950). Statutes of limitations are not directed to the merits of any individual case, they are a result of the legislative assessment of the merits of cases in general. The fact that a meritorious claim might thereby be rendered nonassertible is an unfortunate, occasional by-product of the operation of limitations. All statutes of limitations provide some time period during which the cause of action is assertible. However, preclusion of a legal remedy alone is not enough to justify a judicial exception to the statute. The primary purpose of limitations, to prevent litigation of stale or fraudulent claims, must be kept in _mind. See Note, 30 Sw. L.J. 950 (1976).

This Court has specifically limited its pri- or holdings regarding this discovery rule in malpractice cases. In Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967), this Court limited its holding to causes of action in which a foreign object is left in the body of a patient, noting that in this type of ease there is an f^inability to know of the negligent act” and that it is a “peculiar type of case which is not particularly susceptibel to fradulent prosecution." this same rationale was also expressed in the "vasectomy" case, Hays v. Hall, 488 S.W.2d 412 (Tex.1973). There this Court held “that in malpractice cases arising from vasectomy operations the Statute of Limitations commences to run on the date of the discovery of the true facts concerning the failure of the operation, or from the date it should, in the exercise of ordinary care and diligence, have been discovered.” 488 S.W.2d at 414. In Gaddis v. Smith, supra this Court quoted with approval, the following language from Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961):

[T]he question when a cause of action accrues is a judicial one, and to determine it. in any particular case is to establish a general rule of law for ¿¡ri'class of cases, which rule must be fourided~on reason and justice. .
In the absence of legislative definition and~ speeification, the . . . courts have often been called upon .to .delineate tlie statute; they have conscientiously sought to apply it with due regard to the underlying statutory policy of repose, without, however, permitting unnecessary jnjustices. . . . [I]n still other instances they have declined to find the bar inequitable though the plaintiff admittedly knew nothing about the cause of action until shortly before the institution of his action; in reaching this result they were not unaware of the individual injustice to the plaintiff but presumably determined that, on balance, it ■ was outweighed by the need for repose and the danger that a different approach might undermine the statutory goal.

173 A.2d at 285.

Immediately following the above quoted language, the New Jersey Court in Fernan-di v. Strully.distinguished the “foreign object” case from other types of medical malpractice cases, noting that it “does not raise questions as to [plaintiff’s] credibility nor does it rest on matters of professional diagnosis, judgment_or„dis_cretipn.’’ In such'a' case, “the lapse of time does not entail the danggr_of a false or frivolous claim nor the danger_of a speculative or uncertain claim.”

The case before us however does “rest on matters of professional diagnosis, judgment or discretion.” This distinction between an “alleged misdiagnosis” case and a “foreign object” case was also clearly drawn in Owens v. White, 380 F.2d 310 (9th Cir. 1967), in the following language:

Extension of the discovery rule to encompass a case of the type involved here would subject physicians to the possibility of liability, or at least to the embarrassment and expense of litigation, upon claims of mistaken diagnosis of any illness, however great may have been the lapse of time between the date of cessation of the doctor-patient relationship and the formal prosecution of the claim. The danger of (“fra u d uleni> and stalejLclhims, which the Idaho court recognized to be diminished in foreign object cases, is obviously..enhanced..when.the_ claim o_fjnedical mjdpractice_Js_predicated upon alleged _ misdiagnosis. In such a case, unlike the_ foreign object situations, not even the fact of injury can alwavs..be..clear. — Even in its present stage of advanced development, medicine is not an exact science. Symptoms and diseases thought at one time, even recently, to fall into one category are later discovered, through the evolution of the science, to fall into another. If the trier of fact should be convinced, upon the basis of new knowledge, that a mistaken diagnosis was made, the defendant’s task of establishing that his conduct did not fall below the standard of care which prevailed in his profession at the time and place of the alleged error could prove insurmountable in the event of sufficient lapse of time.

380 F.2d at p. 316 (emphasis supplied).

The cause of action alleged in the present case is founded upon an alleged misdiagnosis in August of 1971. Plaintiff, to prove his cause of action, faces the burden of proving both a mistake in professional judgment and that such mistake was negligent. Expert testimony would be required. Physical evidence generally i$ not available when the primary issue relgyant to .liability ..concerns _ correctness of past judgment. Unlike Gaddis v. Sniith-there exists in the present case no ^physical evidence which in-and-of-itself establishes The negligence of some person. What physical evidence was to the cause of action alleged f, in Gaddis v. Smith, expert testimony is to] the cause of action in the present case. Even the fact of injury is a matter of expert testimony.

Likewise in Hays v. Hall the defendant doctor’s error was established by the physical fact that plaintiff’s wife became pregnant and was also subject to proof by performance of fertility tests upon the plaintiff. Sterility vel non involved a wholly different line of inquiry from the erroneous judgment vel non involved in the present case. SterilityJ&jsstahlishable by I physical proof; negligently erroneous judg-j mentJby_fixpert. .testimony.

Grady v. Faykus goes somewhat further than did this Court in Hays v. Hall and Gaddis v. Smith, in that the court of civil appeals applied the “discovery rule” to a cause of action founded upon negligent treatment. Mrs. Grady, following a radical mastectomy for breast cancer, was referred by her surgeon to' the defendant physicians for administration of X-ray therapy. Such therapy was concluded by the defendants in November of 1969. Ten months later, in September of 1970, Mrs. Grady was informed by a plastic surgeon that skin ulcers in areas exposed to radiation were the result of excessive doses of radiation. Suit was filed against the therapist-doctors in June of 1972, more than two years after the termination of treatments by the defendants, but less than two years following the date on which she became apprised of the cause of her pain. The “discovery rule” was applied, and this Court found no reversible error. It must be pointed out that Mrs. Grady’s claim was not against her surgeon for recommending X-ray therapy; it was for the negligent administration of such therapy. If she in fact received excessive doses of radiation, such could be established by proof of her present bodily condition.

Assuming for the moment that strict application of limitations would have an unintended effect in the present case, in that plaintiff’s claim would be held barred less than two years after he knew of his injury, it is nevertheless clear that the purpose of limitations would be furthered by such application. Proof of plaintiff’s cause of action would demand expert testimony concerning the interpretation of tests made in 1971. While present physical evidence might exist which proves that plaintiff’s disc was excised in 1971, the main issue of negligent exercise of judgment is subject to proof only by expert hindsight. The line between negligent diagnbsis'and the negli^ geñt treatment in Grady v. Faykus may indeed be a fine one, but the. distinction is_ necessary in order to assure that the primary purpose of statute, of limitations is met. We decline to apply the discovery rule to encompass a case of the type involved here.

The judgment of the court of civil appeals is reversed, and the judgment of the trial court is affirmed.

Dissenting Opinion by POPE, J., in which ■ McGEE, JOHNSON and YARBROUGH, JJ., join.

POPE, Justice,

dissenting.

I respectfully dissent. The case presents a single question: Does the “discovery rule” apply to an action based upon a medical doctor’s misdiagnosis? The majority answers no. By so holding, the majority treats misdiagnosis differently than we have treated other types of medical malpractice. I disagree with the majority holding. I believe that we should be consistent with our prior holdings and apply the “discovery rule” to a doctor’s misdiagnosis.

In Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967), this court applied the “discovery rule” to a foreign object negligently left in a patient’s body. In Hays v. Hall, 488 S.W.2d 412 (Tex.1973), we extended the “discovery rule’s” coverage to an unsuccessful vasectomy operation. The Corpus Christi Court of Civil Appeals, in Grady v. Faykus, 530 S.W.2d 151 (Tex.Civ.App.1975, writ ref’d n.r.e.), applied the rule to negligently administered X-ray treatments. In Nichols v. Smith, 507 S.W.2d 518 (Tex.1974), both vagus nerves were severed during a hernia operation. This court noted the discovery rule issue was not raised and stated:

In so far as Mrs. Nichols bases her claim on the alleged severence [sic] of . the vagus nerve, it could be argued that the case is governed by the discovery rule .. Our action in affirming . is not to be understood, therefore, as holding that the discovery rule has no application here. Id. at 521.

In Sanchez v. Wade, 514 S.W.2d 812 (Tex.Civ.App.1974, no writ), the El Paso Court of Civil Appeals applied the “discovery rule” to a doctor’s negligent and incorrect diagnosis. The El Paso court made the same holding in the case now before us. The “discovery rule” has also been applied in other areas of Texas law.

As Professor Prosser explains, there has been a “wave of decisions” adopting the “discovery rule” for all medical malpractice actions. PROSSER, LAW OF TORTS, § 30 (4th ed. 1971). The decision of Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.2d 220 (1967), is the most frequently cited opinion in this line of cases. In Yoshizaki, the court recognizes that there are two conflicting public policies at issue. There is the policy of protecting the practitioner from stale demands, and there is the conflicting policy favoring the adjudication of meritorious claims. Balancing these two policies, the Hawaii Supreme Court concluded that the burden placed upon the doctor is less than the injustice the plaintiff would-suffer if the discovery rule was not applied. The Hawaii court explained that, “A basic reason underlying statutes of limitátionisTron-existentr the^lamHff~Eas'nof~deTayed voluntarily uTassertiñg^ier'craimT’ IñTreach-ing tfie“sáñTg“«jmrtasion, "the Oregon Supreme Court noted that it is impossible on a theoretical basis to apply the discovery rule to one kind of malpractice and not to other types of malpractice. Frohs v. Greene, 253 Or. 1, 452 P.2d 564 (1969). The Oregon court explained that in all malpractice, “it is unfair to say a person can maintain an action before he knows he has one.” We explained in Hays v. Hall that it is unjust to hold that a “legal remedy is unavailable to the injured party before he can know that he is injured.” I agree with the Oregon Supreme Court that this reasoning is as equally applicable to a misdiagnosis action as it is to a foreign object or vasectomy action.

It is important to note that Mr. Weaver remained under Dr. Robinson’s treatment from August, 1971, through December, 1971. During this period, he continually complained of persistent pain and infection around the incision area. Dr. Robinson responded to these complaints by telling Mr. Weaver that he was “worrying too much.” The majority opinion in effect says that a patient trusts his physician’s advice at his own risk. In a similar situation, the Michigan Supreme Court explained that:

[I]t would be “illogical and unintelligent” to require a patient to determine on the date he last consults a physician that malpractice has taken place, when he in fact relies upon the advice that constitutes the malpractice. So to hold would punish the patient who relies upon his doctor’s advice and places a premium on skepticism and distrust. Johnson v. Caldwell, 371 Mich. 368, 123 N.W.2d 785 (1963).

The California Supreme Court has long recognized that due to a doctor and patient’s fiduciary relationship, “facts which would ordinarily require investigation may not excite suspicion, and that the same degree of diligence is not required of the injured person.” Stafford v. Shultz, 42 Cal.2d 767, 270 P.2d 1 (1954); Hobart v. Hobart Estate Co., 26 Cal.2d 412, 159 P.2d 958 (1945). The Oklahoma Supreme Court has stated that “justice would often be defeated” if victims of medical malpractice must diagnose their injuries where “special knowledge not possessed by an ordinary layman” is required. Seitz v. Jones, 370 P.2d 300, 302 (Okl.1961). The Supreme Court of Rhode Island reasoned that where the discovery rule is not allowed, a patient could only protect his legal rights against a doctor’s malpractice by submitting to a complete examination by an independent doctor after every treatment or operation. Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968). In the case at hand, Mr. Weaver only discovered the misdiagnosis when he finally did submit to an examination by an independent doctor. His delay in making this discovery resulted from his trust and reliance upon Dr. Robinson’s advice. To hold that his cause accrued when the misdiagnosis occurred encourages patients to distrust their doctors. As we stated in Hays, “A result so absurd and so unjust ought not be possible.”

The steps in the discovery of Mr. Weaver’s cause of action are closely akin to the steps taken in Gaddis. Like Gaddis, Weaver had knowledge of internal pain but had no knowledge of cause. Only after the second myelogram, on April 25, 1972, which revealed the ruptured disc, did Weaver reasonably know of the existence of his cause of action. As in Gaddis and Hays, the statute of limitations in this case should run from the date of discovery.

It is true that in a misdiagnosis case, a physical object is not involved, but this does not mean that a fraudulent claim may be more easily asserted. As the Hawaii Supreme Court stated in Yoshizaki v. Hilo Hospital:

[Treatment generally follows diagnosis. The treatment is an objective fact which may be proved or disproved by people other than plaintiff. The fact that the treatment is the kind normally administered for the ailment the doctor allegedly improperly diagnosed is strong evidence of the diagnosis. 50 Haw. 150, 433 P.2d 220 (1967).

We have already applied the discovery rule in cases which did not involve physical objects. See, Hays v. Hall, supra; Grady v. Faykus, supra. In our facts, the care and treatment that Dr. Robinson prescribed for Mr. Weaver are safe indicia of the misdiagnosis. In addition to the treatment, the office and hospital records supply further reliable evidence of misdiagnosis.

The New York courts have not limited the discovery rule to foreign object cases. In Murphy v. St. Charles Hospital, 35 A.D.2d 64, 312 N.Y.S.2d 978 (1970), a prosthesis was inserted in a patient’s hip. Four years later the prosthesis broke, and surgery was required to remove it. In Dobbins v. Clifford, 39 A.D.2d 1, 330 N.Y.S.2d 743 (1972), a patient’s spleen was severely damaged during a pancreas operation. In both cases, the discovery rule was applied. The court in each case reasoned that discovery was difficult because the malpractice was committed internally. The same reasoning applies to Dr. Robinson’s myelogram of Mr. Weaver which was also performed internally-

I would affirm the judgment of the court of civil appeals and make the Texas law consistent with our other malpractice decisions instead of applying the “discovery rule” sometimes and sometimes denying its applicability. The rule announced by the majority encourages a spirit of distrust of one’s doctor, it unfairly denies a cause of action before one learns that he has a cause, and it is contrary to the leading cases throughout the country. The rule denies protection to the uninformed victim of the malpraetitioner.

I would affirm the judgment of the court of civil appeals.

McGEE, JOHNSON and YARBROUGH, JJ., join in this dissent.

      . The “discovery rule” applies in actions based on fraud, Ellison v. McGlaun, 482 S.W.2d 304 (Tex.Civ.App.1972, writ ref’d n.r.e.), and fraudulent concealment in medical malpractice cases, Thompson v. Barnard, 142 S.W.2d 238 (Tex.Civ.App.1940), affd, 138 Tex. 277, 158 S.W.2d 486 (1942). In an action for breach of contract, or implied warranty, the statute of limitations runs from the time plaintiff knew or should have known of the breach. Rothman v. Gulf Coast Investment Corp., 497 S.W.2d 792 (Tex.Civ.App.1973), rev’d on other grounds, 506 S.W.2d 856 (Tex.1974). Recently, the rule was applied in a suit for defamation. Kelley v. Rinkle, 532 S.W.2d 947 (Tex.1976).

      . Courts now more generally applying the discovery rule to medical malpractice cases are: Mayer v. Good Samaritan Hospital, 14 Ariz. App. 248, 482 P.2d 497 (1971); Stafford v. Shultz, 42 Cal.2d 767, 270 P.2d 1 (1954); Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (1970); City of Miami v. Brooks, 70 So.2d 306 (Fla.1954); Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.2d 220 (1967); Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1970); Lipsey v. Michael Reese Hospital, 46 Ill.2d 32, 262 N.E.2d 450 (1970); Baines v. Bienderman, 223 N.W.2d 199 (Iowa 1974): Tomlinson v. Siehl, 459 S.W.2d 166 (Ky.1970); Springer v. Aetna Casualty and Surety Company, 169 So.2d 171 (La.App.1964); Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966); Johnson v. Caldwell, 371 Mich. 368, 123 N.W.2d 785 (1963); Acker v. Sorensen, 183 Neb. 866, 165 N.W.2d 74 (1969); Iverson v. Lancaster, 158 N.W.2d 507 (N.D.1969); Frohs v. Greene, 253 Or. 1, 452 P.2d 564 (1969); Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745 (1968); Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974); Janisch v. Mullins, 1 Wash.App. 393, 461 P.2d 895 (1969). Six states, including Texas and three of the above jurisdictions, have enacted special statutes of limitation placing a maximum limitation on the time allowed for discovery. 7 St. Mary’s L.J. 770 (1976).


source: Caselaw Access Project

author: BROWN, Commissioner. ONION, Presiding Judge. DOUGLAS, Judge,

license: Public Domain

text:
    Lennie Keith ARMSTRONG, Appellant, v. The STATE of Texas, Appellee.
    No. 51763.
    Court of Criminal Appeals of Texas.
    July 14, 1976.
    State’s Motion for Rehearing May 3, 1977.

      Robert C. Roe, Jr., Fort Worth, for appellant.
    Tim Curry, Dist. Atty., and Marvin Collins, Jerry C. Buckner and Paul E. Gartner, Asst. Dist. Attys., Fort Worth, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for the offense of burglary of a habitation under V.T.C.A. Penal Code, Sec. 30.02. The trial was before a jury which found appellant guilty; punishment was assessed by the court at fifteen (15) years in the Texas Department of Corrections, the punishment being enhanced under the provisions of V.T. C.A. Penal Code, Sec. 12.42(c). Appellant was represented by appointed counsel at trial and by different appointed counsel on appeal.

The record shows that at 2:20 p. m., January 5, 1975, Officer L. T. Murphy of the Fort Worth Police Department stopped a “black over blue” 1966 Plymouth on the east side of Fort Worth. The officer stated that he stopped the car because he “had received information about ten days before of such a vehicle being wanted for the investigation of a burglary.”

Appellant was driving the car and with him were Willie Arthur Sneed and Alice Miller. The officer arrested Sneed on outstanding warrants and then requested permission to search the vehicle. Appellant consented, and opened the trunk of the car. In the trunk were a portable color television, an electronic calculator, two tape players and a trumpet and case, and a small blue suitcase containing transistor equipment. Appellant and Mrs. Miller were arrested for investigation of burglary and transported to the Fort Worth city jail along with the Plymouth and the contents of the trunk.

At 7:00 p. m. on January 5, 1975, Prince Charles Ray returned to his home at 3901 Hardeman on the east side of Fort Worth and discovered that the kitchen door of the home had been broken open. Broken glass from the window pane in the door was scattered on the kitchen floor. Ray searched the home and determined that a portable color television, an electronic calculator, two tape players, and a trumpet and case were missing.

Appellant’s Motion to Suppress was overruled and the items were introduced into evidence over appellant’s objections. Ray identified the items in court as the same items stolen from his home on January 5. Officer Murphy identified the items as the same items found in the trunk of appellant’s car.

We have reviewed the three grounds of error asserted by appellant’s appointed counsel as well as the numerous grounds of error raised in the series of pro se briefs filed in this Court between November 5, 1975 and May 14, 1976 and find them to be without merit. In light of our disposition of this appeal, no further discussion of those grounds of error is necessary.

Although not raised as a ground of error in appellant’s brief, we have determined that the admission into evidence of the items seized from the trunk of appellant’s car was error. Appellant timely filed a Motion to Suppress the evidence seized during the search of the car on the grounds that the search and seizure were illegal. After a hearing, the trial court overruled appellant’s Motion to Suppress. The items were introduced into evidence at the trial over appellant’s timely objections that they were the results of an illegal search and seizure. Though not assigned as error either in appellant’s motion for new trial or in appellant’s brief, we have reviewed the record in the interest of justice pursuant to Art. 40.09, Section 13, V.A.C.C.P.

The record at the hearing on appellant’s Motion to Suppress contains the following testimony of Officer L. T. Murphy concerning his apprehension of appellant, Sneed and Mrs. Miller:

“Q When you saw the Defendant, Len-nie Keith Armstrong, what was he doing?
“A He was driving a vehicle northbound on Dillard Street.
‘Q Do you recall the description of the vehicle?
‘A It was a black over blue.
‘Q All right. What kind of—
‘A ’66 Plymouth.
‘Q What did you do when you saw Mr. Armstrong driving this vehicle?
‘A I proceeded to stop him with my emergency lights.
‘Q Okay. And what did he do when you turned on the lights?
‘A He had pulled over to the curb and exited from the vehicle.
‘Q Would you tell the Judge why you stopped him?
‘A I had received information from the Records Bureau and other officers that a certain vehicle and suspects were wanted on several burglaries. I went to the Records Office at this time and looked up the record of the suspect and did see a ‘wanted’ on this suspect.
“The suspect I am talking about is Willie Arthur Sneed.
‘Q Okay.
‘A And there was notes on the record that he was possibly driving a ’66 Plymouth.
‘Q That Sneed was?
‘A Yes, a light blue car.
‘Q Did you have any information — Was your information on just Sneed, or did you have information on — about anybody else or whether he was wanted all by himself or what?
‘A No, sir. The only information that I had was with Willie Arthur Sneed.
‘Q What was the description of the vehicle that you got?
‘A It was a light blue, ’66 Plymouth. I received the last three digits of the license number, but I didn’t have the first two digits — first three letters of the license plate.
‘Q Were you able to ascertain who this vehicle belonged to?
'A Yes, sir, it belonged to Lennie Keith Armstrong.
“Q Okay. So, what was your purpose in stopping the ear? Did you place him under arrest when you stopped him or what happened?
“A I asked him for their identification.
“Q Did they produce identification?
“A Yes, sir. When they identified theirselves, I advised them they were under arrest for investigation of burglary.”

Officer Murphy also testified that appellant consented to the search of his car which revealed the stolen items.

On cross-examination Murphy stated that his first knowledge about a ’66 Plymouth being involved in a burglary came from another officer about a week prior to appellant’s arrest. He said that he and the other officer looked in the records and found that Willie Arthur Sneed was wanted on an outstanding warrant and that he was possibly driving a light blue ’66 Plymouth. The car was first seen by Murphy the day before the arrest of appellant. He said he saw it parked in the 2700 block of Dillard Street and that on the next day he saw the car again but it “appeared that it had been painted over with spray cans like you buy in the store,” giving it the “black over blue” appearance he described during his testimony at the trial. Murphy further stated that he did not know that the car belonged to appellant until after the arrest when he checked the registration number of the car.

The legality of the search hinges on whether or not the facts and circumstances recited by Officer Murphy were sufficient to justify his initial stop of appellant’s ear.

In Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974) the arresting officers relied on a federal narcotics agent’s detailed teletype message that a car fitting the description of Colston would be in the Waco area. The message named Colston and his companion, gave the color, make and license number of the car and indicated that the persons were armed and believed to be carrying narcotics. The Waco officers ran a license check and determined that the vehicle was registered to Colston at a Waco address. An officer spotted the vehicle parked at a lounge, radioed for back-up officers and then arrested Colston as he was about to enter the car.

We held the search of Colston’s vehicle invalid, stating:

“The officers involved did not rely upon any unusual conduct on the part of the appellant observed by them to conclude that criminal activity may be afoot and that the appellant may be armed and dangerous for their ‘probable cause’ to investigate, but relied solely upon the teletype. They had a right to rely thereon and assume the officer causing the same to be issued had ‘probable cause’ for an investigative stop, but where the record fails to reflect that the issuing officer had such ‘probable cause,’ the investigative stop is not insulated from challenge. Whiteley v. Warden, Wyoming State Penitentiary [401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971)].
“The State might very well have proven probable cause, but it did not prove probable cause either for the warrantless arrest or investigative stop so as to justify the initial intrusion involved.”

The information relied on by Officer Murphy is not so detailed as that provided by the federal narcotics agent’s teletype message in Colston, supra. Furthermore, there were no suspicious circumstances involved in appellant’s driving down the street in the middle of the day. There was no traffic violation to justify the stop as in Hampton v. State, 511 S.W.2d 1 (Tex.Cr.App.1974). There were no “specific, articu-lable facts, together with rational inferences from those facts, that reasonably warrant suspicion” that the vehicle contained evidence of a crime. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The mere presence of a “black over blue ’66 Plymouth” seven days after Officer Murphy received his information fails to justify a stop of appellant’s car just as the “apparent Mexican ancestry” of a car’s occupants failed to justify the auto search in Brignoni-Ponce, supra. Under the circumstances the trial court reversibly erred in overruling appellant’s Motion to Suppress.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

In our opinion on original submission we reversed appellant’s conviction for the offense of burglary of a habitation based on the illegality of the search involved.

On rehearing the State urges we reconsider our position. It argues that illegality of the search was not raised as a ground of error by the appellant. This argument, of course, overlooks the provisions of Article 40.09, § 13, Vernon’s Ann.C. C.P., which requires this court to review unassigned error “in the interest of justice.” Further, the overruling of a pretrial motion to suppress is sufficient to preserve error in admission of evidence which was the subject of the motion to suppress. Riojas v. State, 530 S.W.2d 298 (Tex.Cr.App.1975); Writt v. State, 541 S.W.2d 424 (Tex.Cr.App.1976).

We shall, however, reexamine the search question. The record reflects that about 2:30 p. m. on January 5,1975, Lieutenant L. T. Murphy of the Ft. Worth Police Department, Patrol Division, stopped a car driven by the appellant on the east side of Ft. Worth. There was another man and a woman in the car. The purpose of the stop was for “identification” and “possible suspects in burglaries.” The appellant displayed his driver’s license upon request, and Murphy asked if he knew a “Willie Arthur” and appellant said he did not. The officer then asked the other man for identification, and upon learning he was Willie Arthur Sneed, arrested him on an outstanding warrant. He then asked the appellant to open the car trunk and there found a television set, a calculator, tape players, a trumpet and a case and other items which appellant claimed as his. Appellant and the woman, Alice Miller, were arrested for investigation of burglary and taken to jail. Later that evening Prince Charles Ray discovered upon his return home that his house had been burglarized and that items found in appellant’s trunk had been taken. This was reported to the police.

The question presented is whether Lt. Murphy was authorized to make the stop involved. The record reflects that a week or ten days before Murphy received information concerning several burglaries. He testified, “I had received information from the Records Bureau and other officers that a certain vehicle and suspects were wanted on several burglaries. I went to the Records office at this time and looked up the record of the suspect and did see a ‘wanted’ on this suspect,” which he indicated was Willie Arthur Sneed. He related that his .information included the fact that Sneed was “possibly” driving a light blue 1966 Plymouth and that he received only the last three digits of the license number. Murphy stated at the time he knew Sneed only by name and did not know what he looked like.

The original source of the information about the burglaries and the car that Murphy received was not revealed. Whether it came from some informer’s tip or merely reflected the suspicions of other officers is not shown. Nor was it reflected when or where the burglaries occurred.

On January 4, 1975 Murphy observed a light blue 1966 Plymouth parked in the 2700 block of Dillard Street. The next day about 2:30 p. m., while on patrol, he saw a 1966 Plymouth being driven in the 2600 block of Dillard Street. The car was black over blue and appeared to have been “painted over with spray cans like you buy in the store.” It appeared to Murphy to be the same car he had seen the day before, and when he checked the license plate it was. Whether, however, the license plate involved the last three digits that Murphy had earlier received is not reflected by the record.

Upon observing the car in the 2600 block of Dillard Street, Murphy decided to make a stop to check identification of possible burglary suspects.

It is well settled that “[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In such circumstances the prosecution need not demonstrate that probable cause to arrest a suspect existed at the inception of the detention, although such a detention is within the protection of the Fourth Amendment of the United States Constitution, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), and Article I, § 9 of the State Constitution. This court has frequently said that circumstances short of probable cause for arrest may justify temporary detention for the purposes of investigation since an investigation is considered to be a lesser intrusion upon the personal security of the individual. Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.1976); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976); Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.1975); Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975); Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970), cert. den., 400 U.S. 918, 91 S.Ct. 180, 27 L.Ed.2d 158. And it has been held that an occupant of an automobile is just as subject to a brief detention or stop as is a pedestrian. Adams v. Williams, supra; Wood v. State, supra; Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976).

The totality of the circumstances surrounding the incident are looked to in determining whether the police conduct was reasonable. State v. Hooker, 113 Ariz. 450, 556 P.2d 784 (1976); State v. Gastelo, 111 Ariz. 459, 532 P.2d 521 (1975). While a temporary investigative detention is allowed under certain circumstances, these circumstances must be such as to distinguish the activity of the detained person from that of any other citizen and must be based on an objective perception of events rather than the subjective feelings of the detaining officer. In order to justify the intrusion, the law enforcement officer must have specific, articulable facts, which in the light of his experience and general knowledge, together with other inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen detained for further investigation. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, supra; Ablon v. State, supra; Mann v. State, supra; Hernandez v. State, supra. Thus, even in the absence of bad faith, detention based “on a mere hunch” is illegal. There must be a reasonable suspicion by the law enforcement officer that some activity out of the ordinary is or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to crime. State v. Fortier, 113 Ariz. 332, 553 P.2d 1206, 1208 (1976); State v. Hooker, supra; Irwin v. Superior Court of Los Angeles County, 1 Cal.3d 423, 82 Cal.Rptr. 484, 462 P.2d 12 (1969). Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. Irwin v. Superior Court of Los Angeles County, supra.

In addition to the lack of reliability of the information Lt. Murphy had received, it is observed that at the time of the stop in the instant case there was no traffic violation, and Murphy did not observe any other offense being committed nor was there any evidence of suspicious criminal activity afoot. There was no suggestion of any illegality. Murphy did not know appellant or Alice Miller and had not received any information about them. He did not know Sneed except by name and did not know he was in the car until he produced identification. Although Murphy may have been acting in good faith, a detention based on a mere hunch is illegal. We hold that under the circumstances the detention here does not satisfy the above test. The detention here was just the sort of fishing expedition the Fourth Amendment and Article I, § 9 of the State Constitution, were designed to prohibit.

The State argues that even if the stop was illegal the appellant consented to the search of his car trunk and therefore the trial court did not err in overruling the motion to suppress evidence of the items found therein. The State urges that the consent to search, voluntarily made, dissipated the taint of the detention and made the fruits of the search admissible. See Potts v. State, 500 S.W.2d 523 (Tex.Cr.App.1973).

The “fruit of the poisonous tree” doctrine explained at length in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), serves to exclude as evidence not only the direct products but also the indirect products of Fourth Amendment violations. Evidence is not classified as a fruit requiring exclusion, however, merely because it would not have been discovered “but for” the primary invasion.

“Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun v. United States, 371 U.S. at 488, 83 S.Ct. at 417, 9 L.Ed.2d at 455.

When it has been established that there was an illegal seizure, the State “has the ultimate burden of persuasion to show that its evidence is untainted . . . [B]ut at the same time [the defendant] must go forward with specific evidence demonstrating taint.” Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

By consenting to a search, an individual may waive his constitutional right and dispense with the question of the legality of an arrest or detention. Cf. Potts v. State, supra.

And it has been said that consent by the defendant, if sufficiently an act of free will to purge the primary taint of the unlawful arrest or detention (Wong Sun v. United States, supra, 371 U.S. at 486, 83 S.Ct. at 416) may produce the requisite degree of “attenuation.” See State v. Fortier, 113 Ariz. 332, 553 P.2d 1206 (1976); People v. Sesslin, 68 Cal.2d 418 at 428, 67 Cal.Rptr. 409 at 416, 439 P.2d 321 at 328 (1968), cert. den., 393 U.S. 1080, 89 S.Ct. 850, 21 L.Ed.2d 772.

Before consent is deemed effective, however, the prosecution must prove by clear and convincing evidence that the consent was freely and voluntarily given, Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968); Paprskar v. State, 484 S.W.2d 731 (Tex.Cr.App.1972), and neither physically nor psychologically coerced. Potts v. State, supra; 51 Tex. Jur.2d, Part 1, Searches and Seizures, § 42, p. 722. See also Phelper v. Decker, 401 F.2d 232 (5th Cir. 1968).

The issue of whether consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Resendez v. State, 523 S.W.2d 700 (Tex.Cr.App.1975); Potts v. State, supra; United States v. Pike, 449 F.2d 191 (5th Cir. 1971); State v. Jensen, 111 Ariz. 408, 531 P.2d 531 (1975); State v. Fortier, supra.

In the instant case there was some conflict in the testimony about how the trunk of the car was opened. At the hearing on the motion to suppress Lt. Murphy, who related he was in uniform and armed at the time, stated he asked the appellant to open the car trunk and he did. He stated he had just finished arresting Willie Sneed and handcuffing him, and from his trial testimony it appears he had placed the appellant under arrest prior to his request to have the trunk opened. No warnings were given as to appellant’s right to refuse to consent. At the hearing on the motion to suppress Willie Sneed testified that after his arrest Murphy asked for the keys and opened the trunk himself. The appellant testified that Murphy handcuffed Sneed and placed Sneed in the police car and then asked for the keys, which he gave the officer as he felt he had no other choice. He related that the preceding November he had been arrested by police officers and taken on the other side of a police car and beaten up.

The fact that a person is under arrest does not, in and of itself, prevent a frée and voluntary consent from being given, Potts v. State, supra; Valerio v. State, 494 S.W.2d 892 (Tex.Cr.App.1973); Weatherly v. State, 477 S.W.2d 572 (Tex.Cr.App.1972); Brown v. State, 443 S.W.2d 261 (Tex.Cr.App.1969), and there is no requirement that a person be informed of his right to refuse to consent before the consent can be held to be free and voluntary. Schneckloth v. Bustamonte, supra; DeVoyle v. State, 471 S.W.2d 77 (Tex.Cr.App.1971). While this is true when the fact of the illegal detention is considered in the light of all other circumstances, we conclude the evidence was seized through exploitation of the illegal stop rather than “by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, supra. The State did not sustain its burden.

The State’s motion for rehearing is overruled.

DOUGLAS, Judge,

dissenting.

A full recitation of what occurred will be set out. After the ease was tried, appellant and his counsel were apparently satisfied that the officers had a right to stop the automobile because the appellate brief filed with the trial court did not raise this as a ground of error. This matter was not raised in the record or in any way when it reached the Court. Article 40.09, V.A.C. C.P., controls what matters shall be included in the record. Section 2 of the Article provides:

“Each party may file with the clerk a written designation specifying matter for inclusion in the record. The failure of the clerk to include designated matter will not be ground for complaint on appeal if the designation specifying such matter be not filed with the clerk within sixty days after notice of appeal is giv-

Appellant did not designate any of the matter that is used for reversal to be included in the record and filed no complaint to the record within sixty days after notice of appeal was given.

Section 5 of Article 40.09 provides that the court reporter shall report any portion of the proceeding requested by either party or directed by the court. This record is to be paid for by the appellant or if he is indigent it is to be paid for by the general funds of the county where the offense was alleged to have been committed.

No bill of exception was filed under Section 6(a) of Article 40.09. Section 7 provides that the court shall approve the record within fifteen days after notice of completion of the record if there is no written objection to it. In the present case there was no objection to the record.

Section 15 of Article 40.09 does not give this Court authority to order a trial court to prepare a record not designated by either party. It only gives this Court the authority to send for any original paper or exhibit for its inspection.

The trial judge was not given an opportunity to pass upon this ground of error.

In the commentary under Article 40.09, the Honorable W. A. Morrison, formerly of this Court, wrote:

“. . . [I]f a trial judge were given an opportunity to study the record of the trial over which he had presided, read briefs and hear argument on the points raised, in many cases he would recognize the fact that reversible error was in the case and that he would promptly grant a new trial and set the case down at once for retrial, thus avoiding the inherent delay occasioned by an appeal and protecting his appellate record of which so many able trial judges are justifiably proud.”

The advice given by Judge Onion in his commentary to the Article should be observed. It is as follows:

“The time limits for designating material in the record, filing the record, etc., are all set out in the article and should be carefully read.”

Judge Onion also wrote in his commentary as follows:

“This procedure allows the trial court full opportunity to examine the completed record, hear arguments and study briefs and grant a new trial to the same extent as would the appellate court. The defendant after seeing the completed record may present errors on which he intends to rely on appeal to the trial court.
“While the time between conviction and appeal will be undoubtedly lengthened in some cases, the number of cases appealed should be reduced and many unnecessary reversals eliminated.”

In Conerly v. State, 412 S.W.2d 909 (Tex.Cr.App.1967), a motion for extension of time to file a statement of facts and his affidavit of inability to pay for the same filed after the record on appeal had been approved by the court without objection and filed with the clerk came too late.

In Utsman v. State, 485 S.W.2d 573 (Tex.Cr.App.1972), the refusal of the court to grant an extension of time to file a statement of facts was not abuse of discretion where the motion for extension was filed on the last day to file statement of facts and had not been ordered at any time.

Not only was the statement of facts on motion to suppress not properly before the Court, it should never have been prepared. A member of the staff was directed, without authority of the Court, to have the trial court see that a statement of facts on the motion to suppress was filed in this Court. After the majority of the Court was advised that the additional record was here on the unauthorized request, it still considered it. Not only has the majority of the Court sanctioned the unauthorized action, it has erroneously decided the case upon the facts. It should be remembered that only unreasonable searches are forbidden.

On original submission and on motion for rehearing the majority rules that the initial stop of the car that appellant was driving was illegal. The search was made with the consent of Armstrong after the officer had cause to stop the car.

There was no objection that the original arrest and detention were illegal. In Cherry v. State, 488 S.W.2d 744 (Tex.Cr.App. 1972), cert. denied, 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199, this Court held that a ground of error and argument in its support that the “trial court erred in overruling appellant’s motion to suppress the fruits of the search of the motel room in which the events in question occurred” were not specific enough to comply with Article 40.09, Section 9, V.A.C.C.P., governing an appeal brief. It was not considered. More notice was given the trial judge in that ease than was given in the present case where no motion to suppress was mentioned in the brief.

The objection was insufficient in the present case and the record is not properly before us. But with the help of the majority acting in lieu of counsel designating a part of the record after the time has been expired, it will be assumed for the sake of argument that the question of the search is properly before us.

Approximately a week to ten days before the burglary, Lieutenant L. T. Murphy of the Fort Worth Police Department and other officers received information that Willie Arthur Sneed and a car were wanted in connection with several burglaries. A warrant had been issued for Sneed. Officer Murphy had been given the last numerals of the license plate of the car.

At about 2:30 p. m. on January 5, 1975, Officer Murphy stopped the car on the east side of Fort Worth. Appellant, the driver, after giving consent to a search, opened the trunk with his key. It contained a portable color television set, an electronic calculator, two tape players, a trumpet and other items. Appellant stated that these items belonged to him. Murphy then arrested appellant and took the items from the trunk to the city hall. Sneed, a passenger in the car, was arrested on the outstanding warrant.

At approximately 7:00 p. m. the same day, Prince Charles Ray returned to his home on the east side of Fort Worth and found that his house had been broken into and discovered that the items which had been found in the trunk of appellant’s car were missing.

The State contends that the stop of appellant’s vehicle was for proper investigatory purposes. The Fourth Amendment does not require a policeman who lacks the quantum of information necessary for probable cause to simply shrug his shoulder and allow a crime to occur or a criminal to escape. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Circumstances which are insufficient to establish probable cause for arrest may justify temporary detention for purposes of investigation since an investigation involves a lesser intrusion upon the personal security of an individual than does an arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970), cert. denied, 400 U.S. 918, 91 S.Ct. 180, 27 L.Ed.2d 158. Such purposes may include determination of the identity of a suspicious individual or momentary preservation of the status quo in order to obtain more information. Adams v. Williams, supra; Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974). We reaffirmed this principle in the recent decision of Abion v. State, 537 S.W.2d 267 (Tex.Cr.App.1976).

An occupant of an automobile is just as subject to a brief detention as is a pedestrian. Adams v. Williams, supra; Wood v. State, supra. See Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976). Of course, the officer must have specific and articula-ble facts which, in light of his experience and general knowledge, reasonably warrant such a stop. Terry v. Ohio, supra; United States v. Brignoni-Ponee, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Baity v. State, supra.

In the instant case Officer Murphy had sufficient information to warrant an investigative stop of appellant’s vehicle. He was aware of the outstanding warrant on Sneed. Knowing that Sneed might be driving a light blue 1966 Plymouth, he observed that appellant’s vehicle was a “black over blue” 1966 Plymouth. He further observed that the car recently had been painted with a spray can “like you buy in the store.” The officer also knew the last three numerals of the license plate of the wanted automobile.

Officer Murphy had seven years’ experience. In light of his experience and general knowledge, he articulated specific facts which, taken together with the rational inferences from those facts, reasonably indicated appellant’s vehicle had been involved in criminal activity. He determined that the investigative stop was necessary in order to obtain further information. The stop was justified.

In view of the legality of the initial stop, the items seized from the trunk of the vehicle were properly admitted into evidence. Upon learning of Sneed’s identity, the officer was authorized to arrest him on the outstanding warrant. Appellant denied knowing Sneed. Under these circumstances, Murphy’s request for permission to look in the trunk was reasonable. Appellant voluntarily consented to the search. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

The original opinion in this cause relied on Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974). Colston is not in point. There, two Waco officers arrested Colston for the possession of a dangerous drug. They acted solely on the strength of a teletype dispatch sent by a federal narcotics agent. The source of the federal agent’s information was never revealed, and if an informer was involved, there was no showing as to the reliability of such informer. We held that the officer who issued the dispatch had no probable cause for the arrest and an otherwise illegal arrest cannot be insulated from challenge by the decision of the arresting officer to rely on a fellow officer’s determination of probable cause.

In the case at bar, Officer Murphy did not rely solely on the information he received from the Records Bureau and other officers. Rather, he went to the Bureau and looked up Sneed’s record. The record contained information concerning the outstanding warrant on Sneed and the description of the vehicle involved in the burglaries. This information was sufficient to justify the investigative stop of the vehicle.

The majority holds that there was an illegal detention of Armstrong even though the officer had a description of the car that had been used in the burglaries and knew that there was an outstanding warrant for Sneed. He also had information that Sneed was involved in the burglaries. The crude paint job on the car after the officer first saw it added to the information which gave the officer the right to detain the car. The majority did not give the trial judge a chance to pass upon the question. The investigation by the officer was reasonable. He had a right to arrest Sneed and then had consent to search the car.

The opinion on motion for rehearing states that the officer did not have reliable information. Does an officer have to question the circumstances under which a warrant was obtained before making a stop or arrest? The opinion also states that the warrant was not in the record. How does that affect the right of the officer at the time he made the arrest?

Practically every week we hear that this Court is the busiest appellate court in the nation. With all that happened in this case a defendant would be foolish not to appeal every case, because a majority might get him a free record on something he did not desire and then reverse the case.

The reversal should be set aside and the judgment of the conviction should be affirmed.

      . On original submission from the record before us it clearly appeared that there was a serious question as to the legality of the search and there was evidence that there had been a hearing on a motion to suppress which it was concluded might shed some light on the search question which is of constitutional dimension. Fourth Amendment, United States Constitution; Article I, § 9, Texas Constitution. The judge assigned the cause requested the transcription of hearing on suppression motion from the trial court through a staff member of this court. When this matter was brought to the attention of the entire court, the majority approved the action taken in light of the original record forwarded to this court. In Guzman v. State, 521 S.W.2d 267, 272 (Tex.Cr.App.1975), this court approved the State placing material in the record almost three months after the approval of the record by the trial court and relied upon such material in affirming the conviction. In Schroeder v. State, 543 S.W.2d 382 (Tex.Cr.App.1976), the record was supplemented after the approval of the record and after the appellate briefs had been filed. This was without notice to the appellant. The conviction was affirmed. See also Ellis v. State, 543 S.W.2d 135, 137 (Tex.Cr.App.1976); Almand v. State, 536 S.W.2d 377 (Tex.Cr.App.1976). In Davis v. State, 499 S.W.2d 303 (Tex.Cr.App.1973), the cause was reversed because the court failed to make findings of fact and conclusions of law as to the voluntariness of the confession as required by Article 38.22, Vernon’s Ann.C.C.P. While the case was pending rehearing, the trial court who had lost jurisdiction of the case made such findings which had not previously been in existence and forwarded a supplemental transcript to this court. On rehearing the findings were considered, the reversal was set aside and the conviction affirmed. The supplemental material in all these cases benefited the State’s case. Judge Douglas frequently writes, “A good rule works both ways.” We find adequate precedent for consideration of the search question.

      . At the trial on the merits Murphy stated there was an outstanding warrant for Sneed, but the warrant was not otherwise described. We do not know for what offense the warrant was issued.

      . In DeVoyle v. State, supra, it was held to be good police practice to give such warnings although not required.

      . The majority has not determined who is to pay for the record. Many future appellants will raise grounds of error with no record in an effort to have a majority of this Court order it to save that cost.


author: BROWN, Commissioner. ROBERTS, Judge DALLY, Commissioner. ROBERTS, Judge

text:
    Franklin Joseph RANSONETTE, Appellant, v. The STATE of Texas, Appellee.
    No. 51550.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.
    Rehearing Denied May 3, 1977.

      Melvyn Carson Bruder and Barry P. Helft, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., W. T. West-moreland, Jr., Douglas D. Mulder and Jim Burnham, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for kidnapping for extortion under Article 1177a, Vernon’s Ann.P.C. Appellant and his brother Woodrow Ransonette were jointly tried before a jury which found them guilty and assessed punishment for each man at five thousand and five (5005) years in the Texas Department of Corrections. This Court affirmed the conviction of Woodrow Ransonette on April 30, 1975. Ransonette v. State, 522 S.W.2d 509, Appeal Dismissed, November 11,1975, 423 U.S. 941, 96 S.Ct. 350, 46 L.Ed.2d 274.

Mrs. Amanda Mayhew Dealey testified that she returned to her apartment home in Dallas shortly after 5:00 p. m. on December 19, 1972. She stated that as she got out of her car in the parking lot behind the apartment complex she was met by two men, one of whom forced her at gunpoint into the front seat of a Chevrolet station wagon. She stated that as soon as she got into the car the men placed blacked-out glasses over her eyes so that she could not see. She said that she was driven to a vacant house where she was handcuffed and blindfolded with gauze and tape. She further testified that she was released unharmed by the kidnappers during the early morning hours of December 22 after her father-in-law, Joseph M. Dealey, Sr., paid a ransom of $250,-000. She stated that she was left bound and blindfolded in tall grass near a dead-end street, but that she was able to wriggle out of her bindings and blindfold in time to see a white van with a “dark bluish stripe” leaving the scene. Mrs. Dealey positively identified Woodrow Ransonette as the man who forced her into the" car and with whom she communicated throughout her ordeal. She was unable to identify appellant as one of her abductors because of her blindfold.

Joseph M. Dealey, Sr. testified as to his contact with the kidnappers concerning the ransom demands. He stated that he notified the police and that agents of the Federal Bureau of Investigation entered into the case and that an Agent Brown later took over telephone communication with the kidnappers and eventually delivered the ransom.

Several employees of Southwestern Bell Telephone Company testified that they were involved in the tracing of phone calls originating from various exchanges in the Dallas area and terminating at the Dealey residence. It was established that most of the phone calls were originating from a group of public telephones in the area of Skillman Avenue at the intersection with Abrams Road.

Agents of the FBI testified that surveillance was set up in the Skillman Avenue area based on the information supplied by the telephone company employees. It was determined that the precise times of the kidnappers’ telephone calls coincided with the appearance at the Skillman area telephones of a white 1971 Chevrolet van with a wide purple stripe. Photographs taken by the agents depict Woodrow Ransonette in one of the telephone booths with the white van parked nearby.

One of the agents positively identified Woodrow Ransonette as the man he saw get out of the van at one of the telephone booths. He also positively identified appellant as the driver of the van and stated that appellant stood “within a foot” of his brother during one of the kidnapper’s telephone conversations with Agent Brown.

The State also introduced the testimony of a man who stated that he sold the station wagon used in the initial abduction, a 1963 Chevy II, to a man named Jerry Davis on December 19, 1972. The witness identified Woodrow Ransonette as the man who bought the car. Another witness testified that he rented a duplex to a man named Jerry Davis on December 19, 1972. This witness also identified Woodrow Ranso-nette as the man using the name of Jerry Davis. Mrs. Dealey testified that the duplex was the vacant residence where she was held captive. Another witness testified that he sold the white van to Franklin Ransonette.

The remainder of the evidence included testimony from various law enforcement officers about their involvement in the investigation of the case and circumstances surrounding the apprehension of the Ranso-nettes. It was developed that the license number on the van was traced to Franklin Ransonette. The van was found in the parking lot of a Dallas apartment house where Woodrow Ransonette resided. Officers knocked on the door of the apartment, identified themselves and were admitted. The Ransonettes were arrested, warned of their rights and searched. Woodrow executed a consent to search form and the apartment was searched. The $250,000 ransom, the blacked-out glasses and other evidence of the kidnapping were all found in the apartment. The officers testified that Woodrow made the spontaneous statement, “I told you we wasn’t getting enough money. Now we’re going to take the rap and I told you we were going to get caught.”

We note at the outset that an examination of the record filed in this Court raises serious doubts as to whether or not the grounds of error raised in the briefs filed in appellant’s behalf are properly before us under Article 40.09, Vernon’s Ann.C. C.P. It appears that appellant’s trial counsel was granted two extensions of time for filing of appellant’s brief, but when no brief was filed, the careful trial judge appointed other counsel to represent appellant on appeal. Appellant then filed a motion with the court to dismiss the newly-appointed counsel. The trial court denied the motion and a brief was filed in appellant’s behalf by the appointed counsel. We recently held that an accused has the right to represent himself both at trial and on appeal. Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976). However, it appears that appellant in his two supplemental pro se briefs has adopted the brief of his appointed counsel. We will, therefore, review all eight grounds of error raised in the three briefs.

In his first ground of error appellant contends that the trial court erred in denying his request to have the court make an in camera inspection of the prosecutor’s file to determine if it contained evidence favorable to the appellant.

A copy of the motion has been made a part of the record on appeal. It first requests the court “to permit the defense . to call the prosecuting attorney . as a witness ... to determine whether (he) has in (his) possession” any statements of witnesses who were not to be called by the State or any physical or tangible objects or other evidence which “may have any relevance to the guilt or innocence” of the appellant or which “could be in anywise construed as favorable” to appellant on the issue of guilt or punishment.

The motion then requests that “in the event . . . any of the foregoing evidence or information exists,” the court should order the State to produce such evidence for inspection. In the alternative, the motion requests the trial court to make an in camera inspection of the prosecuting attorney's entire file and to conduct an interrogation of the prosecutor “to determine if such evidence exists.” The record does not contain a transcript of the hearing on this motion and the notation of the court’s order on the copy of the motion is unclear; however, both appellant’s brief and the State’s brief state that the motion was denied.

In support of his contention that such denial was error, appellant relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Means v. State, 429 S.W.2d 490 (Tex.Cr.App.1968). The rule of law in those cases and a long line of subsequent decisions is that the suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment.

The standard to be applied in cases of suppression or nondisclosure of evidence by the State is whether the testimony may have had an effect on the outcome of the trial. Smith v. State, 516 S.W.2d 415 (Tex.Cr.App.1974). The key elements which must be shown are (a) suppression of evidence by the prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of the evidence. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972).

Appellant has satisfied none of the above requirements. His motion, in effect, admits that he knows of no material evidence favorable to his defense. Rather, he merely wishes to rummage through the State’s file to see if there is anything which may have any relevance to his guilt or innocence. We have previously held such a request too broad to be effective. Campos v. State, 468 S.W.2d 81 (Tex.Cr.App.1971); Bell v. State, 442 S.W.2d 716 (Tex.Cr.App.1969).

The United States Supreme Court most recently addressed the Brady v. Maryland rule in the case of United States v. Agurs, decided June 24, 1976, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342. There the Court noted that there was no significant difference between cases, such as the instant case, where there has been merely a general request for exculpatory matter and cases, such as Agurs in which there has been no request at all. Recognizing that there were situations where the evidence is obviously of such substantial material value to the defense that elementary fairness requires it to be disclosed even without a specific request, the Court stated that “the mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”

There is no constitutional requirement that the prosecutor must make a complete and detailed accounting to the defense of all police investigatory work on a case. Moore v. Illinois, supra. The prosecutor has not violated his constitutional duty of disclosure unless his omission is sufficiently significant to result in the denial of the defendant’s right to a fair trial. United States v. Agurs, supra. Likewise, we know of no constitutional obligation of the trial court to peruse the prosecutor’s file for exculpatory evidence in the absence of a specific request supported by some showing that such evidence exists.

Appellant’s first ground of error is overruled.

In his second ground of error appellant contends that the trial court erred in failing to charge the jury on the law of circumstantial evidence. The appellant timely presented his requested instruction on circumstantial evidence which the court denied. The court charged the jury on the law of principals and instructed them that mere presence of a party at or near the scene of the commission of an offense does not constitute one as a principal.

Although it is true that Mrs. Dealey was not able to identify appellant as one of her abductors, the evidence does reflect that appellant was arrested with his brother in the latter’s apartment only hours after the release of Mrs. Dealey. All of the instru-mentalities of the kidnapping were found in the apartment, including the ransom money which had been divided into two sums and placed in two separate pieces of luggage. There is also the incriminating statement made by Woodrow Ransonette to appellant at the time of the arrest. Even more incriminating was the positive identification of appellant as one of the two occupants of the ubiquitous white van with the purple stripe. This identification took place at one of the Skillman Avenue telephones during a conversation between the kidnappers and Agent Brown only two hours prior to Mrs. Dealey’s release. Mrs. Dealey also saw the van leave the release site.

Appellant was charged with acting together with his brother in the kidnapping of Mrs. Dealey for ransom. Arguably, there is no direct evidence of the main fact. There is no direct evidence that appellant was involved in the initial abduction. Nor is there direct evidence that he made any of the ransom calls or that he was involved in the physical restraint or detention of Mrs. Dealey. There is direct evidence that he was the owner and driver of the van associated with the kidnapping. In the absence of any other charge or instruction, it is clearly error to refuse a requested charge on circumstantial evidence. Moore v. State, 531 S.W.2d 140 (Tex.Cr.App.1976); Farris v. State, 496 S.W.2d 55 (Tex.Cr.App.1975).

The issue then is whether the charge on the law of principals adequately protected appellant’s rights in the absence of the charge on circumstantial evidence. Article 36.19, Vernon’s Ann.C.C.P.

We addressed a similar situation in Dickson v. State, 492 S.W.2d 267 (Tex.Cr.App.1973). In that case there was direct evidence of the defendant’s association with the robbers, and his presence at the scene of the crime coincided exactly with that of the robbers. Although the complaining witness could not state which of the five men who entered the store actually shot and robbed him, he testified that the defendant entered the store with the men and left with them after the money had been taken. We held that there was no error in refusing the requested instruction on circumstantial evidence. The instruction on the law of principals adequately protected the defendant’s rights.

In Morr v. State, 507 S.W.2d 551 (Tex.Cr.App.1974) there was direct evidence that a burglary had been committed by a “blonde-haired individual” who escaped. The defendant’s connection with the burglary consisted of his presence at the scene and furtive gestures. The court charged the jury on the law of principals and instructed them that mere presence is not sufficient to constitute one as a principal. We held that even if the refusal to charge on circumstantial evidence could be construed as error, no harm was shown.

The instant case, like Dickson, supra, contains direct evidence of appellant’s close association with Woodrow Ransonette. Like Morr, supra, the instant case contains evidence which places appellant at the scene of the ransom calls and in the presence of his brother, with instrumentalities of the crime, at the time of their arrest. We find that the appellant’s rights were adequately protected by the charge as given. Morr v. State, supra; Dickson v. State, supra; Helms v. State, 493 S.W.2d 227 (Tex.Cr.App.1973).

Appellant’s second ground of error is overruled.

In his third ground of error appellant contends that the trial court erred in overruling his motion to sever pursuant to Article 36.09, Vernon’s Ann.C.C.P. The same contention raised by appellant’s brother was overruled in Ransonette v. State, 522 S.W.2d 509 (Tex.Cr.App.1975). No evidence was offered in support of the motion and no error is shown in the absence of such evidence offered at the time the motion was presented and overruled. Article 36.09, Vernon’s Ann.C.C.P.; Ransonette, supra; Hawkins v. State, 509 S.W.2d 607 (Tex.Cr.App.1974); Robinson v. State, 449 S.W.2d 239 (Tex.Cr.App.1969).

Appellant’s third ground of error is overruled.

In his fourth ground of error appellant contends that during jury argument the prosecutor made an improper reference to his failure to make a statement at the time of his arrest. The argument referred to was as follows:

“ . . . She identified Woodrow Ran-sonette as the one that actually put her in the car. The other one, you know, was quite silent, and this makes sense with what Jack Barnett told you, because Franklin didn’t say a word out there at the arrest. He said Woodrow was doing all the talking. Like I said, Franklin’s been down this road before so he kept his mouth shut.”

The remarks refer to the testimony earlier in the trial given by the arresting officers that Woodrow Ransonette made an incriminating statement while Franklin said nothing. No objection was voiced at that time and no objection was raised during the prosecutor’s argument. Nothing is presented for review. Gibson v. State, 516 S.W.2d 406 (Tex.Cr.App.1974); Shumake v. State, 502 S.W.2d 758 (Tex.Cr.App.1973).

Appellant’s fourth ground of error is overruled.

In his fifth ground of error appellant’s appointed counsel on appeal contends that appellant was denied effective assistance of counsel by his retained trial counsel due to his failure to present final arguments to the jury at the punishment phase of the trial. A review of the entire record in this case demonstrates that appellant’s counsel ably represented him throughout this trial. The waiver of argument was trial strategy. Appellate counsel might have tried the case differently, but that does not show inadequate representation. Rockwood v. State, 524 S.W.2d 292 (Tex.Cr.App.1975). We find no misconduct of counsel which amounts to a breach of legal duty to faithfully represent an accused’s interests. Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976); Martin v. State, 493 S.W.2d 866 (Tex.Cr.App.1973); Farmer v. State, 491 S.W.2d 133 (Tex.Cr.App.1973).

Appellant’s fifth ground of error is overruled.

The three grounds of error set out in appellant’s supplemental pro se briefs will be designated as grounds of error six, seven, and eight. In appellant’s sixth ground he challenges the sufficiency of the evidence. Although the record in this appeal contains only the transcript of proceedings in behalf of appellant, we have thoroughly re-examined the fifteen hundred pages of testimony and exhibits in Cause No. 49,808, Ransonette v. State, supra. Viewing the evidence in the light most favorable to the State, we find that the evidence, as briefly summarized above, supports the jury’s finding of guilty.

Appellant’s sixth ground of error is overruled.

In his seventh ground of error appellant contends that the trial court erred in denying his motion for a change of venue. This contention has already been decided adversely to appellant in Ransonette v. State, supra.

In his eighth ground of error appellant contends that it was error to admit into evidence the items seized at his brother’s apartment during their arrest. Appellant’s brother consented to the search. Appellant cannot now challenge its legality. Adams v. State, 537 S.W.2d 746 (Tex.Cr.App.1976).

Appellant’s eighth ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, Judge

I dissent on the grounds there was no direct evidence adduced against the appellant herein and a request for a charge on circumstantial evidence was denied, thus depriving the appellant herein of a valuable right and sub silentio overruling 125 years of law in this State.

The majority agree that the failure to give the charge was “clearly error.” In view of the five thousand five (5005) year sentence assessed by the jury, I cannot agree that the error was harmless.

OPINION ON THE APPELLANT’S MOTION FOR REHEARING

DALLY, Commissioner.

On the appellant’s motion for rehearing we have reconsidered ground of error number two, in which it was asserted that the trial court erred in refusing to submit to the jury the appellant’s requested instruction on the law of circumstantial evidence. On original submission we held that the court’s refusal to submit the requested charge on circumstantial evidence was clearly error, but that the appellant’s rights were adequately protected because the court submitted a charge on the law of principals. A charge on the law of principals is a State’s charge; it does not protect the defendant’s rights. An instruction on the law of principals does not eliminate the necessity for an instruction on circumstantial evidence if circumstantial evidence is relied upon to establish the appellant’s guilt as a principal. McBride v. State, 486 S.W.2d 318 (Tex.Cr.App.1972); Seelies v. State, 172 Tex.Cr.R. 474, 358 S.W.2d 623 (1962). However, we now find that there was direct evidence of the appellant’s participation in the commission of the offense and that the court’s refusal to submit the requested charge on circumstantial evidence was not error.

Mrs. Dealey could not identify the appellant as the man who was with Woodrow Ransonette when she was abducted by Woodrow Ransonette and another man, but this offense was not completed when she was abducted. The offense was a continuing offense until after the ransom had been paid and Mrs. Dealey had been released. Before Mrs. Dealey was released the appellant was identified by Will H. Griffin, an FBI agent, as the driver of a van which took his brother Woodrow Ransonette to public telephone booths on two occasions. On these occasions Woodrow Ransonette had a telephone conversation with Charles T. Brown who he did not know was an FBI agent.

While Woodrow Ransonette was engaged in acts which constituted a part of the offense for which the appellant and Woodrow Ransonette were indicted, the appellant was identified as the man who was aiding and abetting his brother Woodrow Ranso-nette by taking him to the telephone booths and acting as a lookout while the calls were made. The appellant stood within one foot of Woodrow Ransonette while the telephone calls were made and there was testimony the appellant could have heard both parties to the telephone conversations. There was direct evidence of appellant’s participation in the commission of the offense.

A charge on circumstantial evidence is required only where the evidence of the main fact essential to guilt is purely and entirely circumstantial. See e. g. Wilson v. State, 154 Tex.Cr.R. 59, 225 S.W .2d 173 (1949). A charge on circumstantial evidence is necessary only when the State’s case depends entirely upon circumstances for conviction. See e. g. Nailing v. State, 152 Tex.Cr.R. 161, 211 S.W.2d 757 (1948); Wells v. State, 134 Tex.Cr.R. 412, 115 S.W.2d 658 (1938). An instruction as to circumstantial evidence need not be given where the State relies only in part on circumstantial evidence, Lawler v. State, 110 Tex.Cr.R. 460, 9 S.W.2d 259 (1927); Coleman v. State, 90 Tex.Cr.R. 297, 235 S.W. 898 (1921), even though the State relies on a chain of circumstances that may be considered the major part of the evidence on which the State relies for conviction. Dodd v. State, 149 Tex.Cr.R. 156, 192 S.W.2d 263 (1946). See 31 Tex.Jur.2d 682-683, Instructions, Sec. 123; Morris v. State, 402 S.W.2d 161 (Tex.Cr.App.1966); Russell v. State, 396 S.W .2d 117 (Tex.Cr.App.1965).

Whether the appellant knew what his brother was doing when he made the telephone calls and whether the appellant had the required intent to make his acts in aiding and abetting his brother, criminal acts are matters which need not be shown by direct evidence but may be shown by circumstantial evidence. Davis v. State, 516 S.W.2d 157 (Tex.Cr.App.1974); Barber v. State, 462 S.W.2d 33 (Tex.Cr.App.1971); Schwartz v. State, 172 Tex.Cr.R. 326, 357 S.W.2d 393 (1962).

In Blankenship v. State, 481 S.W.2d 147 (Tex.Cr.App.1972) the main authority relied upon by the appellant, no one could positively identify Blankenship as the man in the car near the scene of the robbery. In this case Agent Griffin identified the appellant as the man aiding and abetting his brother during the time the offense was being committed.

The appellant’s motion for rehearing is denied.

Opinion approved by the Court.

ROBERTS, Judge

(dissenting).

I agree with the majority opinion on rehearing in several respects. First, I enthusiastically endorse the majority’s holding that a charge on the law of principals is a State’s charge and does not protect a defendant’s rights. This is because a charge on principals makes it easier for the State to convict. It follows, as the majority recognizes, that a trial court may not substitute a charge on principals — or parties, under the new Penal Code — when a charge on circumstantial evidence is mandated.

I also agree with the statements of the majority that:

“A charge on circumstantial evidence is necessary only when the State’s case depends entirely upon circumstances for conviction. See e. g. Nailing v. State, 152 Tex.Cr.R. 161, 211 S.W.2d 757 (1948); Wells v. State, 134 Tex.Cr.R. 412, 115 S.W.2d 658 (1938). An instruction as to circumstantial evidence need not be given where the State relies only in part on circumstantial evidence. Lawler v. State, 110 Tex.Cr.R. 460, 9 S.W.2d 259 (1927); Coleman v. State, 90 Tex.Cr.R. 297, 235 S.W. 898 (1921), even though the State relies on a chain of circumstances that may be considered the major part of the evidence on which the State relies for conviction. Dodd v. State, 149 Tex.Cr.R. 156, 192 S.W.2d 263 (1946). ...” Ante, at 43.

However, the majority’s statement of these rules is somewhat ambiguous. What the authorities relied upon hold is that where there is both direct and circumstantial evidence of the main fact to be proved, no circumstantial evidence charge is required. See Dodd, supra, 192 S.W.2d at 264. The majority opinion should not be read as holding that no circumstantial evidence charge is required where one aspect of the main fact is proved by direct evidence and another by circumstantial evidence; in such a case a circumstantial evidence charge is required. See Coleman, supra, 235 S.W. at 901.

What I cannot agree with is the majority’s application of these rules of law to the facts of this case. I believe that a circumstantial evidence charge was required and the failure to submit such a charge was reversible error.

The majority relies in part on the testimony of Charles Brown, an FBI agent, who identified the voice of appellant’s co-defendant as the voice of the person who made the kidnap demands over the telephone. As the majority held in Mclnturf v. State, 544 S.W.2d 417 (Tex.Cr.App.1976), this was direct evidence of the co-defendant’s participation in the offense. However, it is not direct evidence of the appellant’s guilt; it is merely evidence of a secondary fact from which appellant’s guilt may be inferred. Anderson v. State, 85 Tex.Cr.R. 411, 213 S.W. 639 (1919); Burleson v. State, 132 Tex.Cr.R. 2, 101 S.W.2d 1020 (1936), followed in McCormick v. State, 168 Tex.Cr.R. 489, 329 S.W.2d 436 (1959), and cited with approval in Blankenship v. State, 481 S.W.2d 147 (Tex.Cr.App.1972).

The majority also relies upon appellant’s presence near the phone booth at the time appellant’s co-defendant made the calls to Brown and on the fact that appellant drove his co-defendant to and from public phone booths. However, under our previous holdings, this kind of evidence is also purely circumstantial.

Thus, in Anderson v. State, supra, a murder case in which the fatal shot was fired by the defendant’s son, the evidence was that the defendant had quarreled with the deceased the day before the killing occurred. The next day the quarreling continued, with the deceased and his brother on one side and the defendant and his son on the other. Later that day the deceased and his brother stopped their buggy on the side of the road and were getting out of the buggy when the defendant and his son approached in their car. The defendant was driving; as the car passed within four or five feet of the buggy, the defendant’s son fired the fatal shot.

In reversing because of the trial court’s failure to give a charge on circumstantial evidence, the Anderson Court held that it is “well established that, when the actual killing is done by another, the mere presence of the accused does not deprive him of the privilege of having his criminal connection with the offense determined by the rule of circumstantial evidence.” Anderson v. State, supra, 213 S.W. at 640. The Court observed that a charge on principals had been given. Id., at 640. The Court also recognized, but found inapplicable, the rule that

“ ‘Where the facts proven are in such close relation to the main fact as to make them equivalent to direct testimony, a charge on circumstantial evidence is unnecessary.’ ” Id., at 641.

See also Tipton v. State, 95 Tex.Cr.R. 205, 253 S.W. 301 (1923).

The rule in Anderson was followed in Burleson v. State, supra, a robbery case. In that case the defendant and one Jordan agreed to deliver to the complainant two hundred dollars’ worth of counterfeit money in exchange for sixty-five dollars. On the day of the robbery the complainant agreed with the defendant that the complainant would give Jordan the sixty-five dollars that night even though the defendant and Jordan would not be able to deliver the counterfeit money until the following day. The defendant left the complainant, and shortly thereafter Jordan came alone to the complainant’s room and robbed him of the sixty-five dollars at gunpoint.

The complainant followed Jordan as he left the room. Jordan got into an automobile with the defendant and the two men drove away together. The Court held that the State’s ease was “manifestly” reliant upon circumstantial evidence and reversed because of the trial court’s failure to charge on circumstantial evidence. See also Burrell v. State, 18 Tex. 713 (1857); Ellsworth v. State, 92 Tex.Cr.R. 334, 244 S.W. 147 (1922); Denny v. State, 473 S.W.2d 503 (Tex.Cr.App.1971).

Similarly, in the case before us the evidence against this appellant is manifestly circumstantial. It must be remembered that direct evidence is that which directly demonstrates the main fact to be proved, while circumstantial evidence is direct proof of a secondary fact which, by logical inference, demonstrates the main fact. Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973).

In this case the main fact to be proved is that appellant was a principal offender. There is direct proof that appellant’s co-defendant committed the offense. There is also direct evidence that the appellant was present near the co-defendant during part of the time that the offense was being committed. And there is direct evidence that appellant was driving the motor vehicle which helped convey the co-defendant during the commission of the offense.

But these are clearly like the facts in Anderson and Burleson : minor, or secondary, facts from which an inference must be drawn. None of these facts, either separately or taken together, directly prove that appellant was guilty as a principal.

Therefore, a circumstantial evidence charge should have been given. The failure to do so was reversible error.

      . I would hold that this is not even direct evidence of the co-defendant’s guilt. See the dissenting opinion in Melnturf v. State, 544 S.W.2d at 420. However, a majority of this Court held otherwise in Melnturf, and I will concede that holding for the purposes of this discussion.