author: HENRY, Justice.

text:
    Robert BAXTER, Petitioner, v. J. H. ROSE, Warden, Respondent.
    Supreme Court of Tennessee.
    May 19, 1975.

      Hughie Ragan, Jackson, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., William J. Haynes, Jr., Asst. Atty. Gen., Nashville, for respondent.
   OPINION

HENRY, Justice.

We granted certiorari in this case to review the action of the Court of Criminal Appeals in affirming the dismissal of petitioner’s pro se petition for post-conviction relief without an evidentiary hearing.

Our grant was for the primary purpose of clarifying the law in this jurisdiction with respect to the proper standard of competence to be applied to counsel in criminal representations, and to determine whether privately retained counsel and counsel appointed to represent the indigent are subject to the same standards.

Petitioner was convicted of murder in the first degree and his punishment fixed at confinement in the State Penitentiary for ninety-nine years. This conviction was affirmed by the Court of Criminal Appeals, and certiorari was denied by the Supreme Court on November 19, 1973. On January 11, 1974, petitioner filed his pro se petition for post-conviction relief, predicated upon an alleged denial of his Sixth Amendment right to the effective representation of counsel. It should be noted that on his initial trial, he was represented by privately retained counsel, and that counsel so retained appealed his case to the Court of Criminal Appeals, and filed a petition for the writ of certiorari. It is the conduct of retained counsel that forms the basis of his present complaint. The trial judge dismissed the petition for post-conviction relief without appointing counsel to represent petitioner, and without holding an evidentiary hearing. The Court of Criminal Appeals subsequently appointed counsel, and counsel so appointed, pursued this matter through the Court of Criminal Appeals and now represents petitioner in this Court.

I.

The Tennessee standard for gauging the competency of counsel was laid down in State ex rel. Richmond v. Henderson, 222 Tenn. 597, 439 S.W.2d 263 (1969) wherein this Court adopted “(t)he standard applied by the overwhelming majority of federal courts”, as follows:

Incompetency of counsel such as to be a denial of due process and effective representation by counsel must be such as to make the trial a farce, sham, or mockery of justice. 439 S.W.2d at 264.

In support of the adoption of this standard, the Court cited cases from the Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth and District of Columbia Circuits.

Since State ex rel. Richmond was bottomed on the holdings of the “overwhelming majority of federal courts”, as of 1969, it is necessary that we trace the developments in the various circuits of the federal appellate system.

II.

(A)

The District of Columbia Circuit

The “farce and mockery rule” had its origin in Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667 (1945), wherein the Court stated:

It must be shown that the proceedings were a farce and a mockery of justice. Id. at 669

The same standard was applied in Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14 (1945).

In Bruce v. United States, 126 U.S.App. D.C. 336, 379 F.2d 113 (1967), the District of Columbia Circuit started on its retreat from the “farce and mockery” rule by stating:

These words are not to be taken literally, but rather as a vivid description of the principle that the accused has a heavy burden in showing requisite unfairness. Id. at 116.

In Scott v. United States, 138 U.S.App. D.C. 339, 427 F.2d 609 (1970), decided within one year after State ex rel. Richmond, supra, the D.C. Circuit declared that the farce and mockery standard was “no longer valid as such but exists in the law only as a metaphor that the defendant has a heavy burden to show requisite unfairness”. Further the Court declared:

The appropriate standard for ineffective assistance of counsel ... is whether gross incompetence blotted out the essence of a substantial defense. Id. at 610.

In 1973, there came before this Circuit, the case of United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973). The Court noted that the Supreme Court of the United States, in Wade v. United States, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967), has implied and that this Circuit had explicitly held in Scott, supra, that effective assistance, like the right to counsel itself, derives not only from the due process clause, but from the Sixth Amendment’s more stringent requirements. The Court, in DeCoster, adopted the following standard:

A defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate. 487 F.2d at 1202.

We are impressed by Chief Judge Baze-lon’s language in this most excellent case, and because of its relevance and the conciseness of the expression, we quote from it as follows:

In General — Counsel should be guided by the American Bar Association Standards for the Defense Function. They represent the legal profession’s own articulation of guidelines for the defense of criminal cases.
Specifically — (1) Counsel should confer with his client without delay and as often as necessary to elicit matters of defense, or to ascertain that potential defenses are unavailable. Counsel should discuss fully potential strategies and tactical choices with his client.
(2) Counsel should promptly advise his client of his rights and take all actions necessary to preserve them. Counsel should also be concerned with the accused’s right to be released from custody pending trial, and be prepared, where appropriate, to make motions for a pre-trial psychiatric examination or for the suppression of evidence.
(3) Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. The Supreme Court has noted that the adversary system requires that “all available defenses are raised” so that the government is put to its proof. This means that in most cases a defense attorney, or his agent, should interview not only his own witnesses but also those that the government intends to call, when they are accessible. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. And, of course, the duty to investigate also requires adequate legal research. Id. at 1203-04

Thus it will be seen that the farce and mockery rule has been abandoned in the court of its creation.

(B)

First Circuit

In Allen v. VanCantfort, 436 F.2d 625 (1st Cir. 1971), the Court held that the appropriate test is whether counsel’s actions were so incompetent as to shock the conscience of the reviewing court. This holding was reiterated in United States v. Sta-mas, 443 F.2d 860 (1st Cir. 1971).

In Moran v. Hogan, 494 F.2d 1220 (1st Cir. 1974), the Court applied the mockery, sham or farce rule, but, in a footnote, after noting that the Fifth and Sixth Circuits had adopted a different rule, indicated future reevaluation of its position by stating “(t)he instant case is an inappropriate one for reassessment of this circuit’s standard

(Q

Second Circuit

The rule in the Second Circuit as set forth in United States v. Yanishefsky, 500 F.2d 1327 (2nd Cir. 1974) is that in order to be of constitutional dimensions, the representation must be so “woefully inadequate ‘as to shock the conscience of the Court and make the proceedings a farce and mockery of justice’ ”,

(D)

Third Circuit

In this Circuit the test, as announced in Moore v. United States, 432 F.2d 730 (3rd Cir. 1970), is “whether counsel’s performance was at the level of normal competency”.

This standard was reiterated in 1972, in the case of United States ex rel. Watson v. Lindsey, 461 F.2d 922 (3rd Cir. 1972) and, according to our investigation continues to be the standard in that jurisdiction.

(E)

Fourth Circuit

The rule or standard applied in the Fourth Circuit is not entirely clear. In Snead v. Smyth, 273 F.2d 838 (4th Cir. 1959), the Court held that a deprivation of the constitutional right to counsel occurs only “where the representation has been so inadequate as to make a farce of the trial”.

In Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968), the Court, while not adopting a specific standard of “reasonable competence” suggests that standard in the following language:

The principles may be simply stated: Counsel for an indigent defendant should be appointed promptly. Counsel should be afforded a reasonable opportunity to prepare to defend an accused. Counsel must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial.' An omission or failure to abide these requirements constitutes a denial of effective representation of counsel unless the state, on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby. Id. at 226

Without citing Coles, supra, the same court in Bennett v. State of Maryland, 425 F.2d 181 (4th Cir. 1970), stated that “(i)t is only in such extreme instances where the representation has been so inadequate as to make a farce of the trial that it can be said that the prisoner was deprived of his constitutional rights”.

(F)

Fifth Circuit

In Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974), the Court traces the history of the applicable standards; points out that since the decision in MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), that Court has applied the “reasonably effective assistance” standard many times; that for several years following the decision in Williams v. Beto, 354 F.2d 698 (5th Cir. 1965), the Court used the “farce-mockery” language with some frequency, and in effect wound up by adopting a standard requiring counsel to render reasonably effective assistance. This is the construction placed upon Herring by the same Circuit in Hudson v. State of Alabama, 493 F.2d 171 (5th Cir. 1974), wherein the Court stated:

Under the standards of this circuit, Hudson was entitled to counsel reasonably likely to render and rendering reasonably effective assistance.

(G)

Sixth Circuit

The applicable rule in this Circuit is set forth in an excellent and exhaustive opinion by Judge Celebrezze in Beasley v. United States, 491 F.2d 687 (6th Cir. 1974). Prior to that case, the Sixth Circuit had adhered to the “farce and mockery” test. In 1970, the Supreme Court of the United States handed down its decision in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), wherein the Court held that the advice rendered by an attorney as to whether a confession would be admissible in evidence must be “within the range of competence demanded of attorneys in criminal cases”.

In view of that decision, the Court, in Beasley stated that:

(T)he “farce and mockery” test should be abandoned as a meaningful standard for testing Sixth Amendment claims. 491 F.2d at 693

Further, the Court said with respect to the farce and mockery standard:

(W)e reject it, except as it may be considered a conclusory description of the objective standard we adopt”. Id. at 695

The new standard adopted in the Sixth Circuit is as follows:

(T)he assistance of counsel required under the Sixth Amendment is counsel reasonably likely to render and rendering reasonably effective assistance. It is a violation of this standard for defense counsel to deprive a criminal defendant of a substantial defense by his own ineffectiveness or incompetence. (Citing cases). Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interest, undeflected by conflicting considerations. (Citing cases) Defense counsel must investigate all apparently substantial defenses available to the defendant and must assert them in a proper and timely manner. (Citing cases). Id. at 696

(H)

Seventh Circuit

The Seventh Circuit apparently continues to hold to the farce and mockery rule. United States ex rel. Little v. Twomey, 477 F.2d 767 (7th Cir.1973). See also Thomas v. Pate, 493 F.2d 151 (7th Cir. 1974) and particularly Footnote 4, appearing on page 157 of the opinion.

(I)

Eighth Circuit

The Eighth Circuit appears to hold to a modified version of the farce and mockery rule. In Cardarella v. United States, 375 F.2d 222 (8th Cir.1967), the Court said:

(A) charge of inadequate representation can prevail “only if it can be said that what was or was not done by the defendant’s attorney for his client made the proceedings a farce and a mockery of justice, shocking to the conscience of the Court”. Id. at 230

In Garton v. Swenson, 497 F.2d 1137 (8th Cir. 1974), the Court said:

This Court has not interpreted the “mockery of justice” words, of themselves, to be talismanic. Instead, we have employed them to encompass the principle that a petitioner or appellant bears the heavy burden of proving unfairness. Id. at 1139

In its opinion, the Court cites other cases wherein it has more or less modified its farce and mockery ruling. Pointed out is the fact that the Court in the past has indicated tests based on: “circumstances which demonstrate that which amounts to a lawyer’s deliberate abdication of his ethical duty to his client”; “counsel who exercises that judgment which might be expected of one trained in the law”; or “We have based our decisions concerning the effectiveness of counsel upon the particulars of each. The standard for effectiveness is not easily reduced to precise words capable of rigid application”. Id. at 1140.

In McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974), the Court held:

Stringent as the “mockery of justice” standard may seem, we have never intended it to be used as a shibboleth to avoid a searching evaluation of possible constitutional violations; nor has it been so used in this circuit. It was not intended that the “mockery of justice” standard be taken literally, but rather that it be employed as an embodiment of the principle that a petitioner must shoulder a heavy burden in proving unfairness. (citations omitted) Despite regular critical attacks on the “mockery of justice” standard by commentators, we have adhered to it. Id. at 214

(J)

Ninth Circuit

The Ninth Circuit follows the “farce and mockery” standard. United States v. Steed, 465 F.2d 1310 (9th Cir. 1972).

(K)

Tenth Circuit

The Tenth Circuit holds unequivocally to a standard of mockery, sham or farce. Johnson v. United States, 380 F.2d 810 (10th Cir. 1967).

III.

It is evident from the foregoing survey of the holdings of the various circuits that they are fairly evenly divided. However, the trend appears to be away from the farce and mockery rule, and the better reasoned cases seem to support a more stringent standard. While it necessarily follows that if a criminal trial becomes a farce and mockery because of the conduct of inept counsel, there has been a violation of the Sixth Amendment right to the effective assistance of counsel. However, from that it does not necessarily follow that the representation must be so ineffectual as to make it a farce and a mockery, in order for there to be a violation of the Sixth Amendment right to counsel.

We depart from the farce and mockery standard. All cases adhering to this standard are overruled, pro tanto. We believe a better standard, expressed in the generalities of McMann, supra, is simply whether the advice given, or the services rendered by the attorney, are within the range of competence demanded of attorneys in criminal cases. We would measure that range of competence by the duties and criteria as set forth in DeCoster, supra, and by our own Sixth Circuit case of Beasley, supra. We do not consider it to be either necessary or proper, that we establish any precise nomenclature or that we lay down any specific standards or guidelines. We are content to leave the matter resting on a foundation of reasonable competence as tested by the authorities as herein set out. Trial courts and defense counsel should look to and be guided by the American Bar Association’s Standards relating to the Administration of Criminal Justice in general, and specifically to those portions of the Standards which relate to the Defense Function.

This opinion to this point, has been concerned with the holdings of various federal courts; and therefore, to decisions applying the Sixth Amendment to the Constitution of the United States. Article 1, section 9 of the Constitution of Tennessee provides, in pertinent part:

(t)hat in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; . . .”

The Sixth Amendment to the Constitution of the United States guarantees that in all criminal prosecutions, the accused shall “have the Assistance of Counsel for his defence”.

These two constitutional provisions are identical in import with the result that a denial of the Sixth Amendment right to the effective assistance of counsel is simultaneously a denial of the right to be heard by counsel, as provided under the Constitution of Tennessee.

IV.

We now consider the question of whether privately retained counsel is subject to the same standards of competence as appointed counsel.

In an unbroken line of Tennessee cases, starting with State v. Bomar, 213 Tenn. 699, 378 S.W.2d 772 (1964), and running through Long v. State, 510 S.W.2d 83 (Tenn.Cr.App.1974), our courts have held that the incompetence of privately retained counsel is imputable to the defendant and not to the State. And, therefore, the requisite state action to the successful invocation of defendant’s rights under the Fourteenth Amendment to the Constitution of the United States is absent.

In Davis v. Bomar, 344 F.2d 84 (6th Cir.1965), the Court held in substance, that when counsel is retained by the defendant to represent him in a criminal case, he acts in no sense as an officer of the state; and therefore, there was no constitutional deprivation.

In Woodall v. Neil, 444 F.2d 92 (6th Cir.1971), the same court held that “[ujnder some circumstances, . . . -failure of retained counsel can be such as to deprive an accused of his constitutional right to counsel”. This decision was predicated, in part, on Goodwin v. Cardwell, 432 F.2d 521 (6th Cir. 1970), wherein the Court held that failure of retained counsel to advise a convicted person of his right to appeal constituted a violation of his right to the effective assistance of counsel, warranting federal habeas corpus relief.

It should be stated that there was a strong dissent in Goodwin, and in Roddy v. State of Tennessee, 366 F.Supp. 33 (E.D. Tenn.1973), Judge Wilson took strong exception to the soundness of these latter two cases, but considered himself to be bound by them.

The Eighth Circuit makes no distinction between the constitutional standards to be applied as between retained and appointed counsel. Garton v. Swenson, supra.

In United States v. Marshall, 488 F.2d 1169, 1193 (9th Cir.1974), the Court after observing that one of the reasons advanced for not applying the same standard to retained counsel is the fact that the defendant selects his own counsel, and is bound by what he does, the Court said that this theory:

(B)reaks down in the face of the fact that most criminal defendants who can retain counsel are not in any position to judge the competence of the lawyer whom they hire. They have to take him on faith — in reliance on the fact that he has been admitted to practice. Unfortunately, that fact does not guarantee that he is competent to defend criminal case. Most of the recent cases have held that competence of counsel is to be judged by the same standard, whether counsel be appointed or retained.

In the earlier case of Wilson v. Rose, 366 F.2d 611 (9th Cir. 1966) the Court said:

Appellee’s right was not diminished, nor his remedy barred, for want of - “State action.” Appellee was not charged, convicted and punished by private individuals, but by the State. It was the State which sought to deprive him of his liberty, and he was entitled to the effective assistance of counsel in meeting the State’s challenge. Id. at 615

Further the Court made this significant comment:

It also makes no difference whether counsel was retained or appointed by the court ... Id.

Then the Court holds:

A contrary rule would have the anomalous effect of diminishing only the rights of those who undertake to bear the cost of their own representation, for it is clear that defendants have a remedy if they leave it to the State to compensate counsel. Id. at 616

In Fitzgerald v. Beto, 479 F.2d 420 (5th Cir.1973), the Court declared the law in this circuit to be:

(T)hat the due process and equal protection clauses of the Fourteenth Amendment assure a state defendant effective representation by counsel whether the attorney is one of his choosing or court-appointed . . . Id. at 423

This case is bottomed on the most articulate opinion of the Fifth Circuit speaking through Judge Wisdom, in West v. Louisiana, 478 F.2d 1026 (5 Cir.1973), wherein the Court held that the constitutional standards applied equally in the case of court appointed as well as privately retained counsel. In arriving at this decision, the Court quoted at length from Professor James R. Craig’s article, The Right to Adequate Representation in the Criminal Process: Some Observations, 22 S.W.L.J. 260, 272 (1968) as follows:

Early lower court decisions on effectiveness of counsel often drew distinctions between retained and appointed counsel, with the work of retained counsel being virtually immune from review. That seems now, at least doctrinally, to be a thing of the past. The distinction was supported, or explained, on two discrete grounds. The latter in time was that the state action required to energize the fourteenth amendment prohibitions was not present where review of the work of retained counsel was sought. That concept was subject to the obvious criticism that what was really being claimed was that the trial at the hands of the state was unfair, although caused by something over which the state ostensibly had no direct control. A useful analogy existed in the mob influence cases, where the existence of the requisite state action was not questioned, (citations omitted) Further, the state action theory was attacked by the argument that the necessary state action could be found in the fact that attorneys were licensed by the state. But the state action concept of old, no matter what its past vitality, has little influence today. (Referencing Shelley v. Kraemer and its progeny). Perhaps the more viable explanation of the distinction was the earlier one that referred to a principal-agent relationship between defendant and defender. That explanation was forcefully attacked as simply unrealistic in fact in most cases. Whatever the rationale, if the distinction had not been discarded before Gideon, Massiah, and Escobedo, it would seem now to be effectively foreclosed. (Referencing basis of Gideon that a man is not competent to represent himself at trial and therefore would seem to be incompetent to evaluate his lawyer’s actions). See also Williams, The Twilight of State Action, 41 Tex.L.Rev. 347 (1963).

The language of the Fourth Circuit in' Shiflett v. Commonwealth of Virginia, 433 F.2d 124 (4th Cir. 1970) is appropriate:

The notion that state participation, state action or state default is an essential element of a case for relief in this situation confuses a case in which denial of a right of appeal constitutes a denial of equal protection or a violation of due process with one, like the instant case, in which the right denied is the right to effective assistance of counsel guaranteed by the Sixth Amendment. In the latter case no element of state involvement need be proved to warrant relief. Id. at 127-28

We are persuaded by these cases, and others cited therein, that the Sixth Amendment right to counsel is not necessarily dependent upon state action. We hold that the standards herein discussed, relating to the effective assistance of counsel, apply with equal force to privately retained counsel and counsel appointed to represent the indigent. Constitutional rights are not the exclusive domain of the poor and the profligate.

It is paradoxical indeed, that Tennessee cases discussing this issue have completely ignored Article 1, section 9 of the Constitution of Tennessee, which guarantees the right to effective counsel in the courts of Tennessee. The question of state action is not involved. We abolish all distinction between the quality and character of services rendered by counsel irrespective of the source of their selection, appointment or compensation. All cases contra are overruled.

V.

In the case at bar, petitioner has represented to the Court in his pro se petition, that his attorneys were guilty of grievous acts of misconduct. It would serve no useful purpose to detail these charges in this opinion. Suffice it to say, they were sufficient to raise a serious constitutional question — federal and state — as to the effective assistance of counsel.

The trial judge ruled upon this petition without an evidentiary hearing and without appointing counsel to represent the indigent petitioner. While we do not censure him for doing so in the face of the fact that the two attorneys involved enjoy exemplary professional reputations, and normally practice before the trial judge who most assuredly knows their reputations, the fact remains that it was error to dismiss these charges without an evidentia-ry hearing and without the appointment of counsel.

We do not regard- the allegations as being merely conclusory as held by the Court of Criminal Appeals. Moreover, it must be borne in mind that they were not prepared by counsel, but by a layman unlearned in the law. The allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers, and the test is whether it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. John v. Hurt, 489 F.2d 786 (7th Cir. 1973). We cannot say, as a matter of law, that it appears beyond doubt that petitioner can prove no set of facts entitling him to relief.

The ABA Standards, Post Conviction Remedies, Section 4.4A provide:

(I)t is most desirable to avoid processing of applications for post conviction relief beyond the initial screening of the documents without counsel representing the applicant. Counsel should be provided for pro se applicants unable to afford adequate representation.

Section 4.6 provides:

(A) plenary hearing to receive evidence, by testimony or otherwise, is required whenever there are material questions of fact which must be resolved in order to determine the sufficiency of the application for relief.

The Tennessee Post Conviction Procedure Act, as incorporated in Section 40-3801 et seq. T.C.A., obviously contemplates an evidentiary hearing except in those cases wherein a competently drafted petition and all pleadings, files and records of the case, conclusively show that the petitioner is entitled to no relief. A petition alleging sufficient facts to establish petitioner’s conviction was void because of an alleged denial of constitutional rights, state or federal, necessitates an evidentiary hearing. Moran v. State, 3 Tenn.Cr.App. 118, 457 S.W.2d 886 (1970).

From this day forward we will apply the standards, guidelines and criteria herein set forth.

The judgment of the Court of Criminal Appeals is reversed and this case is remanded to the Circuit Court at Jackson, with instructions to conduct a full eviden-tiary hearing on the issues presented by the pleadings.

FONES, C. J., and COOPER, BROCK and HARBISON, JJ., concur.


source: Caselaw Access Project

author: HARBISON, Justice.

license: Public Domain

text:
    B. F. ACUFF et al., Petitioners, v. Charles A. LANSDELL et al., Respondents.
    Supreme Court of Tennessee.
    May 12, 1975.

      Sam F. Cole, Jr., Memphis, for petitioners.
    Tom P. Mitchell, Memphis, Troy W. Tomlin, Somerville, for respondents.
   OPINION

HARBISON, Justice.

This case involves a controversy over the right to use a remote rural road in Fayette County. The parties are adjoining landowners. The road in question runs from west to east across the farm of Mr. Lansdell, respondent here, approaches the farm of the petitioners Acuff, and then turns northerly to a new public road. In its course it runs along or near the boundary between the two farms.

In prior litigation between these parties in the late 1960s, the Court of Appeals, Western Section, held that the road in question was a public road. Although the road was no longer worked or maintained by the county, the Court of Appeals held that property owners along the right of way continued to have a right to use the road. It was expressly held that the respondent Lansdell was not entitled to place obstructions on the road in question “which is a public road”.

The opinion of the Court of Appeals, filed on September 15, 1968, ordered a suit brought by Lansdell to be dismissed, without prejudice, however, to his right to apply to the Quarterly County Court of Fay-ette County for permission to place gates across the road in question under the authority of T.C.A. § 54-923.

The present suit was filed by the petitioners Acuff on March 3, 1972. Their complaint alleged that they had continued to try to use the right of way after the decision by the Court of Appeals, but that Lansdell from time to time put obstructions in the roadway and at one time actually built a fence, setting a number of posts in the roadway itself. These allegations were sustained by proof, not only from the petitioners but from the respondent. Mr. Lansdell, his wife and one of his daughters all admitted that Mr. Lansdell had set some posts in “one track” of this roadway. Petitioners proved that they were forced to expend $197.15 in labor costs to have obstructions removed from the road.

On January 17, 1972 the Quarterly County Court of Fayette County, against the advice of the County Attorney, passed a resolution purporting to close the road “if this action is legal.” The County Attorney had advised against the action, because a Private Act governing Fayette County puts exclusive jurisdiction to close the road in the County Highway Commission. There has been no action on the part of the County Highway Commission, insofar as the record before us discloses.

Petitioners, in their present action, sought a declaration of the validity of this resolution of the County Court, together with an injunction against Lansdell and the County from further obstructing the road and damages for their expenses previously incurred.

In his answer, respondent Lansdell denied liability, but he also sought a declaration as to the rights of the parties, and specifically as to whether the road should be maintained by the County or as to whether the County should be ordered to classify the road, and a determination as to whether the parties should be permitted to install cattle crossings wherever necessary.

The County Attorney filed an answer on behalf of the county, denying any liability to any of the parties in damages, and taking a somewhat equivocal position with regard to the resolution of the Quarterly County Court. The answer admits the passage of the resolution and admits the applicability of the Private Act in question to Fayette County, placing jurisdiction to close a public road under the County Highway Commission. The answer denies that there was any contempt of court involved or any illegal or arbitrary action taken.

After filing its answer, the County apparently took no further part in this litigation. It has not participated in the appeal.

The case was set for trial on oral testimony in the spring of 1972. As pointed out in the opinion of the Court of Appeals in this case, the testimony is vague and inexact. The parties and witnesses apparently had before them exhibits or maps taken from the previous litigation, but none of these were filed in evidence in the present case, or even identified in the transcript. It is therefore almost impossible for an appellate court to follow the testimony, which involved a serious dispute among all of the witnesses as to exactly where the old road in question lay.

The chancellor who heard the case made some oral statements from the bench at the conclusion of the hearing, but he never entered any sort of decree in the action. After he went out of office, his successor undertook to review the bill of exceptions. He concluded that the Private Act in question placed jurisdiction in the County Highway Commission, and that the purported resolution of the Quarterly County Court was “ambiguous and of no effect.” He held that the oral findings and statements of the previous chancellor were without legal effect in the case. He concluded that the case presented nothing but questions of law, and not issues of fact. Accordingly he dismissed the action entirely, and taxed the costs to the original complainants, petitioners here, disallowed any damages, and held that if any party had any remedy it should be before the County Highway Commission. He held that the status of the road remained as it was when determined by the Court of Appeals in 1968.

Petitioners duly excepted to this judgment and appealed to the Court of Appeals, which filed its opinion in the case on September 12, 1974. After tracing the history of the litigation, the Court of Appeals noted the indefinite and vague testimony in the record, and stated that it could not determine from the record whether or not the respondent had in fact obstructed the road, despite the admissions above referred to. That Court accordingly affirmed the action of the Chancellor in dismissing the suit in its entirety.

This Court does not feel that the equities of the case have been reached by the disposition made in either of the courts below. We are unable to agree that the case presented questions of law only. Apart from the legal effect of the County Court resolution, it is our opinion that the case presents little but issues of fact based upon disputed testimony. There does not seem to be any question, however, but that the respondent Lansdell has in fact placed obstructions in the right of way contrary to the original decree of the Court of Appeals in 1968, and that the petitioners have sustained some damages as a result thereof.

It is our opinion that the petitioners are entitled to injunctive relief and to have their damages assessed. Both parties are entitled to a complete declaration of their rights with regard to this rural road.

While the record is admittedly confusing and difficult, it is our opinion that the cause should be remanded to the trial court for a new trial, if necessary, to establish exactly where the right of way is. The parties should be required to file diagrams, photographs or maps as exhibits to their testimony. The Chancellor may consider the proof already on file and any other proof necessary to determine the location of the right of way unless the parties can agree as to its location. He should then award the petitioners damages against Lansdell at least for the amount which has already been proven, and for any other damages which they may be able to establish. Petitioners should be awarded an injunction against unreasonable interference with their rights of ingress and egress, and the cause should be retained in court for the entry of additional or subsequent orders if necessary. The Chancellor has already concluded that any action with regard to the erection of cattle gaps or the closing of the road must be referred to the County Highway Commission, and neither party has challenged this conclusion on appeal.

All costs of the cause, including the costs on appeal, are taxed to respondent Lansdell. We see no basis for the allowance of counsel fees or punitive damages to petitioners as claimed in their brief.

The judgments of the courts below are reversed and the cause is remanded for such further proceedings as may be necessary.


author: O’BRIEN, Judge.

text:
    William Wiley JONES and Bobby Lee Weatherford, alias, James Robert Woods, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    March 19, 1975.

      Landis Turner, Hohenwald, W. Gary Blackburn, Nashville (on appeal), for plaintiffs-in-error.
    R. A. Ashley, Jr., Atty. Gen., William J. Haynes, Jr., Asst. Atty. Gen., Nashville, Tommy Doyle, Sp. Prosecutor, Linden, Elmer D. Davies, Jr., Dist. Atty. Gen., Franklin, for defendant-in-error.
   OPINION

O’BRIEN, Judge.

Appeal from a jury conviction for burglary in the third degree and sentence to serve not less than six nor more than ten years in the State Penitentiary.

By the first assignment of error defendants contend the trial court should not have allowed testimony regarding charges allegedly pending against them for unrelated crimes, including crimes with which defendant Weatherford was not in fact charged, to be presented to the jury.

Defendant’s brief particularly refers to testimony of a Tennessee Bureau of Identification agent, Richard Wright, who related he was called into the case to assist in verifying the identification of defendants. At this point in the investigation, Jones had produced a fraudulent driver’s license and Weatherford, who had no identification on his person, had given the officers the name, James Robert Woods. The investigation of Jones disclosed that he was a prison escapee from Alabama, and also was wanted by the Tennessee Office of the United States Secret Service. Objection to the admission of this evidence was made on behalf of the defendant. The State sought admission of the testimony on the basis that it was related to the search of the automobile. The Court allowed the testimony to stand because the witness had testified this information was obtained in the course of his efforts to identify the defendants. Jones was wanted on a Federal warrant for possession of counterfeit money. Information obtained from the National Crime Information Center disclosed he would probably be in the company of an individual named Bobby Lee Weatherford. Investigation disclosed that Weatherford and Woods was one and the same person, also wanted as an escapee from Alabama, and on additional Federal charge relating to counterfeit money. This testimony was also objected to on behalf of defendants and was admitted for the purpose of identification.

The admission of this evidence was error.

No objection can be raised to admitting proof of independent crimes when such proof is necessary to establish identity. Harris v. State, 189 Tenn. 635, 227 S.W.2d 8, however such admission must hot be for the purpose of establishing general identity, but only to establish the identity of the accused as the person who committed the offense under investigation. In Am.Jur.2d, Evidence, Section 322, the rule is stated in these words:

“The general rule that evidence of separate and independent crimes is inadmissible to prove the guilt of a person upon trial for a criminal offense is subject to a well-defined exception with respect to the proof of the identity of the accused. In general, evidence of the commission of other crimes is admissible where the sole purpose of such evidence is to establish identity and the evidence is relevant to that issue, and it is not rendered inadmissible by the fact that it tends to show that the accused is guilty of other crimes for which he is not on trial. However, evidence of the commission of another crime is not properly admitted simply for the purpose of identifying the accused unless it is absolutely necessary to establish identification as an element of the crime. Generally speaking, it is only where the identity of the accused is not definitely connected with the offense on trial that other offenses may be introduced to connect and identify him with the case on trial. If the identity of the accused is established by other evidence and is therefore no longer an issue, it is improper to admit evidence of other crimes on the theory of proving identity. It is necessary also, for such evidence to be admissible, that there be such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.”

The identity of the defendants in this case had been accomplished. They were found in possession of the fruits of the burglary. Their identity was positively fixed in connection with the offense on trial. Their identification as escapees from another jurisdiction, or alleged counterfeiters was wholly immaterial, and bore no relevancy to the offense on trial. See Mays v. State, 145 Tenn. 118, p. 141, 238 S.W. 1096; Woodruff v. State, 164 Tenn. 530, 51 S.W.2d 843; Warren v. State, 178 Tenn. 157, 156 S.W.2d 416.

Defendants say it was error to admit evidence linking them to an alleged burglary for which they were not on trial.

Various witnesses testified in regard to the contents of the trunk of the automobile in which defendants were travelling when they were arrested. This evidence included fruits of the burglary from the Linden Drug Store, for which defendants were on trial, as well as articles stolen in a burglary in Lexington, Tennessee. Other witnesses testified that the Family Drug Store in Lexington had been broken into a day or two prior to the Linden Drug Store burglary. They identified some of the items found in the automobile as articles taken in that burglary. The admission of this evidence did not fall into one of the recognized exceptions to the rule regarding the admission of evidence of other crimes. The only relationship which was established was the dates of the burglaries of drug stores in different towns. One burglary was accomplished by tearing a hole in the roof of the store. The other was managed by breaking in the back door. There is no other similarity to show a common scheme or design, nor was either related to the other in any manner in which the proof of one would tend to establish the other. Harris v. State, supra. This assignment must also be sustained.

It is said the trial court erred in permitting- the district attorney general to cross-examine defendant Jones about offenses with which defendant had been charged hut not convicted.

We think the attorney general exceeded the bounds set in Posley v. State, 199 Tenn. 608, 288 S.W.2d 455, however, the cross-examination was made without objection on the part of defendants, and cannot properly be considered here. See Ayers v. State, 3 Tenn.Cr.App. 456, 463 S. W.2d 155; Bryant v. State, Tenn.Cr.App., 503 S.W.2d 955. We mention the matter in order to avoid the same error on retrial.

Defendants say it was error to admit evidence obtained under the search warrant because the warrant did not particularly and specifically describe the things to be seized. Although cases from several other jurisdictions are brought to our attention defendants cite no Tennessee authority for this contention. The complained of portion of the search warrant reads as follows :

“.certain controlled substances, to wit: marihuana, phenobarbital, LSD, heroin, etc., and controlled substances paraphernalia, and possibly other items stolen or otherwise unlawfully in the possession of said Jones and Woods, a better description of which is unknown to the affiant at this time.”

The assignment must be overruled. This issue was discussed in Armstrong v. State, 150 Tenn. 416, 265 S.W. 672, and was well resolved in Lea et ux. v. State, 181 Tenn. 378, 181 S.W.2d 351, in which it was said:

“The annotation in 3 A.L.R., at p. 1519, calls attention to important distinctions applicable here, where we are considering the sufficiency of the description in the affidavit and warrant. It emphasized the distinction, in the first place, between the degree of accuracy required in describing the place to be searched, and that required in describing the property to be searched for. It is said that the place to be searched should ‘be designated with sufficient accuracy to prevent the officer from searching the premises of one person under a warrant directed against those of another, while the description of the property to be seized will vary according to whether the identity of the property, or its character, is the matter of concern.’ (Italics supplied.) The note proceeds to quote: ‘Thus, where the purpose of the search is to find specific property, it should be so particularly described as to preclude the possibility of seizing any other. On the other hand, if the purpose be to seize not specified property, but any property of a specified character which, by reason of its character, and of the place where and the circumstances under which it may be found, if found at all, would be illicit, a description, save as to such character, place and circumstances, would be unnecessary, and ordinarily impossible.’ State v. Nejin, 140 La. 793, 799, 74 So. 103 (1917).
The Annotator, in 74 A.L.R., at p. 1513, after reviewing and quoting from numerous decisions, says that, ‘A general description of the things to be seized as intoxicating liquor is sufficient, it being unnecessary (sic) for the affiant to guess at the various kinds of intoxicating liquor, their quantity, or the character of the apparatus used in their manufacture,’ etc., and again notes the necessity for greater accuracy in designation of a specific thing to be searched for. So it is said in 30 Am.Jur. 537, ‘The accuracy required in describing the premises is not requisite in describing the liquor.’ ”

The affidavit and search warrant in this case set out that defendants were in possession of “certain controlled substances”, .“stolen or otherwise unlawfully in the possession” . There is no doubt that the issuing judge in this case had probable cause to grant the warrant. Lea v. State, supra. Anderson v. State, Tenn.Cr.App., 512 S. W.2d 665. The rule that general searches are unwarranted does not prevent the executing officer, having a search warrant describing property and being lawfully on the premises, from seizing other property he discovers being used in the commission of crime, for after a lawful entry on the premises through a search warrant, the question of whether or not an officer can make an added seizure depends upon its reasonableness. Robertson v. State, 188 Tenn. 471, 221 S.W.2d 520.

The matter of the trial judge declining to permit testimony of a defense witness is foreclosed by our action in this case. The witness had been present at trial. She absented herself from the Court Room during presentation of defendant’s proof, and returned during defense counsel’s argument. The court refused to reopen the proof. A repetition of this occurrence can be avoided by defendants at another trial.

The case is reversed and remanded.

WALKER, P. J., and OLIVER, J., concur.


author: ODOM, Judge.

text:
    Ray Charles FRANKLIN, Appellant, v. The STATE of Texas, Appellee.
    No. 48509.
    Court of Criminal Appeals of Texas.
    June 18, 1975.
    Gerald B. Scheve, Houston, Walter Boyd, Pasadena, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Gerald Flatten, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s. Atty., Austin, for the State.
   OPINION

ODOM, Judge.

The original appeal in this case was dismissed because the sentence was prematurely pronounced. It now appears that the sentence has been properly pronounced and notice of appeal given. The appeal is reinstated.

Appellant was convicted by a jury for the offense of assault with intent to murder with malice and they assessed his punishment at ten (10) years.

The appellant made an application for probation, wherein he swore he had never been convicted of a felony. A requested charge on probation was refused by the court.

The sole ground of error is that the court erred in its failure to instruct the jury on the issue of probation.

Appellant testified that he had previously been convicted for possession of marihuana and had been granted probation. He further testified that the probation had been revoked and that he had appealed from that order of revocation. There was no evidence that appellant had appealed from the judgment of conviction in that case.

In Baker v. State, 519 S.W.2d 437 (Tex.Cr.App.1975), we held that a jury could not recommend probation because the appellant had admitted and the proof showed that he had previously been convicted of a felony, even though the sentence was suspended and appellant was placed on probation. The Court pointed out that the burden of proof is on the accused to establish his eligibility for probation.

In Baker v. State, Tex.Cr.App., 520 S.W.2d 782, the conviction was reversed for failure to charge the jury on probation because the record reflected the defendant’s prior conviction was on appeal and therefore not final. No such facts are present in this case. The fact that Franklin had appealed from the revocation order in his prior conviction did not entitle him to have the jury in this case pass on probation, because such an appeal does not suspend the finality of the prior judgment, for purposes of Art. 42.12, Vernon’s Ann.C.C.P.

We hold that a charge on the issue of probation in the instant case was not required and overrule appellant’s ground of error.

The judgment is affirmed.


author: GREEN, Commissioner. ROBERTS, Judge

text:
    Charles Harold BINGHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 48263.
    Court of Criminal Appeals of Texas.
    June 18, 1975.
    Mary B. Edwards, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Vic Driscoll, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before the court, appellant was convicted of burglary. This appeal was by per curiam opinion dated April 3, 1974, abated because of the erroneous consideration by the trial court for punishment purposes of improperly admitted evidence, and the cause was remanded to the trial court for re-assessment of punishment by a different judge, and for resentencing. A supplemental record has now been filed reflecting that in compliance with the mandate of this Court the trial court, with a different judge presiding, conducted a punishment hearing, heard evidence omitting the objectionable testimony, and assessed punishment at twelve years. Appellant was resentenced, this sentence to run concurrent with that against appellant in a conviction for felony theft (our Cause No. 48,262). He again gave notice of appeal, and this cause is now before us for disposition.

In his sole ground of error, appellant contends that the trial court erred in permitting him to be convicted on both the burglary and felony theft cases, since each grew out of the same transaction.

The record reflects that appellant was tried and convicted simultaneously on two indictments, one charging burglary and the other felony theft, both occurring March 12, 1973. The evidence established that the theft involved property taken in the burglary.

It is well established by statute and case law that where one commits burglary, and after the felonious entry he commits another offense, he may be prosecuted for both offenses, and neither prosecution is a bar to the trial for the other. See Article, 1399, 1400, Vernon’s Ann.P.C.; Warren v. State, Tex.Cr.App., 514 S.W.2d 458; Perkins v. State, Tex.Cr.App., 485 S.W.2d 792; Pena v. State, Tex.Cr.App., 442 S. W.2d 691; Ashcraft v. State, 155 Tex.Cr. App., 229 S.W.2d 813; Cooper v. State, 154 Tex.Cr.R. 182, 226 S.W.2d 122.

Appellant’s ground of error is overruled.

Although not raised by appellant in his brief, we note that punishment at the hearing after remand was assessed at twelve years, whereas the original punishment assessed before appeal was ten years. This increase in punishment raises a constitutional question of due process under the Federal Constitution. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L. Ed.2d 138. The constitutional question requires our review in the interest of justice. See Article 40.09, Sec. 13, Vernon’s Ann. C.C.P.; Ellis v. State, Tex.Cr.App., 502 S. W.2d 146; Duckett v. State, 454 S.W.2d 755. For collateral review on habeas corpus where the question was not raised on original appeal, see Ex parte Bowman, 523 S.W.2d 677, (Tex.Cr.App.1975).

The trial of this cause on its merits was conducted by a visiting judge sitting for the regular judge of the 176th District Court. The punishment hearing after remand was conducted by the regular judge of the court. The record reflects that he was familiar with the former proceedings, and knew that the penalty appealed from was ten years; in fact, he mentioned that fact in his preliminary remarks in calling the proceedings to trial.

In Ex parte Bowman, supra, we quoted from North Carolina v. Pearce,' supra, as follows:

“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” (Emphasis added)

See Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, in which the Supreme Court reaffirmed the doctrine of Pearce where the punishment is assessed by the judge, but held that a higher punishment assessed by a jury at a second trial does not “offend the Due Process Clause so long as the jury is not informed of the prior sentence, and the second sentence is not otherwise shown to be a product of vindictiveness.” See Fairris v. State, Tex.Cr.App., 515 S.W.2d 921.

The record in the instant case does not contain any factual data on which the increased sentence is based so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. Neither does it contain any objective information concerning identifiable conduct on the part of appellant occurring after the time of the original sentencing proceeding which would justify the increase. See Pearce, supra; Bowman, supra.

The appeal is again abated, and the cause is remanded to the trial court for punishment in accordance with the foregoing principles.

Opinion approved by the Court.

ROBERTS, Judge

(concurring).

I concur in the foregoing opinion simply for the purpose of stating explicitly what I believe the Court is saying implicitly. In a case such as this one, where the second judge who is imposing sentence was aware of the proceedings incident to the first sentence, there is a danger of retaliation against a defendant who has successfully attacked his first conviction and sentence. I would expressly hold, therefore, that affirmative reasons based on objective conduct on the part of a defendant since imposition of his first sentence must accompany the imposition of a higher sentence by the second judge. This is consistent with the reasoning applied in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed. 2d 714 to imposition of a higher sentence by a jury aware of a defendant’s first trial and sentence.


text:
    Edgar Allen PRICE, Appellant, v. The STATE of Texas, Appellee.
    No. 50028.
    Court of Criminal Appeals of Texas.
    June 18, 1975.
    Peter D. Williamson, Houston, for appellant.

      Carol S. Vance, Dist. Atty., Phyllis Bell and Jack Bodiford, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This appeal is from a conviction for the offense of deadly assault on a peace officer. Punishment was assessed at 50 years.

Appellant contends that the indictment is fatally defective because it does not allege that the assault was committed “with intent to murder.” We agree.

The record reflects that the offense was committed on October 6, 1973, and the indictment was presented March 25, 1974. The indictment charged appellant under V.T.C.A. Penal Code, Section 22.03 which became effective January 1, 1974, and he should have been charged under Article 1160a, Vernon’s Ann.P.C. The missing element in the new Code which was required under the old Code is “with intent to murder.”

Where a particular intent is a material fact in the description of the offense, it must be stated in the indictment. Bartlett v. State, 11 Tex.App. 500, 2 S.W. 829. Cf. Mears v. State, Tex.Cr.App., 520 S.W.2d 380; Wilson v. State, Tex.Cr.App., 520 S.W.2d 377; Standley v. State, Tex.Cr.App., 517 S.W.2d 538; McCoy v. State, 132 Tex.Cr.R. 45, 102 S.W.2d 206.

The judgment is reversed and the prosecution ordered dismissed.

      . “(a) A person commits an offense if, with a firearm or a prohibited weapon, he intentionally or knowingly causes serious bodily injury to a peace officer in the lawful discharge of official duty where he knows or has been informed the person assaulted is a peace officer.”

      . “A person who assaults a peace officer with intent to murder while said officer is in performance of his official duty, knowing that the person assaulted is a peace officer, is guilty of a felony. ...”


author: DALLY, Commissioner.

text:
    Jose M. ALDANA, aka Raul Salazar, Appellant, v. The STATE of Texas, Appellee.
    No. 50285.
    Court of Criminal Appeals of Texas.
    June 18, 1975.
    James Kirby Read, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., and John P. Bradford, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. Mc-Angus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from an order revoking probation. The appellant was convicted for the offense of attempted burglary on his plea of guilty on April 3, 1974; the court assessed the appellant’s punishment at imprisonment for ten years, suspended the imposition of sentence, and granted probation. On October 14, 1974, the court revoked probation and sentenced the appellant.

One of the appellant’s conditions of probation was, “Do not reenter the United States without prior written notice to this Court and prior written consent from this Court.” A violation of this condition is the only ground alleged in the motion to revoke; the appellant pleaded “untrue.” He urges that the court abused its discretion in revoking probation; he questions the validity of the condition; he contends that it violates Article 1.18, Vernon’s Ann. C.C.P.

Our State Constitution, Article 1, Sec. 20, Vernon’s Ann.St. as well as Article 1.-18, V.A.C.C.P., provides that: “No citizen shall be outlawed, nor shall any person be transported out of the State for any offense committed within the same.”

The State in its brief says that: “It is a matter of common knowledge that the term of probation in question in this case is used in only cases involving illegal aliens who cross the border and commit offenses in Texas. The papers of the case reveal a letter from the Imigration and Naturalization Service dated December 5, 1974, showing that Jose Aldana (appellant) was an alien amenable to deportation.”

It is apparent that both the State and the appellant seek a determination of the validity of this condition of probation; but if we wei;e to make the determination, it would be only an advisory opinion since the evidence is insufficient to show that the appellant has violated this condition.

We will summarize the proof offered to support the allegation for revocation. The appellant was the man granted probation. At 3:35 a. m. on July 28, 1974, private security guards arrested the appellant in the City of El Paso while he was in a truck cab which had a broken vent window. Three other men fled from the truck when the guards approached. The court was requested to take judicial notice “that Mr. Aldana never notified this Court nor did this Court give its written permission and consent for Mr. Aldana to reenter the United States.”

Since the evidence does not show that the appellant was ever outside of El Paso, there is no evidence to show he reentered the United States. Also, there is no evidence that the appellant is an alien. The letter referred to in the State’s brief is not in the record; even if it were, it is doubtful whether the letter would be admissible to prove appellant was an alien.

If we assume, without deciding, that the condition of probation was valid, the evidence does not show that it was violated and does not support the court’s order revoking probation. Therefore, there was an abuse of discretion in revoking probation on this ground. Cf. Williams v. State, 523 S.W.2d 953 (Tex.Cr.App., 1975).

The order revoking probation is reversed and the cause remanded.

Opinion approved by the Court.


text:
    Roy WILLIAMS, aka Luis Gaytan Flores, Appellant, v. The STATE of Texas, Appellee.
    No. 50322.
    Court of Criminal Appeals of Texas.
    June 18, 1975.
    Robert R, Harris, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., and John P. Bradford, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from an order revoking probation. On December 14, 1972, the appellant was convicted for the willful destruction of property belonging to another of the value of over $50. Punishment of imprisonment for ten years was assessed; the imposition of sentence was suspended, and the appellant was granted probation. Only two conditions of probation were imposed. They were (1) that the appellant commit no offense against the laws of this or any other state or of the United States, and (2) “must not reenter without written permission from this Court.”

On August 1, 1974, the State filed a motion to revoke probation. It alleged that the appellant had violated the conditions of his probation as follows:

“On the 24th day of June, 1974, in the County of El Paso in the State of Texas, the said Defendant Luis Gayton Flores, a/k/a Roy Williams, did knowingly and intentionally possess a usuable quantity of marihuana in the amount of under two ounces and furthermore, the above said Luis Gayton Flores, a/k/a Roy Williams, did reenter this country without the prior written permission of the Court.”

On November 8, 1974, the court heard the State’s motion to revoke probation. The motion was read, and the attorney for the appellant pleaded “true.” However, later in the hearing the Court permitted the appellant to withdraw his plea of “true” to the allegation that he had violated the condition of probation by possessing marihuana. Also, the Court permitted the State to withdraw any evidence that might have supported that allegatiqn. The Court then entered the order revoking probation from which this appeal is taken. The sole ground for revocation is that the appellant did knowingly and intentionally reenter this country without the prior written permission of the Court.

Both the appellant and the State have filed briefs concerned with the validity of a condition of probation providing that a probationer shall not reenter the United States without the prior written permission of the Court that granted probation. The briefs discuss the constitutionality and statutory provisions including Article 1, Sec. 20 of the Constitution of Texas Vernon’s Ann.St., and Article 1.18, Vernon’s Ann.C. C.P., which provide:

“No citizen shall be outlawed, nor shall any person be transported out of the State for any offense committed within the same.”

Arguments of whether these provisions apply to aliens and whether they apply to revocation of probation proceedings are made in the briefs. The briefs also discuss conflicts between state and federal authorities concerning the deportation of aliens. Incidentally, there is no proof in this case that the appellant was an alien. Although we are in sympathy with the social problems and frustrations apparent from the briefs and the records in this case and that of Aldana v. State, 523 S.W.2d 951 (1975), our review must be on the records presented.

We hold that the condition of probation in this case is so vague and indefinite that it is not a valid condition of probation. To reiterate, that condition reads: “Must not reenter without written permission from this Court.” It does not say that the appellant must not reenter the United States or this country. Even though it might be possible from the record in this case to find that the appellant had stipulated that he had reentered the United States, there was no condition of probation that he would not reenter the United States. (It is not necessary in this case to decide the validity of such a condition.) Therefore, there was an abuse of discretion in revoking probation. Cf. Aldana v. State, supra.

The order revoking probation is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    Otis Lee RYAN, Appellant, v. The STATE of Texas, Appellee.
    No. 50018.
    Court of Criminal Appeals of Texas.
    June 18, 1975.
    Ken McLean, Houston, for appellant.

      Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and Carl Conklin, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This appeal is from a conviction for the offense of robbery by assault; punishment was assessed at 12 years.

Appellant brings three grounds of error.

The first and third grounds complain of (1) testimony showing the license plates on appellant’s car were stolen and (2) hearsay testimony from jail cards at the punishment hearing. The record reflects that no objections were made to such testimony, hence nothing is preserved for review.

The second ground complains that the trial court denied a juror’s request that she be allowed to view the appellant at a close range.

The request of the juror is not in the record before us and appears to have been made during a recess in the case, out of the presence of the other jurors and in the presence of the court and attorneys. The events upon which this ground of error is predicated were made to appear in the record by appellant’s counsel taking the stand in the absence of the jury and testifying to their occurrence. The events are reflected by the following testimony:

“Okay, for the record, my name is Sam Maida. I am representing Lee Otis Ryan in this cause and would like to have made a part of the record the fact that one of the jurors, I believe Mrs. Dyke, approached Judge Lee Duggan and myself and the assistant district attorney, Mr. Carl Conklin, and asked the Judge if she could be allowed to take a closer look at the accused in this case, Lee Otis Ryan, so that she would have an opportunity to observe the scars on Mr. Ryan’s face and arms. I would like for the court to make a ruling on this.”

It does not appear that appellant was making a request to reopen under Article 36.02, Vernon’s Ann.C.C.P., inasmuch as appellant’s counsel testified on the issue:

“I didn’t request specifically how it was done. I don’t care how it was done. She [the juror] could go and approach him if she would like. I don’t care how she viewed him. I think her request should be granted since the scars and his description are material evidence in this case in the testimony.”

Later counsel repeated that his request was that the juror be granted her request. It is not within the function or power of the jury or a juror to request or compel the presentation of evidence. Accordingly, it was not error to deny the juror’s request.

The judgment is affirmed.

      . “THE COURT: State again, now, what is the request you would request, Mr. Maida?
      “MR. MAIDA: The request that the juror’s question be granted in her desire to obtain a closer view of the Defendant other than from the jury box and where he is seated.”


author: BREWSTER, Justice.

text:
    KIMBELL, INC., a corporation, d/b/a Kimbell Lubbock Company, Appellant, v. Joe W. BAKER, Individually and d/b/a Baker Food Store, Appellee.
    No. 17618.
    Court of Civil Appeals of Texas, Fort Worth.
    May 16, 1975.

      Ungerman, Hill, Ungerman, Angrist, ■Dolginoff & Teofan, and R. C. Holloway, Fort Worth, for appellant.
    Frederick P. Durant, Plainview, for ap-pellee.
   OPINION

BREWSTER, Justice.

This is a venue matter.

The case was an action on a sworn account brought by the plaintiff, Kimbell, Inc., against the defendant, Joe W. Baker. The action was based on three sets of invoices. One of the invoices in the first group was issued by the plaintiff direct to the defendant each time the plaintiff sold and delivered a bill of groceries to defendant at his grocery store. Nearly all of the invoices in this group bore the signature of an employee of defendant who signed the invoice at the time plaintiff's employees delivered to defendant’s store the groceries listed on that invoice. On the face of each of those signed invoices in that first group was written an agreement by the buyer to pay the seller at his office in Tarrant County, Texas, for such merchandise.

The second group of invoices were issued by Bell Dairy Products, Inc. to defendant in connection with dairy products allegedly delivered to defendant by Bell Dairy Products, Inc. These invoices did not contain an agreement as to where they were to be paid.

The third group of invoices were issued by Mrs. Baird’s Bakeries direct to defendant each time they delivered bakery products to defendant. None of this group of invoices had an agreement thereon as to where they were to be paid.

Plaintiff’s sworn account was composed of allegedly unpaid items from all three of these groups of invoices. A large part of the account sued on was composed of items from the first described set of invoices, on which the defendant, in writing, agreed to pay for the items thereon described in Tar-rant County. The suit was therefore brought in part by reason of the written obligation contained in the first group of invoices on which defendant had, through his employees, agreed to pay for the groceries he bought in Tarrant County.

Plaintiff contended that it purchased from the dairy and bakery the goods that are listed on the second and third groups of invoices, and that it paid the bakery and dairy for such items at the time they were delivered by the bakery and dairy to. the defendant. Plaintiff then billed the defendant for that merchandise.. It claimed these were handled that way by virtue of an agreement between plaintiff and defendant. This is plaintiff’s theory as to why it contends that defendant is liable to it for the amount of the invoices sued on that compose the second and third groups of invoices listed above.

The defendant filed a plea of privilege to be sued in Hale County where he lived. In its controverting plea, plaintiff had alleged the contracts in writing on the grocery invoices (the first described group) whereon the defendant had agreed to pay for those groceries in Tarrant County, and contended that by reason of such written agreements it was entitled to keep venue of the entire suit against defendant in Tar-rant County, Texas, under Subdivision 5 of Art. 1995, Vernon’s Ann.Civ.St.

At the conclusion of the‘venue hearing the trial court rendered an order sustaining the plea of privilege to' that part of the suit which concerned items allegedly sold to defendant that originated from Bell Dairies and Mrs. Baird’s Bread. The court ordered that part of the case that involved those items transferred to the District Court of Hale County. In the same order the court overruled defendant’s plea of privilege as to that part of the case that concerns the items allegedly sold defendant by plaintiff, as reflected on the plaintiff’s own invoices. The effect of the court’s action was to sever a part of the case and transfer it to Hale County and keep the other part in the Tarrant County Court.

This appeal is by the plaintiff from only that part of the Court’s order that sustained defendant’s plea of privilege as to a part of the case sued on and ordered it transferred to Hale County.

We reverse the trial court’s decree sustaining defendant’s plea of privilege as to a part of the case and ordering it transferred to Hale County, and here render judgment decreeing that defendant’s entire plea of privilege be overruled.

A plaintiff seeking to sustain venue in the county of suit under Subd. 5 of Art. 1995, V.A.C.S., is not required to prove at the venue hearing that he has a cause of action against the defendant. All that he has to prove is that the defendant or his duly authorized agent has contracted in writing to perform the obligation involved in the county of suit. Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S. W.2d 698 (1942, opn. adopted).

The plaintiff made this necessary proof at the venue hearing in so far as the part of the case involving the first group of invoices is concerned.

It is well settled that invoices signed by a buyer that recite therein that payment is to be made in a county expressly named are contracts in writing within the meaning of Subdivision 5. Drexler v. Bryan Building Products Company, 374 S. W.2d 806 (Waco, Tex.Civ.App., 1963, no writ hist.).

The defendant has made no complaint of the court’s action in overruling the plea of privilege in so far as it pertains to that part of the case and there is no appeal from that part of the decree.

The venue of the plaintiff’s action to recover on the first group of invoices listed above (the ones containing the agreement to pay for the items in Tarrant County) was in the county of suit by virtue of Subdivision 5, Art. 1995. The court so held and no one questioned that ruling. In order to avoid a multiplicity of suits, the plaintiff had the right to include in this same suit his action for a recovery on the second and third groups of invoices listed above. Many cases support this holding. Some of them are: Middlebrook v. David Bradley Manuf’g Co., 86 Tex. 706, 26 S.W. 935 (1894); Warner v. Goldman, Lester & Co., 117 Tex. 145, 298 S.W. 890 (1927, opn. adp.); C. & S. Sporting Goods Co. v. Brady Ind. School Dist., 54 S.W.2d 1033 (Austin, Tex.Civ.App., 1932, no writ hist.); Stevens v. Willson, 120 Tex. 584, 39 S.W.2d 1088 (1931); Eppen-auer v. Hoffmann, 115 S.W.2d 478 (East-land, Tex.Civ.App., 1938, no writ hist.), and Dickson v. Klett, 211 S.W.2d 381 (Galveston, Tex.Civ.App., 1948, mand. overr., wherein the point involved here is fully discussed).

The trial court’s order does not reveal the reasons for his decision, but defendant’s brief which he furnished to the trial court, although not a paper filed in the clerk’s office, did some way get into the transcript and it reveals the argument advanced to the trial court in an effort to persuade him to rule the way that he did.

One such argument was that if plaintiff is the owner of the parts of the cause of action that arose out of defendant’s purchase of dairy products and bakery products from Bell Dairy Products, Inc., and Mrs. Baird’s Bakeries, it must necessarily have become the owner thereof by virtue of an assignment of the cause of action to it by Bell Dairy Products, Inc. and Mrs. Baird’s Bakeries.

Defendant’s argument continued that, since plaintiff became the owner of that part of its cause of action by an assignment of transfer, venue of that part of the case cannot be kept in Tarrant County because of the express provisions contained in Subdivision 4 of Art. 1995, V.A.C.S., which provides: “Defendants in different counties. — If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. The transfer or assignment of a note or chose in action shall not entitle any subsequent holder to sue thereon in any other county than that in which such suit could have been prosecuted if no assignment or transfer had been made.” (Emphasis added.)

We disagree with that contention and hold that it is without merit. Here we have a single defendant, so no one contends that Subdivision 4 applies here.

In the case before us plaintiff seeks to maintain venue of the entire case in Tarrant County under Subdivision 5 only. The above italicized provisions of Subdivision 4 do not apply to the facts of this case, because they apply only in cases where it is sought to keep venue in the county of suit under Subdivision 4. A case so holding is Wolcott v. Hall, 111 S. W.2d 1140 (Eastland, Tex.Civ.App., 1937, no writ hist.). It follows that the trial court’s ruling complained of here can not be upheld on the grounds that the quoted provisions of Subdivision 4, re assignments of choses in action, compelled that ruling.

The trial court’s decree, in so far as it sustained defendant’s plea of privilege to a part of plaintiff’s case and ordered that part of plaintiff’s case transferred to Hale County, is reversed and judgment is here rendered overruling the defendant’s entire plea of privilege.