author: GREEN, Commissioner. DOUGLAS, Judge,

text:
    Fred K. NEWBERRY, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 51860.
    Court of Criminal Appeals of Texas.
    June 14, 1977.
    Rehearing Denied July 6, 1977.
    Tom S. McCorkle, Dallas, for appellant.
    Henry Wade, Dist. Atty., Donald H. Fla-nary, Jr., John R. Roach and Jan E. Potts, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of the misdemeanor offense of driving while intoxicated. Punishment was assessed at a fine of fifty dollars and three days in county jail, probated.

In his first five grounds of error, appellant complains of the introduction in evidence, over objection, of oral statements made by him in response to questions by the arresting officer while he was allegedly under arrest. He contends that the evidence was admitted in violation of his constitutional right to remain silent.

In his sixth ground, appellant makes the same complaint concerning the admission over objection of additional oral statements made by him in response to questions by the officer who, after his arrest, was taking him to the police station.

Sergeant Doyle Bice of the Dallas Police Department testified that shortly after midnight February 19, 1974, while he was travelling in a police car north on Lemmon Avenue in Dallas, he noticed appellant’s car going south without lights. He saw appellant make an illegal right hand turn off of Lemmon Avenue onto Douglas Street, a one-way street for east bound traffic. Appellant then drove his car a short distance in a westerly direction on Douglas. Bice turned in behind appellant’s car, and turned on his red lights, stopping the other car approximately two car lengths from the next intersection. Bice then got out of the police ear, went to the other car, and asked appellant for his driver’s license, and asked him to get out of his car. Appellant had difficulty in getting out of the car, and also in finding his license. Bice told appellant that the reason he stopped him was that he “didn’t have his lights on . and he

turned the wrong way on a one-way street.” In the meantime, Officer George arrived on the scene, got out of his police car “and came up to where we were standing there talking.”

At this stage of Bice’s testimony on direct examination, the following proceedings occurred:

“Q Did you have occasion out there to ask the Defendant if he had been drinking?
“A Yes, sir, I did.
“Q Did he reply to that question?
“MR. McCORKLE [Defense Counsel]: Your Honor, I object at this time on the grounds that the Defendant was under arrest, and I would like to have a hearing outside the presence of the jury to take up this matter of law.
“THE COURT: Well, I overrule the request to remove the jury. I sustain the objection unless the State establishes the minute and location of where you are asking him about so I can rule on it.
“MR. McCORKLE: Your Honor, may we have this done outside the presence of the jury?
“THE COURT: No, you may not.
“MR. McCORKLE: Note our exception.
“THE COURT: He cannot answer what statement was made until I establish when it was made and then I am going to rule.
“MR. ROACH CONTINUING:
“Q Sergeant Bice, out there at the scene where you stopped the Defendant Fred Newberry, did you have an occasion to ask him if he had been drinking? “THE COURT: Wait a minute, don’t ask him that until you establish how many minutes it was that you are asking that this took place after that time when he first stopped him and that location where he stopped him so I can rule on it.
“MR. ROACH CONTINUING:
“Q Sergeant Bice, did you have any conversation with the Defendant Fred Newberry out there at the scene where you stopped him?
“A Yes, I did.
“Q How soon after you stopped him did you begin having this conversation with him?
“A It was a matter of seconds and I started talking to him first.
“Q And as a part of that conversation did you ask him if he had been drinking?
“A Yes.
“Q And at that time in response to that question did he reply to that?
“MR. McCORKLE: Your Honor, that is what I object to without a hearing out of the presence of the jury.
“THE COURT: I overrule the objection, you may answer the question.
“MR. McCORKLE: Your Honor, I would like to submit that we have the right to have a hearing outside the presence of the jury under Article 38.22 under the rules of Texas Criminal Procedure.
“THE COURT: I overrule that objection and state that you do not, it is a matter for the Court to determine whether it is a res gestae statement or not. The Court rules that it is res gestae, and therefore is not covered by the statutes of Texas.
“MR. McCORKLE: Your Honor, I would like to submit that it is not res gestae.
“THE COURT: I understand that and you are arguing with the Court, and I don’t want to have any argument about it, I have ruled and it is in the record. Now, be seated, please.
“MR. McCORKLE: Your Honor, that is why I wanted to take it up out of the presence of the jury. Could we have a conference in Chambers?
“THE COURT: No, sir.
“MR. McCORKLE: Note our exception for the record, please.
“THE COURT: Read the question back and answer the question.
“(The question was read to the witness.)
“MR. McCORKLE: Your Honor, just for the record I would like to restate my grounds.
“THE COURT: You don’t have to restate your grounds, that is exactly the reason I had the Court Reporter read it back. If he had asked the question again, then you would have had to restate them. The Court Reporter has read it back and I have already ruled, we have went over it and I don’t want to have any more objection on that point. Answer that question.
“THE WITNESS: I am not sure—
“THE COURT: Read the question back to him one more time.
“(The question was read to the witness.)
“THE WITNESS: Yes, he did.
'MR. ROACH CONTINUING:
‘Q And what did he say in response to that question?
‘A He said, ‘He had a couple of drinks’.
‘Q At the same time did you have occasion to ask him, ‘What he had been drinking’?
‘A Yes.
“MR. McCORKLE: I object again on the same grounds, a violation of the Miranda ruling.
“THE COURT: And I overrule those objections, you may answer the questions.
‘MR. ROACH CONTINUING:
‘Q Did he reply to your question?
‘A Yes, he did.
‘Q What was his answer?
‘A ‘Scotch’.
‘Q Did you have an occasion that same time to ask him, ‘How much he had been drinking’?
“MR. McCORKLE: I object again, Your Honor, on the same grounds.
“THE COURT: Overruled, answer the question.
“THE WITNESS: Yes, I did.
‘MR. ROACH CONTINUING:
‘Q What was his reply to that question?
‘A How much he had been drinking?
‘Q Yes.
‘A He said, ‘It was two drinks’.
‘Q Did you have an occasion at that same time as a part of that same conversation there at the scene to ask him, ‘What he had been doing prior to the time you stopped him’?
‘A Yes, I did.
‘Q And did he reply to that question?
‘A Yes.
“MR. McCORKLE: Objection, Your Honor, same grounds, a violation of Miranda.
“THE COURT: Overruled, answer it. “THE WITNESS: Yes, he did, and he stated he had been, ‘Honky-tonking’.
“MR. ROACH CONTINUING:
“Q Are you certain those are the words he used?
“A Yes.
“Q Did you have an occasion to ask him, ‘Where he had been honky-tonking’?
“A Yes, sir.
“Q Did he reply to that question?
“MR. McCORKLE: Objection, Your Honor, same grounds.
“THE COURT: Overruled, if it is a part of the same conversation right there within a few minutes after the arrest at the scene of the arrest. “THE WITNESS: All connected. “THE COURT: You may answer it. “THE WITNESS: He stated that he had been, ‘To the Lemon Twist Club’.
“Q All right, sir. Did you have an occasion then to tell the Defendant he was under arrest?
“A Yes, I did.
“Q Did you tell him what for?
“A Yes, sir.
“Q And what or how did you tell him?
“A I told him — well, I had already explained to him why I stopped him. I also told him or I formerly told him that he was under arrest for those two charges, and that he was also under arrest for driving while intoxicated.”
Officer Bice testified additionally:
“Q Now, had Mr. Newberry handed you his driver’s license and then taken it back out of your hand and got into his car as though to leave, would you have allowed him to leave?
“A No, sir, not at that time.
“Q Okay. He was in your custody at that time, is that correct?
“A Right.
* * * ‡ sfc *
“Q And at the time he handed you his driver’s license, you would not have let him leave, is that correct?
“A Well, I wouldn’t have let him leave.
“Q He wasn’t free to go?
“A From the time I got him stopped I wouldn’t have let him leave.”

Bice testified that after the above conversation appellant was handcuffed and placed in Officer George’s car. During George’s direct examination as a State’s witness, the following occurred:

“Q Did you have an occasion to talk to the Defendant at the scene?
“A Yes, I did.
“Q Still in your squad car?
“A Yes, it was.
“Q Prior to the time you left?
“A Yes, it was.
* * * * * *
“Q Did the Defendant at any time ever tell you out there at the scene where he had been prior to the time he was stopped?
“A Prior to the time he was stopped by Sergeant Bice?
“Q Yes.
“A Yes, he did.
“Q What did he tell you?
“MR. McCORKLE: Objection, Your Honor, on the same grounds and I would request a hearing outside the presence of the jury.
“THE COURT: I Overrule your objection and I deny your request. Answer it.
“THE WITNESS: He stated he had been having marital problems and that he decided to, ‘Tie one on’, and that he had, ‘Been out honky-tonking at the Lemon Twist Club’.”

In Ancira v. State, 516 S.W.2d 924, in reversing the judgment due to the failure of the trial court to suppress evidence acquired as the result of custodial interrogation of defendant without Miranda warnings being given, this Court said:

“In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the United States Supreme Court held that evidence obtained as the result of a custodial interrogation was inadmissible unless the State proved that proper warnings were given to the defendant and an affirmative waiver of rights was shown. See Art. 38.22, V.A.C.C.P. Custodial interrogation was defined in Miranda as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’
‡ ⅜ ⅜ ⅝ ⅝ ⅜
“It is not necessary that an accused be under formal arrest prior to the interrogation for Miranda rights to arise. Windsor v. United States, 389 F.2d 530 (5th Cir. 1968). In Windsor, it was held that Miranda rights had arisen, and the Court said, ‘The Government agents’ testimony that Windsor was not a suspect and not under arrest when questioned in his motel room is belied by the facts of the case. . . . Windsor was definitely the central figure in their investigation . . . .’
“In Brown v. State, supra, and Jones v. State, Tex.Cr.App., 442 S.W.2d 698, where this Court held that Miranda rights had not arisen, it was noted that the investigation had not begun to focus on the accused. In United States v. Phelps, 443 F.2d 246 (5th Cir., 1971), the significance of whether or not the focus of the investigation had finally centered on the defendant was discussed:
“ ‘. . . [W]e have noted several significant factors which should be considered in determining whether or not a defendant is in custody. For example, probable cause to arrest, subjective intent of the police, focus of the investigation and subjective belief of the defendant have all been deemed relevant. United States v. Montos, supra [421 F.2d 215, 5th Cir. 1970]. However, throughout the decisions one of these factors has consistently impressed our court: whether or not the focus of the investigation has finally centered on the defendant. In Miranda itself the Supreme Court explained that “in custody” was a shorthand phrase for what Escobedo v. Illinois, 1964, 378 U.S. 478, 490, 84 S.Ct. 1758, 12 L.Ed.2d 977, described as an investigation which has focused on an accused. . . ’ ”
See, also, Alberti v. Estelle, 524 F.2d 1265 (5th Cir. 1975).

In the instant ease there clearly was probable cause to arrest appellant for the traffic violations. Further, Officer Bice testified that prior to the conversation he had formed the opinion from the manner in which appellant was driving and from appellant’s difficulty in getting from his car and in finding his driver’s license, and from the strong odor of alcohol in the car and emanating from appellant that he had a case of an intoxicated driver. Bice testified that he considered appellant to be in custody, and would not have let him leave. Clearly, prior to and during the above conversation, the investigation, under the circumstances shown, had begun to focus upon the appellant, and he had been placed in restraint. See Aneira, supra, and cases there cited. No Miranda warnings were given appellant prior to his being questioned by Officer Bice. Clearly the answers of appellant to Bice’s questions were incul-patory, and tended to incriminate him.

The circumstances here presented distinguish this case from a general investigation into an unsolved crime (see Brown v. State, Tex.Cr.App., 475 S.W.2d 938, and cases there cited) as well as cases upholding the admissibility of statements made during a general on-the-scene investigatory process. See dissenting opinion of Presiding Judge Onion in Harper v. State, Tex.Cr.App., 533 S.W.2d 776, and cases there cited. Cf. Graham v. State, Tex.Cr.App., 486 S.W.2d 92.

We conclude that the admission over objection of the evidence of Bice’s questions to appellant and appellant’s inculpatory answers, under the circumstances, violated the requirements of Miranda, supra, and violated appellant’s constitutional rights. See Ancira v. State, supra, and authorities there cited.

Furthermore, the trial court erred in holding that the conversation between Officer Bice and appellant was admissible as res gestae. We quote as follows from Smith v. State, Tex.Cr.App., 507 S.W.2d 779, 781:

“Additionally, in response to the dissenting opinions, we note that, even if Miranda were not at issue, the challenged statement was not res gestae of the arrest. The closeness in time to an arrest is not alone sufficient to render a statement res gestae thereof. If this were so, there would be no need to give Miranda warnings until booking at the station house, and thorough interrogation immediately upon arrest without warnings would be the most likely occasion to obtain admissable oral statements. But answers to interrogation following upon the heels of an arrest are not sufficient to constitute res gestae. ‘The statement must be the natural and spontaneous outgrowth of the main fact,’ Hamilton v. State, 138 Tex.Cr.R. 205, 135 S.W.2d 476. But in this case the statement simply was not spontaneous, nor even an unreasponsive (sic) answer to a nonincriminatory type of question.”

The evidence of the conversation in question while appellant was in restraint was not admissible as res gestae either of the offense or of the arrest.

The State relied for conviction upon the testimony of Officers Bice and George. No other State witnesses testified. Appellant testified, admitting that during the evening preceding his arrest he had two weak mixed drinks, but denied that he was intoxicated, and also denied making the remarks attributed to him by the officers. We do not find that the inadmissible evidence hereinabove set forth was harmless beyond a reasonable doubt.

As to the testimony of the conversation between Officer George and appellant, the record reflects that it was made while appellant was handcuffed in George’s car.

The State contends that error, if any, was not preserved because of the generality of the objection: “Objection, Your Honor, on the same grounds . . .” Clearly, in the context made, this referred back to appellant’s objections to the admission of the conversation between appellant and Officer Bice, and was sufficient, under the circumstances presented, to preserve his objection that appellant was under arrest at the time the conversation occurred.

The court reversibly erred in admitting the above testimony in evidence.

It is not necessary that we determine other contentions of error raised in appellant’s brief. However, we find that the trial court should have granted appellant’s repeated requests that a hearing be had in the absence of the jury to determine the admissibility of the statements of appellant. See Art. 38.22, Sec. 2, V.A.C.C.P.; Reed v. State, Tex.Cr.App., 518 S.W.2d 817.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

DOUGLAS, Judge,

dissenting.

The majority reverses the conviction for the misdemeanor offense of driving while intoxicated because the trial court admitted into evidence certain statements he made following his arrest. The trial court admitted the statements as res gestae of the arrest.

In determining whether statements are admissible as res gestae, each case must be considered on its own merits. Harryman v. State, 522 S.W.2d 512 (Tex.Cr.App.1975); Patterson v. State, 458 S.W.2d 658 (Tex.Cr.App.1970).

In Jones v. State, 458 S.W.2d 654 (Tex.Cr.App.1970), this Court, in part, held:

“If a statement is admissible as res gestae the fact that it is made in response to an inquiry, or while under arrest does not render the testimony inadmissible. Spann, supra [Spann v. State, Tex.Cr.App., 448 S.W.2d 128]; Fowler v. State, 162 Tex.Cr.R. 513, 287 S.W.2d 665; Heath v. State, Tex.Cr.App., 375 S.W.2d 909.”

This Court has held innumerable times that statements which are part of the res gestae are admissible notwithstanding the fact that they may not be admissible as confessions or admissions, for the rule of res gestae is independent of, superior to, and cannot be limited by the rules relating to confessions or admissions. Miles v. State, 488 S.W.2d 790 (Tex.Cr.App.1973); Jones v. State, supra.

The evidence before us shows that shortly after midnight on February 19, 1974, Sergeant Doyle Bice of the Dallas Police Department observed appellant driving his automobile southbound on Lemmon Avenue in Dallas without lights. He saw appellant make an illegal right-hand turn to the west off of Lemmon Avenue onto Douglas Street, a one-way street for eastbound traffic. Bice stopped him only a couple of car lengths short of the next intersection. Bice got out of his patrol car and approached appellant who rolled down his window. Bice asked him for his driver’s license. He seemed to have trouble finding his license so Bice asked him to step outside the car. When he seemed to have difficulty getting out, Bice held the door open for him. Once out of the vehicle Newberry was leaning against the car; he found his driver’s license in his billfold. Bice assisted him by shining a flashlight on the billfold so he could see. Bice stated that he smelled a strong smell of alcoholic beverages both when Newberry was in the car and after he was standing outside. When Bice told him he had stopped him because he had been driving without lights and had turned the wrong way on a one-way street, Newberry responded: “I didn’t know,” or “I don’t know,” or something to that effect. His speech was slurred and he appeared to be confused. Over objection, Bice was permitted to testify that in response to his inquiry of Newberry if he had been drinking, he replied: “He had a couple of drinks . Scotch”, and he insisted that he had had only two drinks. Also over objection, Bice stated that appellant told him that prior to the time he was stopped he had been “honky-tonking” at the Lemon Twist Club. The statements were made within seconds after he stopped appellant. During the entire conversation, appellant’s speech was slurred, he seemed confused and unable to understand Bice’s questions. Bice arrested him for driving while intoxicated and the two traffic offenses.

Officer George who came on the scene while Bice was talking to Newberry also related that appellant’s speech was slurred and he appeared to be confused. He testified that he and Bice assisted appellant to his patrol car and that appellant swayed when he walked. Once in the patrol car and while waiting the arrival of another officer to drive appellant’s car, George detected a moderate smell of alcoholic beverage about Newberry. He further stated that Newberry told him he was having marital problems and had decided to “tie one on,” so he had “been out honky-tonking at the Lemon Twist Club.”

The court ruled correctly. The statements made by appellant were res gestae of both the offense and of the arrest, hence a warning in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Article 38.22, V.A.C.C.P., was not required. Goodney v. State, 501 S.W.2d 311 (Tex.Cr.App.1973). See also Parsley v. State, 453 S.W.2d 475 (Tex.Cr.App.1970).

Even if the testimony could not be considered res gestae, it has long been the rule that if the same evidence is admitted elsewhere in the trial without objection, then any error in its admission is waived. Watson v. State, 532 S.W.2d 619 (Tex.Cr.App.1976); Davis v. State, 516 S.W.2d 157 (Tex.Cr.App.1974).

The evidence presented by the appellant was his own testimony. He admitted that on the evening in question he was involved in marital problems and that he had in fact been to the Lemon Twist Club where he had two drinks. He stated that before going to the Lemon Twist Club he had dinner at the Sailmaker Restaurant having only a glass of wine with his meal. Before leaving the Sailmaker he stopped in the bar to visit friends but did not have a drink with them.

He further stated that shortly after he turned onto Douglas he saw that he was going the wrong way and was pulling over to turn around when Bice came up behind him. Newberry then said that he got out of his car and walked to the rear where he met Bice and asked him to shine his flashlight on his billfold so he could see to find his driver’s license in reply to Bice’s request. He testified that “Officer George walked up and said, ‘Book him. He’s a DWI.’ ” Newberry denied having any further conversation with Bice after George walked up. He related that he then got into George’s patrol car without assistance. Once in the patrol car he said that he struck up a general conversation with George and asked him “. . . how he liked being on the police force and how long he had been there, if he was married. And he asked me if I was married.” Newberry said that he replied, “Yes, I’m married. But I’m in the process of a divorce.” He specifically denied telling George that he was “. despondent over marital problems and were going to tie one on.” Although Bice had testified that he had gone down to the station to book appellant, Newberry testified that he never saw Bice again after they left the scene of his arrest and that he was able to walk the entire time without assistance or swaying.

Appellant testified to basically the same statements as the officers were allowed to testify that he had made. The error, if any, in admitting the statements was rendered harmless. Davis v. State, 516 S.W.2d 157 (Tex.Cr.App.1974); see also Parsley v. State, supra, (concurring opinion by Presiding Judge Onion).

No reversible error having been shown, the judgment should be affirmed.

      . 475 S.W.2d 938.

      . In Harper, this Court unanimously held that the admission in evidence of a statement made by the defendant to the officer who had stopped him under circumstances similar to the instant case violated defendant’s Fifth and Fourteenth Constitutional rights, but a majority held its admission to have been harmless error. In a concurring opinion, Judge Roberts and Judge Odom based their finding of harmless error on the statement not being inculpato-ry. Presiding Judge Onion agreed that error was committed, and dissented to the finding that the error was harmless.


source: Caselaw Access Project

author: ODOM, Judge. DOUGLAS, Judge,

license: Public Domain

text:
    Harold HENDERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 52566.
    Court of Criminal Appeals of Texas.
    June 14, 1977.
    Rehearing Denied July 6, 1977.

      Ronald E. Walker, Jr., Amarillo, for appellant.
    Tom A. Curtis, Dist. Atty., Bruce P. Sa-dler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

By per curiam opinion this appeal was dismissed because of an untimely sentence. The statutory requirements have now been properly followed and we reinstate this appeal.

Appellant was convicted by a jury for burglary of a habitation. The punishment, enhanced under V.T.C.A., Penal Code Sec. 12.42(b), was assessed by the jury at thirty years’ imprisonment.

In a ground of error appellant asserts:

“The trial court erred in allowing the use of a prior conviction for enhancement at the punishment stage, said prior conviction being set out in paragraph 2 of the indictment, Cause No. 13,340, in the 47th District Court, Potter County, Texas, because the sentence in said Cause No. 13,340 was itself enhanced with a prior invalid conviction, said being Cause No. 11,078, 47th District Court, Potter County, Texas.”

The record reflects that in 1961 appellant pled guilty to burglary in Cause No. 11,078 and was placed on probation. Subsequently probation was revoked, but appellant was at that time not represented by counsel, had not waived his right to counsel, and was indigent. This conviction was alleged in the third paragraph of the indictment.

In 1967 appellant was found guilty of burglary in Cause No. 13,340. Punishment was enhanced under Art. 62, V.A.P.C. (1925), on allegation and proof of the 1961 conviction in Cause No. 11,078. This conviction was alleged in the second paragraph of the indictment.

Prior to trial appellant filed a motion to strike paragraphs 2 and 3 of the indictment, alleging the 1961 conviction was void for denial of his right to counsel at the revocation of probation, and that the 1967 conviction was enhanced on the 1961 conviction. The court conducted a hearing on the motion and received evidence supporting its finding that appellant’s right to counsel was violated at the revocation hearing in the 1961 case. Also, the State at that hearing conceded that the 1961 conviction “was probably void since he did not have an attorney at his revocation.” The court granted the motion to strike the 1961 conviction, but denied the motion to strike the 1967 conviction. The 1967 conviction was used to enhance the instant conviction.

In support of his challenge to the 1967 conviction, appellant cites Ex parte Herrera, Tex.Cr.App., 493 S.W.2d 809. In that case the petitioner challenged a 1969 conviction that was enhanced under Art. 63, V.A. P.C. (1925). It was shown one of the two prior convictions relied on for enhancement was void for denial of the right to counsel at the revocation of probation. The conviction was set aside with citation of numerous eases.

In Ex parte Langston, Tex.Cr.App., 511 S.W.2d 936, the Court entertained a challenge on these grounds to a 1958 conviction. We held that:

“Although petitioner is no longer being confined under this Hunt County conviction [1958] due to his subsequent discharge of his sentence, the writ is granted for the purpose of securing him against further legal consequences arising from the void conviction.”

Smith v. State, Tex.Cr.App., 486 S.W.2d 374, was a direct appeal from a conviction enhanced under Art. 63, supra. While that case was pending on appeal, the defendant filed a habeas corpus attack on one of the prior convictions used for enhancement, alleging a denial of counsel at the revocation of probation in. that prior case. The convicting court held a hearing on the habe-as application and found the petitioner-defendant was entitled to relief. The record with evidence supporting that finding was forwarded to this Court. There we stated:

“Ordinarily, we do not consider habeas corpus matters attacking a prior conviction while the case involving such cause is on appeal. Judge Anderson conducted the hearing during the pendency of the appeal and found that relief should be granted. Under the circumstances of this case, we have concluded that it would be a useless thing to require a separate proceeding after the appeal has become final.”

Upon consideration of Ex parte Herrera and Ex parte Langston, both supra, and the facts in the record before us, it appears that appellant could successfully challenge the 1967 conviction by habeas corpus. We also conclude, as we did in Smith v. State, supra, “[I]t would be a useless thing to require a separate proceeding after the appeal has become final,” for the purpose of attacking the 1967 conviction, and then the instant conviction. The use of the 1961 conviction to enhance the 1967 conviction leads to the same conclusion reached in Ex parte Allen, Tex.Cr.App., 452 S.W.2d 472: “No part of the [1967] conviction can stand because of lack of counsel in one of the prior convictions.” See also Ex parte McDonald, Tex.Cr.App., 469 S.W.2d 173.

On the foregoing authorities, we declare the convictions in Cause Nos. 11,078 and 13,340, in the 47th District Court of Potter County, each styled The State of Texas vs. Harold David Lee Henderson, to be void.

Because the instant conviction was enhanced in trial before a jury by use of the void 1967 conviction in Cause No. 13,340, we must reverse the judgment of conviction and remand the cause on the primary charge only.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

The majority reverses this cause even though a valid prior conviction was used for enhancement. Such conviction has not been set aside. It has not been attacked except by a contention that a void prior conviction was used to enhance it.

The 1961 conviction for burglary is bad because probation was revoked when he was indigent, did not have counsel and did not waive counsel. However, this does not destroy the 1967 conviction for burglary in Cause No. 13,340 of the 47th Judicial District of Potter County which was the conviction used for enhancement of the present case.

The 1961 conviction was not used for enhancement in the present case. It was stricken. The only remaining paragraph for enhancement was the 1967 conviction. It has not been used for enhancement in any other case and there is no reason that it cannot be used in the present cause. This is not like the case where one receives probation and the revocation is void. He had counsel and the 1967 conviction was final.

The cases cited by the majority are not in point. They are not even close.

Apparently the majority is adopting a new rule. If a prior conviction has been used for enhancement and a later decision causes it to be void, then the 'majority will prevent the use of another prior conviction even though it is valid.

This conviction should not be reversed.


author: BROWN, Commissioner.

text:
    Cecil Ray DICKEY, Appellant, v. The STATE of Texas, Appellee.
    No. 54568.
    Court of Criminal Appeals of Texas.
    June 14, 1977.
    Rehearing Denied July 6, 1977.
    Rudolph E. Gaulke, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Hogan S. Stripling, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from an order revoking probation. Appellant was originally convicted of the offense of robbery by assault under the provisions of the former Penal Code, Article 1408, Vernon’s Ann.P.C. Punishment was assessed at eight (8) years in the Texas Department of Corrections. Imposition of sentence was suspended and on February 22, 1974 appellant was placed on probation for a period of eight (8) years.

Among the terms and conditions of probation was that appellant should commit no offense against the laws of this State or any other state or of the United States. On December 30, 1975 the State filed an amended motion to revoke probation alleging that appellant committed the offense of public intoxication. After a hearing on the State’s amended motion the trial court found that appellant had violated the terms and conditions of his probation by committing the offense of public intoxication on or about November 28, 1975. Appellant’s probation was revoked and he was sentenced to eight (8) years in the Texas Department of Corrections.

In his first ground of error appellant contends that the trial court abused its discretion in revoking probation because the evidence was insufficient to show that appellant committed the offense of public intoxication.

The record reflects that appellant was found asleep with a companion in a car parked in front of a lounge in Houston at 2:30 a. m. The arresting officer testified that he removed appellant from the car and “found him to be intoxicated” and “found essence of alcohol on his body.” He further stated that, based on his experience as a police officer and having arrested many persons who were found to be intoxicated, it was his opinion that appellant was “very intoxicated” and that his companion was also intoxicated. The officer also stated that appellant’s speech was slurred and he was “wobbling” when he walked.

V.T.C.A. Penal Code, Section 42.08, provides:

“(a) An individual commits an offense if he appears in a public place under the influence of alcohol or any other substance, to the degree that he may endanger himself or another.”

Appellant contends that the evidence is insufficient to show that he was a danger to himself or anyone else.

In Balli v. State, 530 S.W.2d 123 (Tex.Cr.App.1975) the evidence showed that the accused was in a state of intoxication as he walked down the middle of a public street after dark in the city of Plainview, although the street was vacant. We held this evidence sufficient to show a violation of Section 42.08, supra.

In Bentley v. State, 535 S.W.2d 651 (Tex.Cr.App.1976) the record showed that the accused appeared in a service station in an intoxicated condition and was attempting to purchase tire chains for his car. We held the evidence sufficient to show a violation of Section 42.08, supra.

An essential element of Section 42.-08, supra, is that the individual must be intoxicated to the extent that he may endanger himself or another. In Balli it was the potential danger involved in walking down the middle of the street in an intoxicated condition which supplied the necessary element. In Bentley it was the potential danger which would have arisen if the accused had attempted to drive his car which convinced the court that he had violated Section 42.08.

In the instant case appellant rendered himself subject to potential danger by becoming so intoxicated that he fell asleep in a car in front of a lounge in the middle of the night. The State points out in its brief that appellant was “vulnerable to an assortment of difficulties.” It is also possible that appellant could have awakened and taken it upon himself to drive himself and his companion home, which would have constituted an even clearer danger. Under the holdings in Balli v. State, supra, and Bentley v. State, supra, we find that the record shows, by a preponderance of the evidence, that appellant committed the offense of public intoxication.

Furthermore, the terms and conditions of appellant’s probation include the requirement that appellant “avoid injurious or vicious habits (including the use of narcotics or habit-forming drugs and alcoholic beverages).” Considering that a motion to revoke probation need not be so specific as an indictment, Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976), we think that the allegation that appellant committed the offense of public intoxication is sufficient to allege a violation of this requirement of his probation. The evidence clearly shows that appellant used intoxicating beverages in violation of this requirement of his probation.

Under the circumstances we hold the trial court did not abuse its discretion in revoking appellant’s probation.

Appellant’s first ground of error is overruled.

In his second ground of error appellant contends that the indictment in his original conviction for robbery by assault was fundamentally defective in that it failed to allege ownership of the property. Appellant’s contention is without merit. The indictment clearly identifies Carl Oliver as the complainant and states that appellant took from the complainant money and cigarettes owned by the Complainant . . . ” The indictment is substantially the same as that approved by this Court in Byrd v. State, 456 S.W.2d 931 (Tex.Cr.App.1970).

Appellant’s second ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: DOUGLAS, Judge.

text:
    Edward JIMINEZ, Appellant, v. The STATE of Texas, Appellee.
    Nos. 53123-53126.
    Court of Criminal Appeals of Texas.
    June 22, 1977.

      Rudolph E. Gaulke, Court appointed on appeal only, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Cause No. 52,123 is an appeal from an order revoking probation. On August 5, 1974, appellant entered a plea of guilty to the offense of forgery as defined by Article 979, V.A.P.C. (1925). The court found him guilty and assessed punishment at six years. The imposition of sentence was suspended and probation was granted. On October 3, 1975, probation was revoked and the punishment was reduced to four years.

Cause No. 53,124 is also an appeal from an order revoking probation. Appellant again pled guilty on August 5, 1974, to the offense of forgery. This conviction was obtained under the authority of V.T.C.A., Penal Code, Section 32.21. Punishment was assessed by the court at six years and probation was granted. Such probation was also revoked on October 3, 1975, and the punishment was reduced to four years.

Cause Nos. 53,125 and 53,126 are appeals from convictions for forgery by making in violation of Section 32.21, supra. In each case appellant waived trial by jury and entered a plea of guilty before the court. Punishment was assessed at four years in each case.

Appellant’s court-appointed counsel originally filed a brief in each of these appeals in which he asserted that the appeals were frivolous. By a per curiam opinion dated November 17, 1976, we abated the appeals and ordered counsel to re-brief them and allege error. He has complied and now advances a total of twenty-one grounds of error. The appeals are reinstated so that we can determine whether those grounds have merit.

CAUSE NO. 53,123

Appellant initially contends that the indictment is fundamentally defective because it fails to allege he intentionally or knowingly made a false instrument.

The indictment alleges, in pertinent part, that appellant “did then and there unlawfully and without lawful authority and with intent to injure and defraud, make a false instrument in writing, as follows: . . . ” A copy of the instrument follows this allegation.

This case arose under Article 979 of the former penal code. It is well established that an indictment which alleges an act was done “with intent to injure or defraud” sufficiently charges intent under that article. Deeherd v. State, 104 Tex. Cr.R. 105, 283 S.W. 168 (1926). See also Threadgill v. Capra, 161 Colo. 453, 423 P.2d 318 (1967), which contains a discussion of the law of forgery in Texas.

Appellant next contends that the trial court abused its discretion in revoking probation in this cause because the evidence is insufficient to support such action. The State filed a motion to revoke alleging that appellant had violated probation by committing the offenses of assault and passing a forged instrument (twice), by failing to obtain suitable employment, and by failing to pay court costs in the amount of $260.00. He entered a plea of true to these allegations. Such plea was alone sufficient to support revocation. Guillot v. State, 543 S.W.2d 650 (Tex.Cr.App.1976); Mitchell v. State, 482 S.W.2d 221 (Tex.Cr.App.1972).

Appellant next contends that the trial court abused its discretion in revoking probation because there is a fatal variance between the date of one of the forgery offenses alleged in the motion to revoke probation and the date orally announced by the trial court at the conclusion of the hearing.

We need not reach this contention. The court’s written order showed revocation was based upon the offense of assault and failure to obtain suitable employment and failure to pay court costs. The evidence supports these findings. We noted in Balli v. State, 530 S.W.2d 123 (Tex.Cr.App.1975), and Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976), that the written order controls over the oral announcement. This is particularly true where, as here, the written order is included in the appellate record to which no objection has been addressed. Ablon v. State, supra.

The judgment in Cause No. 53,123 is affirmed.

CAUSE NO. 53,124

Appellant contends the indictment is fundamentally defective because it fails to allege that he knowingly forged the instrument.

The indictment alleges, in pertinent part, that appellant “. . . did then and there unlawfully . . . with intent to defraud and harm, forge, by making a writing as follows: . . .” A copy of the instrument follows this allegation.

This case arose under the new code. The forgery statute, Section 32.21, supra, provides, in material part, as follows:

“(a) For purposes of this section:
“(1) ‘Forge’ means:
“(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
“(i) to be the act of another who did not authorize that act;
“(ii) to have been executed at a time or place or in a numbered sequence other than was in fact the case; or
“(Hi) to be a copy of an original when no such original existed;
* *
“(b) A person commits an offense if he forges a writing with intent to defraud or harm another.”

In the recent decision of Jones v. State, 545 S.W.2d 771 (Tex.Cr.App.1977) (opinion on motion for rehearing), we held that an indictment for forgery which fails to allege knowledge as an essential element is not fundamentally defective. The opinion noted:

“A reading of the statute reveals that it unequivocally prescribes a single culpable mental state for forgery: This is the intent to defraud or harm, which is required by subsection (b) of Section 32.21. ...” 545 S.W.2d at 775.

Since no motion to quash was filed in the instant case, the failure to allege knowledge is not before us on appeal.

Appellant again attacks the sufficiency of the indictment. He argues that it is fundamentally defective because it fails to allege that the specific intent to defraud and harm was to another. This argument is without merit.

Article 21.05, V.A.C.C.P., provides:

“Where a particular intent is a material fact in the description of the offense, it must be stated in the indictment; but in any case where an intent to defraud is required to constitute an offense, it shall be sufficient to allege an intent to defraud, without naming therein the particular person intended to be defrauded.”

See also, Allen v. State, 44 Tex.Cr.R. 63, 68 S.W. 286 (1902).

Appellant contends the indictment is fundamentally defective because it does not contain a purport clause. See Section 32.-21(a)(l)(A)(i), (ii) and (iii), supra.

The indictment alleges forgery by making with intent to harm and defraud. This allegation is followed by a copy of the forged instrument. The instrument purports to be the “act of another who did not authorize that act.” Section 32.-21(a)(l)(A)(i), supra. Where the instrument alleged to be the subject of the forged indorsement is set out in haec verba in the indictment and shows that both the maker and the payee are different persons than the accused, it is not necessary that the indictment aver that the forged instrument purports to be the act of another. Ames v. State, 499 S.W.2d 110 (Tex.Cr.App.1973). See also Webb v. State, 39 Tex.Cr.R. 534, 47 S.W. 356 (1898). Moreover, we recently upheld an indictment under the new code in Jones v. State, supra, which did not contain a purport clause.

Next, appellant asserts the trial court abused its discretion in revoking probation because the evidence is insufficient to support the revocation. His plea of true to the motion to revoke was alone sufficient to support the revocation order. Guillot v. State, supra; Mitchell v. State, supra.

Appellant again urges that there is a fatal variance between the motion to revoke probation and the court’s oral findings at the conclusion of the revocation hearing. We overrule this contention for the reasons stated in Cause No. 53,123, supra.

The judgment in Cause No. 53,124 is affirmed.

CAUSE NO. 53,125

Appellant’s initial contention is that the indictment is fundamentally defective because it fails to allege he intentionally or knowingly made a false instrument. This contention was decided adversely to appellant in Jones v. State, supra. Any defect was waived since no motion to quash was filed in the present case.

Appellant next contends the indictment is fundamentally defective because it fails to allege that the intent to harm and defraud was to another. Article 21.05, supra, expressly eliminates the need to make such an allegation. See also the cases cited in Cause No. 53,124, supra.

Appellant again urges that the indictment is fundamentally defective because it does not contain a purport clause. We reject this contention for the reasons stated in Cause No. 53,124, supra.

Appellant contends the indictment is fundamentally defective because it shows no writing which purports to be the act of another.

The indictment contains a copy of a check purportedly drawn on the bank account of Byron Lee. But no signature is shown. Instead, “Byron Lee” is typed in the place for signature. Appellant argues that no offense is charged under these circumstances.

The copy shows on its face whose act it is purported to be. The typed name, “Byron Lee”, warrants the conclusion that appellant intended to use Lee’s name since the indictment alleges appellant forged the check with the intent to harm and defraud. Cf. Burnett v. State, 102 Tex.Cr.R. 595, 279 S.W. 260 (1926).

Appellant complains that a fatal variance exists between the instrument set out in the indictment and alleged to have been forged and the check admitted into evidence. Although the instrument set out in the indictment reflects the typed name “Byron Lee”, the copy of the check admitted into evidence without objection reflects Byron Lee’s purported signature.

The State alleged that appellant forged a cheek drawn on Byron Lee’s bank account. Appellant pled guilty and admitted the allegations in the indictment. The copy of the check contained in his judicial confession reflects Lee’s purported signature. No fatal variance is shown. See Berry v. State, 105 Tex.Cr.R. 549, 289 S.W. 412 (1926); cf. Golden v. State, 475 S.W.2d 273 (Tex.Cr.App.1971).

Appellant challenges the sufficiency of the evidence. He entered a plea of guilty and made a judicial confession. The judicial confession, standing alom is sufficient to support the guilty plea. Byron v. State, 528 S.W.2d 224 (Tex.Cr.App.1975); Henderson v. State, 519 S.W.2d 654 (Tex.Cr.App.1975).

Lastly, appellant contends that there is a fatal variance between the first count of the indictment and the judgment and sentence.

The first count of the indictment charged appellant with forgery by making. The second count charged him with forgery by passing. The record reflects that he pled guilty before the court to the first count. In his judicial confession he admitted to the truth of the allegations in the first count only. The court orally found appellant “guilty as charged of the offense of forgery.” Yet the judgment and sentence recite that appellant was found guilty of both forgery by making and forgery by passing.

[19,20] Where this Court has the necessary data and evidence before it for reformation, the judgment may be reformed on appeal. Article 44.24, V.A.C.C.P.; Vasquez v. State, 477 S.W.2d 629 (Tex.Cr.App.1972). In the instant case, it is clear the trial court found appellant guilty of forgery by making as alleged in the first count of the indictment. Thus, the judgment and sentence are reformed to conform to that finding. Cf. Clark v. State, 163 Tex.Cr. 54, 289 S.W.2d 248 (Tex.Cr.App.1956).

No reversible error is shown. As reformed, the conviction in Cause No. 53,125 is affirmed.

CAUSE NO. 53,126

Appellant contends the indictment is fundamentally defective because it fails to allege that he knew the instrument was forged. Jones v. State, supra, also cited in Cause Nos. 53,124, supra, and 53,125, supra, is contrary to appellant’s position. Since no motion to quash was filed, nothing is presented for review.

Appellant next urges that the indictment is fundamentally defective because it fails to allege that the specific intent to defraud and harm was to another. This contention is without merit for the reasons stated in Cause Nos. 53,124, supra, and 53,125, supra.

Appellant again attacks the indictment because it does not contain a purport clause. See Section 32.21(a)(l)(A)(i), (ii) and (iii), supra. Such a clause is unnecessary for the reasons stated in Cause No. 53,124, supra.

Appellant’s final contention is that a fatal variance exists between the first count of the indictment and the judgment and sentence.

As in Cause No. 53,125, supra, appellant was charged with forgery by making and forgery by passing in a two-count indictment. After he pled guilty to the first count only, the trial court orally found him “guilty as charged of the offense of forgery.” The judgment and sentence again recite that he was found guilty of both forgery by making and forgery by passing.

The judgment and sentence reflect a clerical error only. Therefore, the judgment and sentence are reformed to show that appellant was adjudged guilty of forgery by making. See the cases cited in Cause No. 53,125, supra.

No reversible error is shown. As reformed, the judgment in Cause No. 53,126 is affirmed.

ONION, P. J., and ODOM, J., dissent in Causes Nos. 53,124, 53,125 and 53,126.


text:
    John A. POLLARD, Appellant, v. The STATE of Texas, Appellee.
    No. 53554.
    Court of Criminal Appeals of Texas.
    June 22, 1977.

      James H. Kreimeyer, Belton, for appellant.
    Joe Carroll, Dist. Atty., Paul R. Reagan and Geoffrey A. FitzGerald, Asst. Dist. At-tys., Belton, Jim D. Voders, 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 aggravated kidnapping. Appellant was tried before a jury which assessed punishment at life in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged; therefore, only a brief recitation of the facts is necessary. The record reflects that the appellant forced Mrs. D-R-S-⅛ car to the side of the road and then forced Mrs. S_ and her two-year-old daughter into his own car. Appellant drove to an isolated area near Killeen where he ordered Mrs. S_ to disrobe. Appellant then forced Mrs. S-to submit to sexual intercourse by threats that something would happen to her child. Mrs. S-testified that after appellant raped her she saw the lights of an approaching car. Appellant was startled by the lights and began to drive away so Mrs. S-grabbed her child and ran toward the approaching car which was a Killeen police vehicle. The police officer came to Mrs. S-⅛ aid and radioed for assistance in apprehending appellant.

In his sole ground of error appellant contends that the prosecutor made an improper jury argument which constituted a comment on appellant’s failure to testify.

During closing argument to the jury at the guilt/innocence phase of the trial the prosecutor made the following remarks:

“. . . There has been a little talk about whether or not Mrs. S_ remembered the tire tool the first time she was questioned or thereafter. The point is simple enough. The defendant got out of his car with the tire tool behind his back. Ten or fifteen seconds later he is upon her. She sees him. No one contradicts her. She says she saw it.
“MR. KREIMEYER (defense counsel): Your Honor, I’m going to object to that as being a comment on the defendant’s failure to testify.
“THE COURT: The objection is overruled.
“MR. KREIMEYER: Note my exception.
“MR. FITZGERALD (Prosecutor): Whether or not she said it twenty times or one, she said it. It’s up to you whether or not you believe her word . . .” (Emphasis added)

The prosecutor’s remark about a tire tool refers to appellant’s attempt to impeach Mrs. S_’s testimony about her abduction. She testified at trial that after appellant forced her car off the road he approached her holding a tire tool in his hand. On cross-examination appellant impeached her testimony with her prior written statement to the police wherein she stated that appellant approached her with something in his hand. The prior statement did not identify the object as a tire tool. During jury argument, appellant’s counsel made reference to the fact that Mrs. S_had not mentioned anything about a tire tool until she took the witness stand. The State contends, therefore, that the prosecutor’s remarks quoted above were invited by defense counsel. We disagree.

Before an argument of the prosecution will constitute a comment on the failure of the accused to testify, the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the accused must be a necessary one. It is not sufficient that the language might be construed as an implied or indirect allusion. Nowlin v. State, 507 S.W.2d 534 (Tex.Cr.App.1974); Turner v. State, 504 S.W.2d 843 (Tex.Cr.App.1974).

A statement that certain evidence is uncontroverted or unrefuted or uncontra-dicted does not constitute a comment on the accused’s failure to testify where the record indicates that persons other than the accused could have offered contradictory testimony. Nowlin v. State, supra; Gorman v. State, 480 S.W.2d 188 (Tex.Cr.App.1972).

However, in Dubose v. State, 531 S.W.2d 330 (Tex.App.1976) we held that where the victim and the accused were the only persons present at the time of the offense and where the accused does not testify at trial, the prosecutor’s remark that the defense had not presented “one scintilla of evidence” challenging the credibility of the victim was a comment on the accused’s failure to testify. Such a comment violated Article 38.08, V.A.C.C.P.; Article 1, Sec. 10, of the Constitution of the State of Texas, and the Fifth Amendment of the United States Constitution. See also McDaniel v. State, 524 S.W.2d 68 (Tex.Cr.App.1975) and Bird v. State, 527 S.W.2d 891 (Tex.Cr.App.1975).

In Watson v. State, 171 Tex.Cr.R. 526, 352 S.W.2d 120 (1961) the prosecutor argued that the evidence showed facts and circumstances that “can not be refuted and have not been refuted.” He argued further that certain facts were “uncontradicted in this record” and that if there was any evidence showing anything other than the guilt of the accused “it has not been produced in evidence on this case.” This Court held that since the record showed that the accused was the only person who could have testified to the matters referred to the prosecutor’s remarks constituted a reference to the accused’s failure to testify.

In Mowery v. State, 140 Tex.Cr.R. 657, 146 S.W.2d 988 (1941) the prosecution in a rape case argued:

“It is not shown in this record anywhere a contradiction as to the commission of the act.”

This statement was held to be error since no one except the accused was in a position to contradict the testimony regarding the act of intercourse.

In the instant case the record shows that Mrs. S_, her two-year-old child and appellant were the only parties present at the time of the offense. Appellant was the only person who could refute Mrs. S_’s testimony; therefore, the prosecutor’s reference to Mrs. S-⅛ testimony as uncontroverted was a comment on appellant’s failure to testify in violation of the authorities cited above.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: DOUGLAS, Judge. ODOM, Judge,

text:
    Thomas JORDAN, Appellant, v. The STATE of Texas, Appellee.
    No. 54232.
    Court of Criminal Appeals of Texas.
    June 22, 1977.

      Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Appellant was convicted in two counts in one indictment for the offenses of burglary of a building with intent to commit theft and theft. Trial was before the court upon a plea of guilty. Punishment was assessed at two years on each count.

This was an attempt to prosecute pursuant to V.T.C.A., Penal Code, Sections 3.01 and 3.02, and Article 21.24, V.A.C.C.P., as amended, wherein a single prosecution is allowed for multiple offenses arising out of the same criminal episode. “Criminal episode” is defined in V.T.C.A., Penal Code, Section 3.01, as “the repeated commission of any one offense defined in Title 7 of this code (Offenses Against Property).” Such definition precludes burglary and theft from constituting “offenses arising out of the same criminal episode.”

A parallel situation existed under the former penal code where two distinct felonies based on different transactions were alleged in the same indictment.

The theft count of the two-count indictment is fundamentally defective for failure to allege lack of effective consent of the owner. See Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1976). Hence, the only remaining and only valid count is that of burglary of the building. This Court has the power to reform and correct the judgment as the law and the nature of the case may require. When, on appeal, this Court has the same information for the reforming or correcting of the judgment as the trial court would have were the judgment reversed or the appeal dismissed, the judgment will be reformed and corrected on appeal. Article 44.24, V.A.C.C.P.; 1 Branch’s Ann.P.C.2d, Section 688, page 661, and cases cited therein.

Next is the requirement that in cases of joinder under Sections 3.01 and 3.02, supra, and Article 21.24, supra, separate sentences be pronounced. V.T.C.A., Penal Code, Section 3.03, provides:

“When the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, sentence for each offense for which he has been found guilty shall be pronounced. Such sentences shall run concurrently.”

The above provision requires separate sentences in joinder cases. In White v. State, 543 S.W.2d 130 (Tex.Cr.App.1976), the defendant had been convicted of three counts of aggravated robbery, but the sentence referred only to a single conviction for robbery occurring on a specific date. No mention was made of the other two counts nor the dates on which the robberies were committed. This Court affirmed as to the conviction on the first count and dismissed the appeals as to the second and third counts. In so doing, Presiding Judge Onion, speaking for the majority, said:

“If proper sentences were in fact pronounced in the case regarding the second and third counts, but there was a failure to enter such sentences, they may be entered nunc pro tunc. Art. 42.06, V.A.C. C.P. If, on the other hand, sentences were never properly pronounced, the Court may now pronounce sentences and an appeal may be taken therefrom if appellant so desires.”

In the instant case the sentence contains recitations as to both convictions, burglary of a building and theft. The sentence should be corrected to read burglary of a building. The situation is analogous to that in Shapley v. State, 431 S.W.2d 3 (Tex.Cr.App.1968), where the indictment charged two offenses, embezzlement and theft. The trial court submitted only the theft offense to the jury, the jury found the defendant guilty as charged, and the judgment and sentence recited that the defendant had been adjudged guilty of embezzlement of over fifty dollars. We reformed the judgment and sentence on appeal to show that the defendant’s conviction was for felony theft.

In Clark v. State, 289 S.W.2d 248 (Tex.Cr.App.1956), where the indictment included both the offense of forgery and of passing a forged instrument, and the defendant pled guilty and was adjudged guilty of both, and a term of seven years in the penitentiary was assessed, we reformed the judgment and sentence to read that he was adjudged guilty of forgery and sentenced to a term of not less than two years nor more than seven years. Likewise, in Cunningham v. State, 484 S.W.2d 906 (Tex.Cr.App.1972), where the jury had found the defendant guilty of the offense of concealing stolen property but the judgment and sentence recited that he had been convicted of receiving and concealing stolen property, we reformed the judgment and sentence to accord with the jury’s verdict.

Then in Franco v. State, 491 S.W.2d 876 (Tex.Cr.App.1973), where the indictment charged defendant in two counts with unlawful sale of marihuana and unlawful possession of marihuana but the court’s charge submitted only the issue as to sale, we reformed the judgment finding the defendant guilty of sale and possession to guilty only of sale. See also Article 44.24, V.A.C. C.P., and the cases collated under notes 24, 65, 70 and 74.

No reversible error is shown. The judgment and sentence are reformed to reflect the conviction only for burglary of a building with intent to commit theft.

As reformed, the conviction is affirmed.

ODOM, Judge,

dissenting.

I dissent to this Court’s exercise of jurisdiction in this appeal because in the absence of a proper sentence we are without power to hear the case on its merits.

Although Article 44.24(b), V.A.C.C.P., authorizes this Court to reform and correct the judgment, the sentence and judgment are not the same thing, but are distinct and independent. Arts. 42.01 and 42.02, V.A.C. C.P.; Morgan v. State, Tex.Cr.App., 515 S.W.2d 278; Scott v. State, Tex.Cr.App., 461 S.W.2d 619. Pronouncement of sentence is jurisdictional for an appeal to this Court, and a purported sentence which does not meet all the elements of the statutory definition is no sentence at all. Casias v. State, Tex.Cr.App., 503 S.W.2d 262. The defective sentence constitutes a jurisdictional barrier preventing our consideration of the case on its merits. This barrier to the exercise of our appellate jurisdiction dictates that this appeal be dismissed. The other defects sought to be “corrected” by the majority may be corrected by the trial court upon its resumption of jurisdiction over this case following our dismissal. For this Court to consider the merits, when we have no jurisdiction to do so, is usurpation. Stuart v. Anderson, 70 Tex. 588, 8 S.W. 295 (1888).

Because the sentence in the case at bar recites conviction for two distinct offenses, it is void on its face for uncertainty, and is therefore insufficient to support jurisdiction in this Court. The majority cite four cases as authority for reforming the sentence instead of dismissing the appeal: Clark v. State, Tex.Cr.App., 289 S.W.2d 248; Shapley v. State, Tex.Cr.App., 431 S.W.2d 3; Cunningham v. State, Tex.Cr.App., 484 S.W.2d 906; and Franco v. State, Tex.Cr.App., 491 S.W.2d 876. Franco is not in point: The opinion in Franco recites that the judgment was reformed; no reformation of the sentence was ordered. Art. 44.-24(b) authorizes reformation of a judgment, but not of a sentence. Shapiey also is not in point: The sentence in Shapiey recited conviction for embezzlement, and therefore was not void on its face for uncertainty, and did support the exercise of appellate jurisdiction. Only upon consideration of the merits was it revealed that the judgment and sentence erroneously recited embezzlement instead of theft. Thus, Shapiey does not support exercise of our appellate jurisdiction in the instant case.

Although Cunningham and Clark, both supra, appear to have been decided on sentences suffering a defect like the one before us now, in neither case was the jurisdictional issue addressed, nor was any authority cited for the power to reform a sentence. Thus, they are not authority on the jurisdictional issue.

The exercise of this Court’s appellate jurisdiction is not a matter of discretion. Just as we may not decline to hear an appeal when jurisdiction is properly invoked, we likewise may not hear an appeal when jurisdiction is lacking. See my concurring opinion in Means v. State, Tex.Cr.App., 552 S.W.2d 166 (1977).

The majority today, as in Ex parte Shields, Tex.Cr.App., 550 S.W.2d 670 (1977) (opinions on rehearing) refuse to address the fundamental jurisdictional issue presented. These jurisdictional matters define the limits of this Court’s power. The issue is not a matter of insignificant technicalities, but of the practical limits of this Court’s power. The people of Texas and the bench and bar are entitled to a ruling on the limits of that power. It is the duty of this Court, when the issue arises, as in the instant case and others recently before us, to address this fundamental issue. The refusal of this Court to account for the source of its power is repugnant to the basic principles of a government answerable to the people. The majority not only fail to show authority for taking jurisdiction of this case, but refuse to even address the issue.

I dissent to the exercise of jurisdiction in this case. However, in view of the majority’s position, I will no longer urge consideration of the issue. We are all bound by the decisions of the Court. See, e. g., Childs v. State, Tex.Cr.App., 547 S.W.2d 613, 615, n. 2; Banks v. State, Tex.Cr.App., 530 S.W.2d 940, 942, n. 1.

PHILLIPS, J., joins this dissent.

      . Contrast our discretionary jurisdiction in original habeas corpus matters, as discussed in Ex parte Norvell, Tex.Cr.App., 528 S.W.2d 129, 130.

      . See, e. g., Ex parte Dickey, Tex.Cr.App., 543 S.W.2d 99; Hurd v. State, Tex.Cr.App., 548 S.W.2d 388; Ex parte Shields, supra; Means v. State, supra; Ex parte Guzman, Tex.Cr.App., 551 S.W.2d 387 (No. 54253, 1977).

      . In contrast to today’s expansion of appellate jurisdiction in the face of no statutory or constitutional authority, see Ex parte Guzman, Tex.Cr.App., 551 S.W.2d 387 (No. 54253, 1977), in which the dissent urged restriction of habeas corpus jurisdiction in the face of statutory authority and constitutional protection for the availability of the writ.


author: DAVIS, Commissioner.

text:
    Kenneth Dee STOGSDILL, Appellant, v. The STATE of Texas, Appellee.
    No. 54781.
    Court of Criminal Appeals of Texas.
    June 22, 1977.

      Thomas W. Schueller, Wichita Falls, for appellant.
    Timothy D. Eyssen, Dist. Atty. and Roger E. Towery, Asst. Dist. Atty., Wichita Falls, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for capital murder. Punishment was assessed at death.

Appellant contends that the court erred “in holding evidence to be sufficient to sustain conviction, when circumstances amounted to ‘strong suspicion’ and ‘mere probability’ of Appellant’s participation in the offense charged.”

The indictment upon which the prosecution was based charged in pertinent part that appellant “on or about the 14th day of April A.D. 1975” did then and there

“intentionally cause the death of Billy Ed Price by beating him and stabbing him with a lug wrench, and that the said Kenneth Dee Stogsdill was then and there in the course of committing and attempting to commit robbery of the said Billy Ed Price. . . . ”

The challenge to the sufficiency of the evidence necessarily requires a detailed review of the evidence.

The record reflects that Billy Ed Price was last seen alive on the morning of April 14, 1975, by his brother-in-law, A1 Furr, when Furr left Price at the Continental Bus Station in Dallas. Furr testified that Price had over a hundred dollars on his person. On the morning of the next day, April 15, 1975, Jerry Smith and two co-workers were dispatched to an oil lease south of Burkbur-nett for the purpose of repairing a salt water leak. In traveling to the lease, Smith and his companions crossed a wooden bridge which was in a state of disrepair as the result of loose boards. After completing their task at the oil lease, Smith and his companions stopped at the bridge to “straighten up the boards” in order that further inconvenience might be avoided in crossing the bridge. In the course of doing the necessary repair work, a body was discovered under the bridge. Law enforcement officers were immediately notified. Investigation revealed that the body under the bridge was nude, beaten, stabbed and sexually mutilated. The body was later identified at the morgue in Wichita Falls by Mr. and Mrs. Al Furr as being that of Mrs. Furr’s brother, Billy Ed Price.

Dr. Donald Fletcher, a pathologist, performed an autopsy on the body of the deceased at 3:00 p. m. on April 15, 1975. Dr. Fletcher testified as to numerous lacerations and bruises of the body which included a badly beaten head resulting in an egg-shell fracture. Stab-like perforations resulted in two punctures of the heart, tears and puncture of the lungs, pancreas and stomach. A puncture wound in the scrotal area resulted in a penetration of the large and small bowels. The male reproductive organs had been removed by “a very fine, knifelike cut.” In response to a question as to the cause of death, Dr. Fletcher stated, “ . . . there are several possibilities, but the most likely would be the perforation and tearing of the heart. That would lead to a very rapid death.”

Dr. Fletcher’s reply to the question of whether the wounds which resulted in death could have been caused by being stabbed with a lug wrench was, “That would be an excellent tool to do what was done.” When asked if he had an opinion as to whether the deceased was clothed or nude at the time the wounds were inflicted, Dr. Fletcher answered, “I would think it would be rather difficult to predict. . My opinion would be that the body was nude.” The autopsy revealed a high content of alcohol and barbiturates in the body, leading Dr. Fletcher to conclude, “My opinion is that had he [deceased] not — any person with that level of drugs in his system, in his blood, untreated would die, without any further injuries.”

Dean Bohannon, a former employee of the Vernon Police Department, and his wife were walking along the Pease River in Wil-barger County on April 15,1975, when they “spotted a suitcase and some clothing- floating in the river.” Bohannon was able to recover the items and took them to the Vernon Police Department. The following day, an investigation of this area of the river resulted in the recovery of clothing and a lug wrench.

A few days later, Deputy Sheriff King of Wilbarger County found a social security card with the name Billy Ed Price on it and some photographs under a bridge on a farm to market road about one and a half miles north of the Pease River bridge.

While en route from Chillicothe to Vernon sometime during April, 1975, Wilburn Hendry at a point “approximately seven miles” north of Vernon observed a boot laying just off the shoulder of the road, “and possibly fifty, maybe seventy-five yards further down the road I noticed another one.” Hendry retrieved the boots and turned them over to the Wilbarger County Sheriff’s Department. Deputy Sheriff Russell, along with Hendry, returned to the location where the boots were found and a search of the area resulted in the recovery of a leather dress glove.

The Furrs identified the boots, the glove, and some of the items of clothing found in Wilbarger County as having belonged to the deceased.

William Kump testified that sometime during the harvest season of 1975 appellant picked him up at about 8:00 p. m. when he was “hitchhiking” a ride to his motel. According to Kump, they rode around for an hour or two until they stopped at a “roadside park place.” Kump and appellant stayed at this location until “4:30 or 5:00, maybe a little later” the next morning. Kump stated that prior to the time they left this location appellant told him that “he wanted to cut my dick and balls off with a pocket knife — he wanted to make a woman out of me.” Appellant took Kump to his motel and asked him not “to tell anybody about anything that happened, what was said there.” The record reflects that these events transpired in and around Vernon.

Steven Laney, a transient, testified he met appellant in the Office Lounge in Wichita Falls on July 21,1975, around “7:30 or 8:00 o’clock” in the evening after he, Laney, had been drinking beer since noon, that he and appellant later went to another bar and, after leaving the second bar, they “bought some beer and went out towards somewhere south of town.” They stopped at a roadside park where additional beer was consumed and Laney “blacked out.” The only thing Laney remembered after this point was “ . . . being struck from around the right-hand to the rear side with an object.” Later Laney was aware of “ . . . crawling to the highway through kind of a swamp-like thing, through about two feet of water.” The first time Laney “came to after blacking out” was after he had been struck with an object. In response to the question, “Who struck you?” Laney responded, “Mr. Stogs-dill [appellant], I believe.” Laney stated that he saw appellant and he had “more or less a mad expression.” Laney further testified that he did not recall appellant making any advances toward him and although he received severe injuries to his body he did not believe his sexual organs had been “tampered with.” John Gibbs, physical director of the Wichita Falls YMCA, saw Laney sitting beside the road a mile or two outside of Henrietta on July 22, 1975. Gibbs related that Laney was clad in one black sock and the most serious of his multiple injuries appeared to be an injury to his skull. Prior to the admission of Laney’s testimony, a hearing was held outside the presence of the jury on appellant’s motion to suppress the testimony of Laney on the basis that same was inadmissible as an extraneous offense. At the conclusion of the hearing, the court found same to be admissible. Upon the return of the jury, the court instructed the jury that evidence of the extraneous offense was admitted only on the issue of identity. The court’s action in admitting the extraneous offenses gives rise to the only other ground of error advanced by appellant, which we find unnecessary to discuss in light of our disposition of appellant’s contention relative to the sufficiency of the evidence.

While the State does not point to what circumstances connect appellant with the crime in its brief, it would appear from a review of the record that the prosecution relies on a comparison of casts of tire tracks at the scene and two tires taken from a pickup truck sold by appellant to Edward Lee Thomas on April 28, 1975, and the comparison of known hair of the deceased and hairs which were picked up with a vacuum cleaner used on the interior of said truck on August 12, 1975.

Deputy Inglish of the Wichita County Sheriff’s Department took the two tires taken from the pickup (the only two tires which still remained on the vehicle that were on same when appellant traded the pickup on April 28), along with the casts made of tire tracks at the scene of the murder, to the Department of Public Safety Lab in Garland on August 13, 1975.

Terry Crone, a chemist for the Department of Public Safety in Garland, testified regarding the comparison of the tires and casts made of tracks at the scene. The report which he identified as having been given by his office to Wichita County authorities appears to fairly summarize his testimony. It reads in pertinent part:

“On August the 13th, 1975, you personally submitted two Firestone tires and two plaster casts of tire tracks. It was requested that examination be made to determine whether or not either of the submitted tires made either or both of the impressions from which the plaster casts were made. We have completed our examinations and wish to report that both of the tires exhibit a tread design similar to that shown by one of the plaster casts. However, the plaster casts do not show enough detail to identify either of these tires as having made the impressions from which the cast was taken. . . ”

On redirect examination, Crone was asked, “But you’re not saying that one of those tires did not make that impression either, are you?” and the witness answered, “That is correct, it’s possible it could have made it.” On recross, Crone testified that the cast was made by some tire of the same type of tread, of the same tread design and the same size, but he could not say that the tires in question made it.

Deputy Inglish testified that he took the measurements of the track and wheel base of the pickup appellant sold Thomas and found same to be “almost identical” to the measurements of tracks of an unknown vehicle at the murder scene. On cross examination, Inglish stated that he presumed that this would be the same measurement on any hundred and fourteen inch wheel base vehicle.

John Hippard, a special agent assigned to the F.B.I. laboratory in Washington, D. C., testified that the nature of his work with the F.B.I. was conducting “microscopic examinations and comparisons of hairs, fibers and related materials.” After examining microscopically known hairs from the head of the deceased and two hairs taken from “debris from the pickup,” Hippard concluded they were microscopically alike and explained “whenever they are microscopically alike then my conclusion is that they could have come from the same source.” Hip-pard’s examination of the lug wrench or tire tool revealed that known body hairs of the deceased were “microscopically like” those on the tire tool, “and accordingly my conclusion would be that they could have come from the same source.” In response to a question on cross examination, Hippard stated that portion of his written report relative to his examination was correct which stated, “ . . . hairs do not possess enough individual microscopic characteristics to be positively identified as originating from a particular person to the exclusion of all others.”

Dr. Irving C. Stone, Chief of the Physical Evidence Section at the Institute of Forensic Sciences in Dallas, testified that known body hair taken from the deceased and hair found on the tire tool “could have come” from the same source. With respect to his comparison of known head hairs of the victim and hairs taken from the debris of the pickup, Dr. Stone concluded, “Everything I saw in the one set of hairs were identical in all characteristics to the other set.” In response to the prosecutor’s question, “Could you say how conclusive that is as to them coming from the same head?” Dr. Stone responded:

“It’s my experience you cannot positively associate a hair or set of hairs exclusively to a person to the exclusion of all other people in the world, but after you’ve looked at hairs for a number of years and you have an experience factor, you come to see that it is easy to differentiate — I can say positively that this hair could not have come from somebody — but once you’ve got two hairs that are the same in all observable characteristics and you’ve concluded that they might have come from the same person, what you’re saying in essence is that it’s highly unlikely it came from anybody else other than this person, but you’re still not saying conclusively, positively, that this hair is that person’s. . . . ”

On cross examination, Dr. Stone agreed that a definite identification of hair cannot be made, “since there’s a possibility of more than one source of that hair.”

Dr. John Randall, Director of the Nuclear Science Center at Texas A & M University, testified that he made a neutron activation analysis of known head hair samples of the deceased and three hairs Dr. Stone selected from the debris taken from the pickup as having compared extremely well with the known head hairs of the victim. Dr. Randall related that in using this procedure,

“ . . . we’re looking to find the trace minerals that are contained within the hair, and this we do and then we compare the distribution of minerals. We look at which ones we find, we look at how much we find, and then compare this between two hair samples. The object ultimately is to come up with some answer as to do these two hairs come from the same origin, that’s the reason of interest for the forensic application.”

Dr. Randall stated that he observed sodium, bromide, manganese, copper, aluminum, zinc and gold, and:

“Based on the analysis I found that six of the elements compared favorably for us to say they came from the same source, they compared favorably within the limits of the experiment. One element, the sodium, did not compare. In fact, looking at the ratio, the sample that was identified as the suspect [sic], all of those hairs had an amount of sodium four times greater than that which came from the pickup.”

Disregarding the discrepancy in the sodium element, Dr. Randall concluded that the probability of the match of the known head hair and the hairs found in the debris of the truck “is twenty-five thousand to one.” Dr. Randall suspected that the known hair from the victim had been contaminated by salt because “I have been informed that the victim’s head was immersed in a very salty stream, a stream that discharged salt waste.” Dr. Randall further testified regarding the variance in the sodium content:

“My opinion was that there are two plausible explanations; that is one of the two plausible explanations. The other is that these two samples came from different people. Now, yes, to explain away the sodium contamination is necessary for me to say I feel there is a greater probability that this is contaminated samples from the same individual.”

Dr. Randall further stated that if he had been able to make an “aluminum comparison . . . and I had an excellent comparison with aluminum,” the twenty-five thousand to one ratio would be much larger.

In conclusion, Dr. Randall testified if he had been able “to use the aluminum . and if the sodium had agreed, I would expect that the probability would be five hundred thousand to one.”

Appellant points to State’s Exhibit 41, which was identified as a picture “of the body itself beneath the bridge after some of the timbers had been removed,” which shows the head of the victim lying on the framework of the bridge clearly out of the water. State’s Exhibit 43 was identified by Officer Inglish as being a picture depicting the bridge and the body “as it was when we arrived.” Although this picture is taken from a different angle, the head of the victim appears to be in the same position shown in Exhibit 41. Appellant further points to an absence of testimony relative to there being any salt water in the creek to contaminate the head hairs of the victim. The State responds by pointing to testimony of one of the men who discovered the body who testified on direct as follows:

“Q. And is this a creek or ditch or what that this bridge is over?
“A. There’s a creek goes through there, never water in it unless it rains. “Q. Does any salt water from some of the separators ever get in this creek?
“A. Yes, sir, occasionally they do.”

Appellant did not testify, nor did he offer any evidence in his defense.

There being no direct evidence to connect appellant with the crime, the court properly instructed the jury on the law of circumstantial evidence.

In assessing the sufficiency of the evidence, we will assume arguendo that the evidence of the extraneous offense arising out of the injuries inflicted on one Steven Laney was admissible.

Every circumstantial evidence ease must necessarily be tested by its own facts to determine the sufficiency of the evidence to support the conviction. Baker v. State, Tex.Cr.App., 447 S.W.2d 172; Moore v. State, Tex.Cr.App., 532 S.W.2d 333; Higgins v. State, Tex.Cr.App., 515 S.W.2d 268; Indo v. State, Tex.Cr.App., 502 S.W.2d 166. The rule has long been that a conviction on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused, and proof amounting to only a strong suspicion or mere probability is insufficient. Indo v. State, supra; Easley v. State, Tex.Cr.App., 529 S.W.2d 522; Culmore v. State, Tex.Cr.App., 447 S.W.2d 915. In a very recent case, Flores v. State, 551 S.W.2d 364 (1977), where circumstantial evidence was relied on for conviction, this Court pointed out that it is not necessary, however, that every fact point directly and independently to the defendant’s guilt. It is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances.

In Flores, the defendant was charged with capital murder under V.T.C.A., Penal Code, Sec. 19.03, the indictment, like the one in the instant case, alleging that the murder occurred . . in the course of committing and attempting to commit robbery. . . . ” Unlike the instant case, the court in Fiores submitted murder (V.T.C.A., Penal Code, Sec. 19.02) in its charge rather than capital murder, thereby relieving the State of the burden of proving that the defendant committed the murder while “ . . .in the course of committing and attempting to commit robbery. . ” Under evidence more persuasive of the accused’s guilt than we find in the instant case, this Court in Flores found the evidence insufficient to support the conviction.

As was the case in Flores, appellant was not placed in company of the deceased. In Flores the defendant was shown to have been in possession of the deceased’s car about twenty-four hours after the deceased was last seen- alive. About six weeks later defendant was still in possession of the deceased’s car, at which time the vehicle bore license plates issued to another car. Clothing and other items belonging to the deceased were found in a suitcase in a car trunk where they had been left by defendant and a companion. Bloodstains were found on the seat of the car and on defendant’s shirt. While the stains did not respond to typing procedures, it was determined that the stains were of human blood.

In Flores, as in the instant case, there is no showing that defendant was at or near the scene of the crime. While the defendant in Flores was placed in the victim’s car the next day, it was not until almost four months after the crime that head hairs which bore the same characteristics as deceased’s were found in a pickup appellant sold about two weeks after Price’s murder. While the testimony of Dr. Randall regarding the results of the tests he performed on known head hairs of the deceased and the hairs found in the pickup reflected that the odds were extremely high that the hairs came from the same person, it was undisputed that the vehicle defendant was driving in Flores belonged to the victim. In Flores, clothing and personal items of the deceased were placed in the defendant’s possession. In the instant case, clothing and personal effects of the victim were recovered but appellant was not shown to have ever been in possession of same, nor was he shown to have been at or near the place where such items were recovered. In Flores, human bloodstains, though their origin was not shown, were found on the defendant’s shirt and in the victim’s car he was driving. No such showing is made in the instant case. In Flores, the victim’s car had license plates affixed to it which were issued to another vehicle when the defendant was discovered driving same six weeks after the crime. In the instant case, there is no showing of such a deceptive circumstance. While appellant sold a pickup on April 28, approximately two weeks after the murder of the deceased, containing hairs which were later determined to have the same characteristics of those known to belong to the victim, appellant is not placed in the pickup on the date of the murder, nor does the record reflect that the accused owned such vehicle on the date in question. The results of the comparison of the plaster casts of tire tracks at the scene and two tires taken from the pickup sold by appellant are clearly inconclusive. The same is true of the comparison of track and wheel base measurements made at the scene and those taken of the pickup in question. The record contains evidence which reflects that a lug wrench was probably the murder weapon. Appellant was never placed in possession of same, nor was he shown to have been at or near the place it was discovered. The incident related by William Kump and the extraneous offense where Steven Laney was beaten, which was admitted by the court on the issue of identity, do not prove that appellant committed the crime. See Brooks v. State, 138 Tex.Cr.R. 526, 137 S.W.2d 768.

While all of the circumstances shown may very well amount to proof of strong suspicion or a probability that appellant committed the crime charged, the evidence does not exclude all other reasonable hypotheses except appellant’s guilt.

For the failure of the evidence to meet the required burden of proof, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . It appears that the trial court admitted the extraneous offense in question on the basis that the issue of identity was raised by cross-examination of State’s witnesses. In the event of re-trial, we call attention to our decisions in Redd v. State, Tex.Cr.App., 522 S.W.2d 890; Caldwell v. State, Tex.Cr.App., 477 S.W.2d 877; Hickombottom v. State, Tex.Cr.App., 486 S.W.2d 951, which address the law in this area.