author: GUPTON, Judge. ONION, Presiding Judge

text:
    Rosa ELIZONDO, Appellant, v. The STATE of Texas, Appellee.
    No. 51743.
    Court of Criminal Appeals of Texas.
    Nov. 17, 1976.
    Dissenting Opinion On State’s Motion For Rehearing Jan. 19, 1977.
    Thomas Rocha, Jr., San Antonio, for appellant.
    John H. Green, Dist. Atty., Dennis Cadra, Asst. Dist. Atty., Odessa, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GUPTON, Judge.

The offense is delivery of heroin under the Controlled Substances Act; the punishment, assessed by the jury, 99 years.

In the light of our disposition of this case, a detailed recitation of facts is not necessary. Gerald Howard, a Department of Public Safety narcotics agent, testified that he was working undercover in the Midland-Odessa area on April 4, 1974. He went to appellant’s home accompanied by Elmer Don Culp, a heroin addict and paid informer. Culp knew appellant, and after introductions, the heroin purchase was made. Howard testified that he purchased the heroin, whereas Culp and appellant both testified that the purchase was made by Culp and that the delivery was made to Culp.

Due to the conflict in testimony among the three main witnesses, Culp’s credibility, bias, interest and motive became issues during the trial. Tom Barker, an investigator for the district attorney’s office, testified that prior to trial he had interviewed Culp in jail at which time Culp stated “that he [presumably the defense counsel] had put the heat on him . . . and he was afraid he was going to have to lie”.

The district attorney then took the stand and testified that while interviewing Culp the investigator had telephoned the district attorney at home. The prosecutor stated that he heard Culp say that “he would not tell us [the district attorney’s office] what he was going to testify to until he had an opportunity to talk to the man who had subpoenaed him.”

Appellant presents eight grounds of error. Since we have concluded that the case must be reversed and remanded due to improper jury argument, we will discuss only grounds of error one and two. Appellant’s first ground of error alleges that the trial court committed reversible error when it overruled appellant’s objection to the prosecutor’s argument that the jury had to believe the prosecutor and other witnesses. In his second ground of error appellant asserts that the trial court committed reversible error when it overruled appellant’s objection to the prosecutor’s statement that “You just don’t pay me enough to try to come in and convict an innocent person.”

In his closing argument to the jury at the guilt-innocence stage, the district attorney said:

“[DISTRICT ATTORNEY]: I want to, first of all, start off and tell each and every one of you one thing. This case boils down to this, you either believe the agent, you believe my investigator, you believe me, or you believe a heroin seller. Now that is what it boils down to.
[DEFENSE COUNSEL]: Your Honor, excuse me, I have an objection. I object to the jury believing him, they can believe the witnesses as to material facts. [DISTRICT ATTORNEY]: I testified in this case, Your Honor.
TRIAL COURT: He testified in this case. [DEFENSE COUNSEL]: A very minute part, not material witness as to facts.” (Emphasis added)

The trial court overruled defense counsel’s objection and the prosecutor continued:

“[DISTRICT ATTORNEY]: It’s minute to him, when the evidence is that I am listening to one of their star witnesses testify or tell us before he comes to court, I am not going to tell what I am going to testify until I’ve talked to him. Now that has a little bit of bearing on this case . If you think that I have to get up here and lie, on this stand, and send somebody to the penitentiary, you are wrong.
[DEFENSE COUNSEL]: Your Honor, I object to that. He is interjecting his own beliefs as to the validity of this case and I think that is totally objectionable and I move for a mistrial.” (Emphasis added)

Appellant’s objection was again overruled. Still later in his argument, the prosecutor returned to this theme:

“[DISTRICT ATTORNEY]: We can go over this and over it, but it boils down to this, like I say, ladies and gentlemen, I am serious about this. You know, you just don’t pay me enough money to try to come in and convict an innocent person . ” (Emphasis added).

Immediately following the overruling of defense counsel’s objection and motion for mistrial, the prosecutor repeated this argument:

“[DISTRICT ATTORNEY]: What I mean by that, what I mean by that is that my investigator testified, I have testified as to what this star witness said, and it doesn’t mean that much to me, top, side or bottom, and I say this again, referring to that, you do not pay me enough money to come up here and perjure myself and lie on the stand.” (Emphasis added.)

Similar language was held improper argument in Jones v. State, Tex.Cr.App., 520 S.W.2d 755. In Jones, the prosecutor [the same prosecutor involved in this appeal] stated:

“So let me make this clear to each and every one of you, it is important, you don’t pay me enough money to come here and convict an innocent man.”

The majority of this Court found that the argument in Jones was invited by a statement referring to the district attorney’s salary and that it was easy to stand behind the badge of authority. Therefore, although the argument was improper, it did not constitute reversible error because it was invited.

The State argues that the instant case presents invited argument and is controlled by Jones:

“A hint at the tone of the trial set by the defense is revealed when appellant, at the trial’s beginning, tried to place the district attorney’s investigator under the rule. This is becoming an increasingly prevalent (in this area) defensive tactic to keep the prosecutor’s investigator out of the courtroom and away from the witnesses for either side .
The mood of the trial at the onset continued throughout the trial by the defense counsel’s attempt to implicate the State in some sort of contrived plot to intimidate a defense witness .
The district attorney and his investigator were compelled to testify in an attempt to remove the cloud appellant had placed over the State’s position. It was, therefore, appellant’s actions which made the motives of the State and the credibility of the prosecutor an issue, which issue, if left unanswered, could have logically been construed as an admission of sorts

The State does not cite any portion of appellant’s argument to support its contention that the district attorney’s response was invited, and a review of the record does not show that the prosecutor’s argument was so invited. Defense counsel did not discuss the district attorney’s testimony in his brief summary of the evidence and made only passing reference to Barker’s testimony. Looking to the arguments in the context of the complete record, we find only one general statement which could conceivably be construed as an oblique reference to the district attorney’s testimony. This occurred when defense counsel argued the credibility to be given witnesses in general:

“The defense then called Elmer Don Culp. You are, of course, the judges of the credibility of Mr. Culp and every other witness who testified. Their motivation, the reasons for it, whether they are biased or unbiased, and their interest in the case. Of course, everyone who participated as a witness is interested in the case.”

We decline to construe this as inviting the district attorney’s reply argument.

In a concurring opinion in Jones, Judge Odom did not find the prosecutor’s argument to be invited, although he agreed that it did not constitute reversible error. Judge Odom observed that had the prosecutor dwelt on the matter or made a more direct statement of his opinion, then the situation would be different. The complained of argument in the instant case, like the argument in Jones, carried the implication that the prosecutor believed appellant was not innocent. Unlike Jones, however, the complained of statement was made four times in the closing argument and was one of the primary thrusts of that argument. Even if the prosecutor’s argument could be construed as invited by the “tone of the trial”, his response went far beyond a legitimate reply. Boyde v. State, Tex.Cr.App., 513 S.W.2d 588; Stein v. State, Tex.Cr.App., 492 S.W.2d 548.

Although the district attorney did testify briefly at the trial, it does not follow that he may then argue to the jury that' they should believe him and the two other witnesses rather than a heroin seller. Such argument is impermissible because it conveys to the jurors that the prosecutor has a basis for his conclusions in addition to the evidence they have before them. Fowler v. State, Tex.Cr.App., 500 S.W.2d 643.

Although not cited in appellant’s brief, we note other instances of questionable argument in both phases of the trial; attacks on counsel; and attempts to circumvent the trial court’s ruling. We recognize that this trial was conducted in a spirited and aggressive fashion, but in light of the punishment assessed, it is reasonable to assume that the prosecutor’s argument had a cumulative negative effect and was calculated to deprive appellant of a fair and impartial trial.

The judgment is reversed and the cause remanded.

ONION, P. J., and DOUGLAS, J., dissent.

ONION, Presiding Judge

(dissenting on State’s Motion for Rehearing).

The majority overrules the State’s motion for rehearing. I dissent.

The appeal is from a conviction for delivery of heroin wherein the jury assessed punishment at ninety-nine (99) years. On original submission the cause was reversed because of the District Attorney’s jury argument.

The indictment charged that the delivery of heroin was made to Gerald Howard.

The facts will be discussed briefly. Gerald Howard, undercover narcotics agent for the Department of Public Safety, went to the appellant’s home in Ector County on April 4, 1974. He was accompanied by Elmer Don Culp, a heroin addict and paid informer. Culp introduced Howard to the appellant and Howard testified he purchased one-half gram of heroin from appellant for $35.00. The chain of custody was established and the chemist testified the substance delivered to him was heroin.

The defense then called Culp, who testified that the heroin was delivered to him, not Howard, and he paid for the same though he acknowledged that Howard was with him. The appellant Elizondo then testified that she had delivered the heroin to Culp, not Howard, because she felt sorry for Culp because he was sick.

Tom Barker, District Attorney’s investigator, testified that when he learned Culp had been subpoenaed by the defense he went to the jail where Culp was confined. He related, without objection, that Culp told him he had been threatened and he couldn’t help it and he was going to lie; that “the sale went down righteous,” but he couldn’t help it. Barker said Culp indicated he had been threatened by “some people in jail” and didn’t know “how much axe” appellant’s defense counsel had and that he was going to have to talk to such attorney and was afraid he was going to have to lie.

John Green, District Attorney, testified, without objection, Barker called him from the jail and he heard Culp in the background saying “he would not testify the facts” and that “he would not say anything until he talked to the lawyer to see what he was going to say.”

The court charged the jurors that they could not convict unless the jury believed beyond a reasonable doubt that the delivery of heroin was made to Gerald Howard, and if they had a reasonable doubt thereof they should acquit. In addition, the court instructed the jury that if they believed the delivery was made to Culp then they should acquit, or if they had a reasonable doubt thereof they should acquit.

With that background, we now turn to appellant’s contentions. First, he contends the “trial court committed reversible error when it overruled defendant’s objection to the prosecutor’s argument that the jury had to believe the prosecutor and other witnesses.”

At the guilt stage of the trial and prior to the complained of argument, appellant’s counsel told the jury in argument that they were the judges of the credibility of Culp “and every other witness who testified. Their motivation, the reasons for it, whether they are biased or unbiased, and their interest in the case.” He then argued, “The real question is, ‘Was the delivery made to Mr. Howard, or was it made to Mr. Culp?’ because, you see, for whatever reason, if the delivery was made to Mr. Culp, then you must find the defendant ‘Not Guilty.’ ” He continued to stress that the real issue was to whom the delivery had actually been made, and that of the three persons present at the time of the delivery two of them under oath had stated that the delivery had been made to Culp, not Howard.

The record reflects the following at the outset of the District Attorney’s closing argument at the guilt stage of the trial:

“ . . . This case boils down to this, you either believe the Agent, you believe my investigator, you believe me, or you believe a heroin seller. Now, that is what it boils down to.
“MR. ROCHA: Your Honor, excuse me, I have an objection. I object to the jury believing him, they can believe the witnesses as to material facts.
“MR. GREEN (District Attorney): I testified in this case, Your Honor.
“THE COURT: He testified in this case.
“MR. ROCHA: A very minute part, not material witness as to facts.
“THE COURT: I will overrule your objection.
“MR. ROCHA: Please note my exception.”

While attorneys in a case should avoid becoming fact witnesses whenever possible, and while the complained of argument tended to magnify the importance of the District Attorney’s own unobjected to testimony, the argument in essence merely restated the issue framed by the evidence and the charge and emphasized by the prior argument of appellant’s counsel — that is, to whom was the heroin delivered? The prosecutor clearly had the right to argue the very issue before the jury and to respond to the defense argument. Under these circumstances no error is presented. Further, on appeal appellant argues that the District Attorney’s testimony was hearsay and was inadmissible, but he acknowledges that it came in without objection. He urges that the argument of the prosecutor served to bolster the credibility of his witnesses by unsworn testimony. This, of course, is not the objection urged at the time of trial. His reliance upon Caka v. State, 165 Tex. Cr.R. 35, 302 S.W.2d 939 (1957), is misplaced. The difference between the argument there and here is clear.

Next, appellant contends the trial court committed reversible error when it overruled the objection “to the prosecutor’s statement that ‘You just don’t pay me enough to try to come in and convict an innocent person.’ ”

During the guilt stage of the trial the District Attorney argued that defense counsel would not have subpoenaed Culp unless he knew as to what Culp would testify. The record then reflects:

“MR. GREEN: And that is common sense. You know, every time we get in a narcotics case I feel like I am on trial, I feel like my investigator is on trial, I feel like the narcotics agent is on trial. You know, we are all the ones who get criticized for trying to stop this stuff, keep your eyes off of what we are really talking about, and that is the lady selling heroin in your community. We can go over this and go over it but it boils down to this, like I say, ladies and gentlemen, I am serious about this you know, you just don’t pay me enough money to try to come in and convict an innocent person. “MR. ROCHA: I object to that, Your Honor. I move the jury be instructed to disregard it.
“THE COURT: I will overrule your objection.
“MR. ROCHA: Please note my exception, and I move for a mistrial.
“THE COURT: I overrule your motion for a mistrial.
“MR. GREEN: What I mean by that, what I mean by that is that my investigator testified, I have testified as to what this star witness said, and it doesn’t mean that much to me, top, side or bottom, and I say this again, referring to that, you do not pay me enough money to come up here and perjure myself and lie on the stand.
“MR. ROCHA: I object again, Your Hon- or.
“THE COURT: Overrule your objection.
“MR. ROCHA: Note my exception.’’

It is observed that appellant presented only a general objection each time the “you don’t pay me enough money” argument was made. The appellant at no time called to the trial court’s attention the complaint now made on appeal.

On appeal the appellant contends the argument was not within the realm of proper argument, citing Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973). Appellant urges that the argument made conveyed to the jury the idea that there was a basis for the prosecutor’s conclusion in addition to the evidence before the jury. While counsel may draw reasonable deductions from the evidence, it is not permissible to inject their personal opinions into argument, lest they convey to the jury the idea that they have basis for their conclusions in addition to the evidence before the jury. Fowler v. State, 500 S.W.2d 643 (Tex.Cr.App.1973), and cases there cited. Where such improper argument is made but the objection thereto is sustained and the jury instructed to disregard the argument, the error might not result in reversal. Fowler v. State, supra; Ramos v. State, 419 S.W.2d 359 (Tex.Cr.App.1967).

In Fowler the conviction was reversed because the prosecutor argued: “I am certainly not going to prosecute a man that I don’t feel in my own heart is guilty.” The objection made thereto was overruled.

In Clayton v. State, 502 S.W.2d 755 (Tex.Cr.App.1973), the argument by an Assistant District Attorney that “He (District Attorney) couldn’t pay me enough to come down here and prosecute a man I didn’t know in my heart to be guilty” was held to be reversible error even though only a general objection was made and overruled.

In Jones v. State, 520 S.W.2d 755 (Tex.Cr.App.1975), the District Attorney (the same as in the instant case) made a similar “you don’t pay me enough money to come here and convict an innocent man.” Such argument was held not to be reversible error since it was invited by defense counsel’s argument concerning the District Attorney’s salary and his statement that it was easy to stand behind the badge of authority. Appellant urges that the argument was not invited in the instant case.

In the instant case appellant’s counsel elicited from Culp that the District Attorney’s investigator, Barker, had told him he would be indicted for the same offense as the appellant if he took the stand and testified he had made the purchase of heroin. Culp also testified that Agent Howard had also come to his jail cell and told him what Howard was going to testify to concerning the delivery of heroin and told Culp that if he would support such testimony he (Howard) would see that Culp would be “cut loose” on his pending charges. On cross-examination of the District Attorney defense counsel attempted to establish that in the judge’s chambers the District Attorney had personally told Culp that he would be indicted for delivery of heroin unless he testified that the delivery in question was made to Howard. The District Attorney repeatedly denied that any such statement was ever made, and it was not established by any evidence.

During argument appellant’s counsel attacked the credibility and motivations of Agent Howard, and urged the jury to assess the credibility of all the witnesses, their interest in the case, their motivations. In responding the complained of argument was made. While the argument was unnecessary and should not have been made, it was invited by argument of appellant’s counsel. Further, when taken in context, there is no statement or indication that the District Attorney had other evidence he could not get before the jury or that he had other matters in mind when he made the statement. Such argument did not subvert the rule against the injection into argument of the purely personal opinion of the prosecutor. See Sikes v. State, 500 S.W.2d 650 (Tex.Cr.App.1973). Still further, despite the holding in Fowler, I do not conclude that general objections made were sufficient to preserve any error and call to the trial court’s attention the complaint now urged on appeal so that the court could have taken prompt action to instruct the jury to disregard.

It is observed that the majority in its opinion on original submission combines ground of error # 1 and # 2 and adds additional argument not complained of on appeal in any ground of error in order to reach the conclusion that reversal is necessitated.

I dissent.

DOUGLAS, J., joins in this dissent.

      . With reference to Barker’s testimony, defense counsel stated:
      “Subsequent to that, Mr. Barker was called by the prosecution. He took the stand and he related how he had talked to Mr. Culp, but Mr. Barker did not in any way tell you that he was present when the offense occurred, that the defendant had made any admissions or confessions to him, so in effect, what Mr. Barker related to you, if it had anything to do with this case, it pertained to the testimony of Mr. Culp and the motivation of Mr. Culp.”


source: Caselaw Access Project

author: GREEN, Commissioner.

license: Public Domain

text:
    Robert Earl MADDUX, Appellant, v. The STATE of Texas, Appellee.
    No. 53430.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1976.
    Sanford B. Kahn, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Kenneth W. Sparks, 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.

This appeal is from a conviction for burglary of a habitation with the intention to commit theft. Punishment was assessed at five years. The trial was before the court on a plea of guilty. The sufficiency of the evidence is not challenged.

The indictment contained two counts. In the first count, appellant was charged with having committed burglary of the habitation of Odell Hudson on August 29, 1974, with the intent to commit theft. V.T.C.A. Penal Code, Sec. 31.03(a)(1) and (d)(1). In the second count he was charged with theft of property of Odell Hudson of the value of over two hundred dollars and under ten thousand dollars on August 29, 1974. V.T. C.A. Penal Code, Sec. 31.03(a)(2) and (d)(4)(A). The record reflects that prior to the trial the second count was dismissed by the State, and the case was tried only on the first count.

Appellant’s sole ground of error reads: “The attorney for the State of Texas, in threatening to reindict Appellant under count two of the indictment if Appellant prosecuted an appeal from the judgment and sentence herein, violated Appellant’s rights of due process afforded him under the United States Constitution, Amendments Five and Fourteen.”

The record reflects that on May 22, 1975, at the completion of the trial, the court “upon recommendation of Prosecution” assessed “a minimum term of five years.” Appellant did not waive the ten day period for sentencing, but filed a motion for new trial. This motion was overruled on June 13, and on that date the court pronounced sentence, and advised appellant of his right to appeal. Notice of appeal was given by counsel for appellant. Thereupon, after giving notice of appeal, the following colloquy occurred:

MR. KAHN (Counsel for appellant):

“. . . Furthermore, I would like to put in the record that the Assistant District Attorney, Kenneth Sparks, conveyed to prior to this time that when Mr. Mad-dux placed this case on appeal, in order to deter Mr. Maddux, he stated that he would attempt to reindict Mr. Maddux on a charge resulting from the same act which he is now appealing.
“MR. SPARKS [State]: Could I reply to that for the record, Your Honor?
“THE COURT: Yes, sir.
“MR. SPARKS: At the time we entered the agreement, I agreed to waive the theft count, he would go to the Texas Department of Corrections and serve his sentence, and there would be no appeal at this time. Mr. Maddux has breached his agreement. He has breached the agreement as I received it and I understood it at that time, and only because he has breached and is appealing the plea of guilty am I re-filing the theft case.
“MR. KAHN: May I reply, Your Honor?
“THE COURT: Proceed.
“MR. KAHN: It is my knowledge that such an agreement was not pursuant to anything relating to the appeal. The agreement as I understood it related to the five-year sentence as to the burglary count, and he would waive the indictment on the theft. There was nothing said in reference to breaching the agreement by binding Mr. Maddux not to appeal in either of these cases. Mr. Maddux has the right to appeal if he desires to.
“THE COURT: It will be for the Court of Criminal Appeals to determine this. “You are remanded to the custody of the Sheriff.”

In Fisher v. State, Tex.Cr.App., 511 S.W.2d 506, we said:

“The United States Supreme Court has held that penalizing the exercise of a statutory right of appeal is a violation of due process. States cannot put a ‘price’ on an appeal — the exercise of the right of appeal must be ‘free and unfettered.’ North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).”

See also Cleveland v. State, Tex.Cr.App., 507 S.W.2d 769; Colburn v. State, Tex.Cr. App., 501 S.W.2d 680; Valdez v. State, Tex. Cr.App., 479 S.W.2d 927.

However, there is nothing in the record which indicates in any way that the exercise of appellant’s right to appeal has been penalized or “chilled.” He has exercised that right, and the appeal is now before this Court for our consideration and disposition. The record reflects that he was given credit for all time spent in custody. Cf. Fisher v. State, supra. No extra punishment was assessed because of his exercise of his right of appeal. Cf. Colburn v. State, supra; Cleveland v. State, supra. The record does not indicate that the State has sought to prosecute appellant further on the theft charge.

In the instant case, appellant has appealed, and his appeal is not restricted in any way by any alleged breach of agreement by either party. The instant appeal is not the proper place to challenge the State’s right, if any, to refile the theft charge against appellant.

The ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, J., concurs in the result.


author: DAVIS, Commissioner. ROBERTS, Judge

text:
    Robert Lee WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 53433.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1976.
    Jim Tatum, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge, Harris County Asst. Dist. Atty., and Edward A. Dodd, Asst. Dist. Atty., Houston, 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 theft of property of the value of over two hundred dollars and under ten thousand dollars. Trial was before the court upon a plea of guilty. Punishment was assessed at three years.

In a sole ground of error, it is urged that, “Appellant, after mutual mistake on part of prosecution and defense as to facts which would materially affect the sentence to be imposed, should be allowed to withdraw plea of guilty where the recommendation made by state was to be withdrawn or ignored by the trial court, to wit: The state and the courts should be bound by recommendation whereupon defendant is induced to enter plea of guilty.”

Before accepting the plea of guilty on June 16, 1975, the court admonished appellant in accordance with the requirements of Art. 26.13, V.A.C.C.P. During the course of same, the court asked appellant if he knew what punishment the State was going to recommend, and after appellant responded, “Eight years probation,” the record reflects the following:

“The Court: You know I don’t have to follow that recommendation don’t you?
“The Defendant: Yes, sir.”

At the conclusion of the presentation of the evidence, which included testimony of appellant that he had successfully lived up to the conditions of a prior probated sentence assessed in a statutory rape conviction in 1967 and since then there had not been “any problems at all,” the court found appellant guilty. The State recommended eight years probated. The court followed the desirable practice of ordering a pre-sen-tence report. See Trevino v. State, Tex.Cr. App., 519 S.W.2d 864; Rodriguez v. State, Tex.Cr.App., 502 S.W.2d 13.

When trial resumed on July 16, 1975, the State offered into evidence an investigation report of the Houston Police Department, which reflected that appellant had been charged with the offense of delivery of a controlled substance, diazapan, alleged to have occurred on February 21,1975, in Harris County. The court then inquired if appellant wanted the court to take this offense into consideration in assessing punishment in the instant case. See V.T.C.A., Penal Code, Sec. 12.45. Appellant and his counsel answered in the affirmative and the court stated, “You are going to have to put that in writing, if that’s what you want done, Mr. Prosecutor.” State’s Exhibit No. 3 was then introduced into evidence, in which it was stipulated that appellant, “On Feb. 21,1975, in Harris County, Texas, I did intentionally and knowingly possess & deliver a controlled substance (diazepan) ..” Said instrument, signed by appellant and approved by counsel and the court, further requested that the court consider all the facts set forth in a police report relative to such offense in determining the punishment in the instant case.

Appellant took the stand and admitted that he was guilty of the delivery of the controlled substance on February 21, 1975, but believed that such charge had been dropped because he had cooperated with the police. At the conclusion of the hearing, punishment was assessed by the court for the first time at three years for the instant offense of theft.

The record reflects a motion to withdraw plea of guilty was filed on July 15, 1975, in which appellant alleges that he “did not fully realize the possible consequences and alternatives of his plea.” The docket sheet reflects that such motion was overruled on that date.

On appeal, it is urged that all parties were unaware of the pending charge against appellant and had it been known to either side it would have had a material effect upon their respective positions in plea negotiations.

Before accepting the plea of guilty, the court admonished appellant in accordance with Art. 26.13, supra, that he did not have to follow the district attorney’s recommendation of eight years probated and appellant advised the court that he understood this fact. See Cruz v. State, Tex.Cr.App., 530 S.W.2d 817. Moreover, the prosecutor and defense counsel are without authority to bind the court to a fixed punishment or to probation by plea negotiation. Gibson v. State, Tex.Cr.App., 532 S.W.2d 69. When the matter of the charge of delivery of a controlled substance was brought to the court’s attention, it is observed that appellant requested the court to take this offense into account in assessing punishment, thereby precluding the State from forever prosecuting the offense under Sec. 12.45, supra. As noted in Trevino v. State, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, cited by appellant herein, does not stand for the proposition that the prosecutor’s recommendation of probation pursuant to agreement with appellant should be binding on the court. See Kincaid v. State, Tex.Cr.App., 500 S.W.2d 487.

We reject appellant’s contentions that the court should have withdrawn his plea of guilty and that the court should have been bound by the prosecutor’s recommendation resulting from plea negotiations.

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, Judge

(concurring).

I agree with the majority opinion. I write only to point out that this case is distinguishable from Gibson v. State, 532 S.W.2d 69 (Tex.Cr.App.1976). In this case the appellant agreed to the admission of an unadjudicated offense. Y.T.C.A., Penal Code, Sec. 12.45. By this action, he was put on notice that the trial judge was significantly less likely to follow the prosecutor’s recommendation. Therefore, the trial judge was in no way obligated to grant the appellant’s motion to withdraw his plea. See the dissenting opinion in Gibson v. State, at pages 76-79, to which this writer still adheres.

      . Sec. 12.45, supra, “Admission of Unadjudi-cated Offense,” provides:
      “(a) An individual may, with the consent of the attorney for the state, admit during the sentencing hearing his guilt of one or more unadjudicated offenses and request the court to take each into account in determining sentence for the offense or offenses of which he stands adjudged guilty.
      (b) Before a court may take into account an admitted offense over which exclusive venue lies in another county or district, the court must obtain permission from the prosecuting attorney with jurisdiction over the offense.
      (c) If a court lawfully takes into account an admitted offense, prosecution is barred for that offense.”

      . See Williams v. State, 487 S.W.2d 363.


author: DOUGLAS, Judge. ONION, Presiding Judge

text:
    James R. HOKR, Appellant, v. The STATE of Texas, Appellee.
    No. 51997.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.

      Tom L. Zachry, Fort Worth, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

The prior opinion is withdrawn. On original submission, the Court held that there was insufficient evidence to support the judgment and that a charge must be made by having a valid complaint made before a bond is executed, otherwise, such a bond may not be forfeited. We agree with the State’s contention that the disposition of the second ground contravenes the provisions of Articles 17.05 and 17.20, V.A.C.C.P., and, therefore, the State’s motion for rehearing is granted. We will review the holdings of the original opinion.

The principal on the bond was charged with driving while intoxicated. The complaint and information were filed in the county court of Ellis County. While the bond itself is undated, the record reflects that the bond was executed on July 12, 1975. The complaint, information and warrant were not signed or filed in the cause until July 14, 1975.

Appellant contends that the bond is unenforceable because there was no warrant, complaint or information filed in the cause at the time the bond was executed. He relies on Mayberry v. State, 168 Tex.Cr.R. 537, 330 S.W.2d 203 (1959), which held:

“Where a complaint is filed in the county court, a bail bond taken before the information is filed, will not support a forfeiture. (Citations omitted).”

The express rationale of Mayberry and the eases upon which it relied was that a bail bond taken before. the filing of the information would not bind the parties after its filing, just as a bond taken before return of an indictment would not be binding after its return because no jurisdiction attaches thereto. However, the underlying logic of those eases appeared to be that if a peace officer could not set bail in a felony case, then he could not do so in a misdemeanor case. When Mayberry was decided, Article 17.05, supra, permitted the bond to be “taken from the defendant by a peace officer who has a warrant of arrest or commitment." (Emphasis added). Thus, a peace officer was not authorized to take bail unless he possessed a warrant of arrest or commitment that was validly issued by a court having jurisdiction over the offense. And, of course, the court could not assume jurisdiction unless a complaint or information had been filed in the cause.

Article 17.05 was amended effective August 30, 1971. It now provides:

“[a] bail bond is entered into either before a magistrate, upon an examination of a criminal accusation, or before a judge upon an application under habeas corpus; or it is taken from the defendant by a peace officer if authorized by Article^] 17.20, 17.21, or 17.22.” (Emphasis added).

The Legislature has eliminated the requirement that the peace officer have the accused in custody by reason of a warrant of arrest or commitment. Article 17.20, supra, was also amended in 1971 to provide:

“[t]he sheriff, or other peace officer, in cases of misdemeanor, may, whether during the term of the court or in vacation, where he has a defendant in custody, take of the defendant a bail bond.”

This amendment, enacted simultaneously with the Article 17.05 amendment, eliminates the requirement that the peace officer could take a bail bond only where the defendant was in custody “under a warrant of commitment, warrant of arrest, or capias, or where the accused has been surrendered by his bail . . . .” These changes in the Code destroy the authority of Mayberry and provide that a peace officer may take bail in a misdemeanor case before the accused is formally charged.

Next, we must determine whether a peace officer may set the amount of bail in a misdemeanor case. This determination must hinge on the construction of Article 17.20 which authorizes a peace officer to “take” a bond in a misdemeanor case. A good analysis of that Article is contained in Texas Attorney General’s Opinion No. H— 856 (1976):

“Other sections of the Code differentiate ‘fixing’ and ‘taking’ a bond — for example, article 17.22, dealing with certain felony cases in which a peace officer is allowed to take a bond in such an amount as he considers reasonable, if no amount has been fixed by the court or magistrate. Thus article 17.20, read by itself, would seem not to authorize the officer to set the amount of the bond, but rather to simply allow him to take a bond in an amount already set by some other person. The anomalous result would be that a peace officer could set the amount of the bond in certain felony cases, but not in any misdemeanor cases.
“Article 17.20, however, must be read in conjunction with other sections of the Code of Criminal Procedure. Article 17.-15, prescribing rules for fixing the amount of bail, provides that, ‘The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail. . ’ Article 3.03 defines the general term ‘officers’ as including peace officers. Thus, since article 17.20 authorizes the sheriff or other peace officer to take bail in misdemeanor cases, article 17.15 compels the conclusion that such officer is also to regulate the amount of bail in such cases.”

We reach the same conclusion. We note, however, that an officer’s authority to set the amount of bail should be limited to situations in which no magistrate is available, or in arrests pursuant to a warrant in which the proper magistrate (as specified in Article 15.16, V.A.C.C.P.) is unavailable. In this connection a person arrested when a magistrate is unavailable can be detained until the magistrate’s normal working hours without violating the statutory requirement of an appearance “immediately” or “without unreasonable delay.” See Articles 14.06 and 15.17, V.A.C.C.P. See e. g. Grissam v. State, 403 S.W.2d 414 (Tex.Cr.App.1966). Under these circumstances an officer may set and take a bail bond. This harmonizes with Articles 17.08, Section 5, and 17.09, Section 1, supra, which have been amended to provide that a bond, once given, may bind the defendant throughout the criminal proceeding to appear before any magistrate or court when required. See Ex parte Johnston, 533 S.W.2d 349 (Tex.Cr.App.1976).

We now turn to appellant’s contention that there was insufficient evidence to support the final judgment of forfeiture. The record reflects that the judgment nisi, while being filed in the cause, was never introduced into evidence. Only the bond was introduced. It has been well established that if the judgment nisi is not introduced into evidence, the proof is insufficient to support the final judgment of forfeiture. Fears v. State, 500 S.W.2d 815 (Tex.Cr.App. 1973); Purkey v. State, 494 S.W.2d 541 (Tex.Cr.App.1973). We will not adhere to that rule in the present cause. We hold that the trial court may hereafter judicially notice the judgment nisi in bond forfeiture proceedings.

A judgment nisi is not a final judgment, but rather is in the nature of an interlocutory judgment. See Article 22.02, V.A.C.C.P., and Hernden v. State, 595 S.W.2d 546 (Tex.Cr.App.1974). See also Jackson v. State, 422 S.W.2d 448 (Tex.Cr. App.1968). A judgment nisi will be made final unless good cause is shown why the accused did not appear. Article 22.17, V.A. C.C.P.

McCormick and Ray, Texas Law of Evidence, 2d Ed., Section 185, pages 202-03, sets out the principles governing the records of judicial proceedings in the same or ancillary cases:

“For reasons of convenience and easy verification trial courts usually take judicial notice of the record of proceedings in the same case. Thus it is unnecessary to offer formal proof of such matters as: The institution of a suit, the date of filing of original petition and other pleadings, the contents of the pleadings and previous orders or judgments entered in the same cause. . . . ” (Emphasis added) (footnotes omitted).

This Court recognized and applied that rule in Bridges v. State, 468 S.W.2d 451 (Tex.Cr.App.1971). There, we stated:

“ ‘In criminal cases, the trial court may notice judicially its own records and proceedings, and all judgments entered by the court. Thus, the court may, and indeed should, take judicial notice of the fact that the defendant or a witness has previously been convicted by the court.’ 23 Tex.Jur.2d, Evidence, Sec. 27, pp. 47-48.”

See also Rounsavall v. State, 480 S.W.2d 696 (Tex.Cr.App.1972); Cannon v. State, 479 S.W.2d 317 (Tex.Cr.App.1972); Huffman v. State, 479 S.W.2d 62 (Tex.Cr.App. 1972); and Hardison v. State, 450 S.W .2d 638 (Tex.Cr.App.1970).

Thus, our holding today conforms with well-settled principles of judicial notice. The rule requiring introduction into evidence of the judgment nisi in bond forfeiture proceedings has no sound basis in policy or logic. That the rule reflects a long standing precedent should not preclude its abandonment. As was stated in Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972) (Appellant’s Motion for Rehearing), “even constitutional principles do not emerge as full-blown eternal truths, thus remaining immutable and immune from the process of change.” When a rule fails the test of experience, policy or logic, it should be expressly overruled.

Fleming v. State, 502 S.W.2d 822 (Tex.Cr. App.1973), involved a probation revocation proceeding. Fleming contended on appeal that there was no evidence introduced at the hearing as to the terms of probation. Although conceding that the better practice would be to introduce both the judgment granting probation and the motion to revoke, we held that where the hearing is before the same court and judge who granted probation originally and set the terms thereof the court may take judicial knowledge of the probationary conditions which have been imposed.

We hold that a judgment nisi in bond forfeiture proceedings may be judicially noticed by the trial court thereby eliminating the former requirement that it be introduced into evidence. All cases to the contrary are overruled. The list includes, but is not limited to, the following: Fears v. State, 500 S.W.2d 815 (Tex.Cr.App. 1973); Purkey v. State, 494 S.W.2d 541 (Tex.Cr.App.1973); Morgan et al. v. State, 157 Tex.Cr.R. 117, 247 S.W.2d 94 (1952); Hester et al. v. State, 15 Tex.App. 418 (1884); McWhorter et al. v. State, 14 Tex. App. 239 (1883); Houston v. State, 13 Tex. App. 560 (1883); Moreland v. State, 122 Tex.Cr.R. 452, 55 S.W.2d 1044, 1946 (1933); Nelson v. State, 44 Tex.Cr.R. 595, 73 S.W. 398 (1903); White et al. v. State, 101 Tex. Cr.R. 505, 276 S.W. 274 (1925).

The State’s motion for rehearing is granted; the judgment is now affirmed.

ONION, Presiding Judge

(concurring).

In the instant bond forfeiture case at the hearing on whether the judgment nisi should be made final the judgment nisi was not introduced into evidence. Only the bail bond was introduced by the State. In the appellate record before us is the judgment nisi, regular on its face, signed by the County Judge before whom the aforesaid hearing was conducted.

It is well established that both the bond and the judgment nisi must be introduced into evidence to support a final judgment of forfeiture. See Fears v. State, 500 S.W.2d 815 (Tex.Cr.App.1973); Purkey v. State, 494 S.W.2d 541 (Tex.Cr.App.1973), and cases there cited.

In 7 Tex.Jur.2d Rev., Part 2, Bail and Recognizance, § 81, p. 687, it is written:

“As a prerequisite to a judgment final, the state must prove the allegations of the petition. The bond and the judgment nisi comprise the proof, and a judgment against the obligors in the absence of this proof is not authorized. . . .”

The practice is explained in Hester v. State, 15 Tex.App. 418 (1884), where the court discussed bond forfeiture proceedings by saying:

“. . . It must be remembered, however, that all the proceedings in such cases are ex parte up to the service of the scire facias on the sureties. After such service for the first time have these sureties the right to be heard in the case; and none of the previous proceedings are binding upon them until they have had an opportunity of showing ‘why the judgment nisi shall not be made final.’ By their general denial they say, in effect, to the State, ‘you have no bond.’ The State must meet this denial by producing the bond in evidence, just as the plaintiff is required to produce in evidence his promissory note where the general denial is pleaded to an action upon it. As was said by this court in Houston et al. v. The State, 13 Texas Court of Appeals, 560: ‘A proceeding upon a forfeited bail bond is in effect a suit upon the bond, in which the scire facias serves the purpose of both a petition and a citation. Its foundation is the bond and the judicial declaration of the forfeiture of the bond, which is the judgment nisi. To entitle the State to a judgment final it must prove the cause of action as in a civil suit. This proof is made by, first, the bond, and, second, the judgment nisi declaring its forfeiture.’
“Because the judgments final were rendered without sufficient evidence to support them, the judgment in each of these cases is reversed and each of the cases remanded for a new trial.”

In addition to the proceedings being ex parte up to the service of the scire facias on the sureties, a judgment nisi may not be valid for a number of reasons. A judgment nisi omitting any of the statutory requirements will not support a final judgment of forfeiture. See Article 22.02, Vernon’s Ann.C.C.P., note # 6. For example, the judgment nisi must recite that it “will be made final, unless good cause be shown why the defendant did not appear.” See Article 22.02, supra. “This requirement is mandatory.” 7 Tex.Jur.2d Rev., Part 2, Bail and Recognizance, § 63, p. 672. If there is an absence of such recitation, the judgment nisi will not support a final judgment. Id. Bailey v. State, 22 S.W. 40 (Tex.Cr.App. 1893). Further, the names of all the parties to the undertaking or bail bond are an essential part of the judgment nisi, inasmuch as the judgment must be rendered against the principal as well as against the sureties. A failure to name all the obligors in the judgment nisi is reversible error. Douglas v. State, 26 Tex.App. 248, 9 S.W. 733 (Tex.Ct.App.1888); Fitzgerald v. State, 88 Tex.Cr.R. 268, 225 S.W. 1096 (1920). Further, a variance between the judgment nisi and the bond may be fatal. A variance between the names of the parties to the bond and the names of the parties against whom the judgment nisi is taken is fatal, unless there is a finding that names refer to and describe the same persons. Cooper v. State, 91 Tex.Cr.R. 289, 238 S.W. 658 (1922); Bowen v. State, 413 S.W.2d 915 (Tex.Cr. App.1967); Overton v. State, 413 S.W.2d 920 (Tex.Cr.App.1967). A fatal variance occurs where the offense named in the bond differs from that specified in the indictment and the judgment nisi. Shropshire v. State, 433 S.W.2d 898 (Tex.Cr.App.1968); Morgan v. State, 157 Tex.Cr.R. 117, 247 S.W.2d 94 (1952).

In Morgan v. State, supra, it was pointed out that the variance between the bond and the judgment nisi may be of such a nature and seriousness as to render the judgment nisi defective, and the parties to the bond would be deprived of the right to urge such fatal variance in the absence of an effort by the State to introduce the judgment nisi in evidence.

From the foregoing it is easy to understand why the cases have held that the introduction of a judgment nisi in a hearing to make that instrument final is essential and necessary. It cannot be said, as does the majority, that the rule has no sound basis in policy or logic.

It is, of course, true that generally a trial court can take judicial notice of the judgments and orders entered in the same cause, both civil and criminal.

In 23 Tex.Jur.2d, Evidence, § 26, p. 46, it is written:

“. . .a trial court does know judicially the contents of the record and all prior proceedings in a civil cause that is presently before the court. Thus, the court knows judicially the date on which the suit and the pleadings therein were filed, the contents of the pleadings, whether or not money has been deposited in court, and all previous orders, judgments, and decrees entered in the cause.” (Emphasis supplied.) See also McCormick and Ray, Texas Law of Evidence, § 185, pp. 202-203.

This rule of judicial notice does not appear to make exceptions as to different types of judgments.

This writer has been unable to find any Texas case where this rule of judicial notice has been applied to a judgment nisi in a bond forfeiture proceeding.

The question was raised in Morgan v. State, supra, in a similar situation as in the instant case. There the State did not introduce the judgment nisi into evidence. It was, however, found in the record on appeal. The State urged that the trial court could and would take judicial knowledge of its own judgments and therefore the introduction of the judgment nisi into evidence was unnecessary. The court determined it was unnecessary to pass on the question presented because a fatal variance was observed between the bond and the judgment nisi, and observed, as noted above, that the failure to introduce the judgment nisi prevented the parties to the bond from urging the variance. The cause was reversed for the failure to introduce the judgment nisi.

The rule that the failure to introduce the judgment nisi in evidence is fatal to a valid final judgment of forfeiture should continue to be the rule with the exception or modification that where the final judgment or record reflects the trial court took judicial knowledge of the judgment nisi, not introduced into evidence, and the same is a part of the appellate record and there are no fatal variances between the bond and the judgment nisi, the final judgment of forfeiture can be affirmed without the necessity of reversal.

In the instant case the judgment nisi, although not introduced into evidence, is in the appellate record, shows it was signed by the judge who conducted the subsequent hearing and was filed and made part of the trial court’s records long prior to the hearing. An examination of the judgment nisi reveals no variance between it and the bond, and the appellant has not pointed out any variance. While the trial judge did not say he was taking judicial knowledge of the judgment nisi, the final judgment indicated he did.

While the judgment nisi should have been introduced, I think a reversal under the circumstances of the instant case would be absurd, a mere spinning of judicial wheels. I would establish the above described narrow exception to the rule that the judgment nisi must always be introduced and affirm this case.

In my opinion the majority goes too far in eliminating the requirement that the judgment nisi be introduced into evidence. The effect of the majority’s holding will encourage the State not to introduce the judgment nisi and the court to take judicial notice. We may soon be flooded with appeals where no judgment nisi is introduced, no judgment nisi appears in the appellate record, and a claim of judicial notice is advanced on appeal. Will we have to send for the judgment nisi, if one, and further delay the appeal and the ends of justice?

For the reasons stated, I concur.

      . The writer would apply this new rule prospectively to cases tried after the date of this opinion, but the majority does not agree.

      . Care should be taken to see that judgments nisi are made a part of the appellate record.


author: DALLY, Commissioner.

text:
    Ex parte Albert Donald THOMAS.
    No. 51829.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.
    Stanley G. Schneider, Huntsville, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is a post conviction writ of habeas corpus proceeding. See Article 11.07, V.A. C.C.P.

The petitioner, who was convicted for the offense of involuntary manslaughter, asserts that he was denied the right of appeal. The petitioner gave written notice of appeal within ten days after he was sentenced. He contends that this meets the requirements of Article 44.08, V.A.C.C.P., and regardless of the waiver he made, he was entitled to appeal. The question presented is whether a defendant is bound by his agreement to waive appeal when that agreement is made after judgment of conviction but before the pronouncement of sentence.

The agreement to waive appeal was as follows:

“COMES NOW DEFENDANT, and having been convicted herein, defendant knows he is entitled to ten (10) days in which to file a Motion for New Trial and Motion in Arrest of Judgment, and that he has a right to appeal said conviction to the Texas Court of Criminal Appeals, and Defendant waives his right to said ten (10) days period, waives his rights to file a Motion for New Trial, and Motion in Arrest of Judgment, and waives his right to appeal this conviction. Defendant prays that he be sentenced forthwith.
“/S/ Michael D. Bvck Attorney for Defendant
/S/ Albert D. Thomas Defendant
“The above Waiver of the ten day period to file a Motion for New Trial and Motion in Arrest of Judgment, and Waiver of filing Motion for New Trial and Motion in Arrest of Judgment and Defendant’s Waiver of his right of Appeal are hereby in all things approved by the Court.
“/S/ Don Metcalfe Judge”

The petitioner’s habeas corpus petition was filed in the trial court and the trial judge under the authority of and in compliance with Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967), made findings of fact and conclusions of law which in pertinent part are as follows:

“The Court has reviewed the records of Cause No. F-75-3157-JI and has concluded that a hearing is unnecessary to dispose of the Petitioner’s Application. The Court makes the following findings of fact:
“(1) Petitioner appeared before the Court on May 2, 1975 his counsel being present, and entered a plea of guilty to the charge contained in the indictment, and after having been properly admonished upon the consequences of his plea in the manner and time provided by law, Petitioner persisted in pleading guilty to the charge, and the Court having examined the witness, determined that Petitioner’s plea was knowingly and voluntarily made, the Court accepted Petitioner’s plea of guilty and heard the evidence offered by the State, Petitioner’s signed judicial confession, and determined Petitioner’s guilt upon his plea and the evidence in this case.
“(2) At the conclusion of Petitioner’s trial on the issue of guilt or innocence, the Court considered Petitioner’s written waiver of delay in sentencing, and Petitioner and his counsel being present, proceeded to sentence Petitioner in accordance with the verdict of the Court determining Petitioner’s guilt at ten years in the Texas Department of Corrections.
“(3) In connection with the Petitioner’s waiver of delay in sentencing, Petitioner waived in writing with the consent of his attorney and the approval of this Court Petitioner’s right to file a Motion for New Trial, Motion in Arrest of Judgment, and his right to appeal his conviction to the Texas Court of Criminal Appeals.
“(4) Petitioner’s notice of appeal in writing was filed with the Clerk of this Court on May 8, 1975.
“(5) Petitioner did not obtain the consent of the Trial Court to appeal his conviction.
“The Court makes the following conclusions of law:
“(1) Petitioner waived his right to appeal his conviction to the Court of Criminal Appeals of Texas, Reed v. State, 516 S.W.2d 680.”

We have held that the waiver of the right of appeal made prior to trial, as a matter of law, cannot be knowingly and intelligently made and such a waiver is not binding on defendant. Ex parte Townsend, 538 S.W.2d 419 (Tex.Cr.App.1976). We have also held that a knowing and intelligent waiver of the right of appeal made after a defendant has been sentenced is binding. Ex parte Dickey, 543 S.W.2d 99 (Tex.Cr. App.1976).

More recently in Bailey v. State, 543 S.W.2d 653 (delivered December 1, 1976), we considered a waiver of appeal which appears to be precisely the same as that we are considering here. In that case this Court rejected the appellant’s contention that he had not waived the time for filing a motion for new trial. However, we stated that the appellant was correct with respect to the waiver of his right to appeal and that the waiver of the right to appeal was premature.

We now hold that a defendant is not bound by his agreement to waive appeal which is made after judgment of conviction, but before the pronouncement of sentence.

The appellant’s notice of appeal was timely. See Article 44.08, V.A.C.C.P.

Since the petitioner’s appeal has now been delayed, he should be permitted pursuant to the provisions of Article 40.09, V.A.C. C.P. to perfect his appeal as if notice of appeal were timely filed on the date the mandate is issued by this Court in this proceeding.

It is so ordered.

Opinion approved by the Court.


author: PHILLIPS, Judge.

text:
    Ex parte Donna TURNER.
    No. 52589.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.

      Cleatus M. Phelan, McKinney, Frank Ma-loney and Philip A. Nelson, Jr., Austin, for appellant.
    Tom O’Connell, Dist. Atty. and Verla Sue Holland, Asst. Dist. Atty., McKinney, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is a post conviction habeas corpus proceeding under Art. 11.07, V.A.C.C.P., seeking petitioner’s release from a conviction and five year sentence on December 5, 1973, in the 199th Judicial District Court of Collin County, Texas, for the offense of sale of heroin, which was affirmed by this Court in a per curiam opinion, No. 49,293, decided January 22, 1975. Petitioner filed an application for writ of habeas corpus in said trial court on March 27, 1975, upon which an evidentiary hearing was held in said trial court and record thereof forwarded to this Court. By per curiam opinion said relief requested was denied by this Court on December 8, 1975, but on motion for rehearing we instructed the trial court to conduct an additional evidentiary hearing allowing petitioner to call Duane Hamilton, with the right of both parties thereafter to produce any additional evidence desired. Such has been done and this Court now has before it for consideration said original application, two amended applications, the evidence presented in trial court at the trial court’s initial evidentiary hearing and at said additional hearing, and the trial court’s findings of fact filed at the conclusion of each of said hearings.

Petitioner contends that: (1) Evidence favorable to her defense was suppressed; (2) she was denied the right of confrontation and cross examination of witnesses; and (3) she was denied her right to compulsory process.

The evidence at said hearings reveals that petitioner’s conviction was for selling a narcotic drug, to-wit: heroin, to Robert J. Harden on or about the 18th day of June, 1973, and that the State’s entire proof of said offense by petitioner consisted of the testimony of Harden, an undercover narcotic agent of the Department of Public Safety; that on June 18 petitioner and her husband, Tommy Turner, arrived at Mary Lou Harrington’s house in Plano, where Tommy Turner told Harden in petitioner’s presence that he and she were going to pick up some “jive” and did he want any and they left the house returning later that evening, at which time Harden had another conversation with the Turners wherein petitioner said, “We have some pills left. Do you want them? They are good. One dime pill will get you off real good”; that he, Harden, gave Tommy Turner $110.00 at said time for which he received from Turner eleven pieces of tinfoil containing heroin and that neither Harrington nor Hamilton was present at either of said conversations, and Hamilton was not in any way a party to the offense.

Petitioner testified that on said day, after phone calls to the Turner residence, she and her husband went to the Harrington residence and were met by Mary Lou Harrington; that shortly thereafter Hamilton and Harden arrived; that she saw Hamilton hand her husband Tommy Turner some money, that she heard no conversation, saw and knew of nothing else and made no statements; that she and her husband left the house and proceeded to Dallas, where said Tommy Turner entered someone’s house while she stayed in the car; that they then returned to the Harrington residence, where she was escorted on a tour through the house, and that she had no knowledge of any sale of drugs.

Thus, the guilt or innocence of petitioner resolved itself down to the question of whether the jury believed petitioner or Harden was telling the true story. Since the petitioner carried the heavy onus of an accused’s obvious motive to fabricate, any fact or circumstance from which a juror might reasonably infer motive for said Harden to fabricate or a willingness to do so or that might tend to corroborate petitioner’s version was critical to petitioner’s defense.

Based upon its evidentiary hearings in this habeas corpus proceeding, the trial court made findings of fact that can be summarized as follows:

1. That the State suppressed the fact that Harden effected Hamilton’s release from jail on June 13, 1973, just five days prior to the alleged offense.

2. That Harden deliberately suppressed evidence that he contacted Sgt. Matthews of the Plano Police Department to effect said release of Hamilton from said jail.

3. That said Sgt. Matthews accomplished Harden’s requested release by contacting Assistant District Attorney Dunn and having Dunn sign Hamilton’s bail bond.

4. That said Assistant District Attorney Dunn testified at petitioner’s trial that his making of said bond was at the request of Officer Mock.

5. That he, the trial judge at petitioner's trial, relied on Harden’s denial of the existence of any relationship with Hamilton in denying petitioner the right to call Hamilton as a witness on the ground of Hamilton’s claim of his privilege against self incrimination.

6. That Hamilton’s said Fifth Amendment claim was, in fact, without substance.

Though this Court has the ultimate power to decide matters of fact in habeas corpus proceedings, generally if the trial court’s findings of fact are supported by the record, they should be accepted by this Court. Ex parte Davila, Tex.Cr.App., 530 S.W.2d 543; Ex parte Lemay, Tex.Cr.App., 525 S.W.2d 1; Ex parte Williams, Tex.Cr. App., 486 S.W.2d 566.

The State contends that of the few questions pertaining to Hamilton and Matthews it permitted Harden to answer instead of preventing same by its objections, none of Harden’s answers to same was a specific positive falsehood, but such is not the ultimate issue as to evidentiary support for the findings that the State suppressed the fact of Harden’s effecting Hamilton’s release from jail a few days prior to the alleged offense. Any trier of fact deciding the ultimate issue of State suppression of said fact was entitled to consider the totality of the following evidence and actions of Harden, the Assistant District Attorney who testified in the case, and the witness Sgt. Matthews and all reasonable inference therefrom.

Harden testified that he couldn’t recall the first time he met Hamilton; that he didn’t recall going to the Harrington house with Hamilton on June 18, 1973; that he didn’t recall Hamilton’s making telephone calls on that date; that he couldn’t recall if he conversed with Sgt. Matthews regarding Hamilton on June 18th, 17th or 16th; that Hamilton was not in any way a party to the offense. When asked on cross examination as to whether he had conversed with Sgt. Matthews about Hamilton, the Assistant District Attorney immediately objected on the ground of immateriality and was sustained. On being asked on cross examination whether he recalled any conversation with Sgt. Matthews about Hamilton back through history, the Assistant District Attorney immediately objected upon the ground that such was improper and was sustained. At said trial when Plano Police Sgt. Matthews was asked on cross examination if Hamilton furnished information, the Assistant District Attorney immediately interrupted the question, claiming the privilege to forbid inquiry as to any informer, which claim was sustained by the court, and upon said Sgt. being asked thereafter on cross examination as to whether he made arrangements to get Hamilton out of jail, the Assistant District Attorney objected on the ground such was immaterial and was sustained. Another Assistant District Attorney, Robert Dunn, testified at said trial that he made Hamilton’s bond at the request of a Plano policeman named Johnny Mock, and when asked if such wasn’t unusual for a member of the District Attorney’s staff to make a bond, the Assistant District Attorney immediately objected on the ground that such had nothing to do with the case and was sustained.

The evidence at said evidentiary hearings in this proceeding revealed the true facts to be that said Assistant District Attorney Dunn posted bond for Hamilton at the request of Sgt. Matthews and that Sgt. Matthews so requested same because Harden called him and asked that he do so.

Although at the first evidentiary hearing petitioner presented positive testimony by Sgt. Matthews given at a later trial that it was he who requested Assistant District Attorney Dunn to post bond for Hamilton and the trial court so found same as a fact, neither at said hearing nor at the second evidentiary hearing did the State produce Officer Mock or said Dunn to contradict Matthews’ testimony or explain Dunn’s mistake in regard thereto. Under such set of facts, we must presume that said Officer Mock’s testimony would have verified the testimony of Sgt. Matthews at the subsequent trial which was admitted at the first evidentiary hearing. Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967).

At the last of said evidentiary hearings, Hamilton, after assurance of immunity, admitted his acquaintance with Harden, but very evasively testified that he could not recall: how long he had known Harden; if he was working for Harden as an informant in 1973; whether he was instructed by Harden to call Turner in order to get Turner to buy heroin for him; whether he told Turner that he wanted Turner to buy heroin for him; whether he had a conversation with Turner outside petitioner’s presence; whether he introduced Turner to Harden; whether he was in jail on June 13, 1973, or ever requested Harden to obtain his release; the purpose of his invitation to Harrington’s house or the time and date; his possessing heroin on any occasion or any of his sources of heroin, though he admitted having been an addict; how he got the money to supply his habit; any discussion with Harden concerning his release on June 13, 1973; how his bond was made on June 13, 1973; or any meeting with Harden thereafter.

He admitted that it was possible: that he made telephone calls to Tommy Turner in Frisco and met him at Harrington’s house as a result of the calls; that he and Harden arrived at the Harrington house together; that he’d previously introduced Turner to Harden; that he was working for Harden as an informant during the period in question; that he was an addict (and later said he would not dispute Harden’s testimony that he was an addict); and that he obtained the presence of the Turners at the Harrington house for Harden’s purposes. We hold that the above evidence, actions and omissions of the agents of the State of Texas, considered as a whole, and the facts admitted by Hamilton, coupled with the manner and substance of his evasive answers to other facts, clearly support the findings of the trial court that the State suppressed the fact that Harden effected the release of Hamilton on bail on June 13, 1973, and all other findings by the trial court.

Whether Assistant District Attorney Dunn, who testified that he bonded out Hamilton at the request of one Mock, or the District Attorney O’Connell, who tried petitioner’s case, negligently or by design suppressed the truth ascertained and found by the court at the evidentiary hearing herein, that Dunn made said bond at the request of Sgt. Matthews, is not controlling, for it is the character of the evidence, not the character of the prosecutor, that determines whether suppression of evidence peculiarly within the possession of the State results in constitutional error. U. S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, even without the above rule, we would hold the State and even its prosecutor at petitioner’s trial to be presumptively knowledgeable as to the true facts pertaining to the reason for Hamilton’s release. As stated by the United States Supreme Court in U. S. v. Agurs, supra:

“Nor do we believe the constitutional obligation is measured by the moral culpability, or the willfulness, of the prosecutor. If evidence highly probative of innocence is in his file, he should be presumed to recognize its significance even if he has actually overlooked it.”

And in Giglio v. U. S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972):

“Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.”

Under the Agurs decision, a State is required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution to respond to any specific request by the accused for factual information in the hands of the State or its agents if even a substantial basis for claiming materiality exists, either by furnishing the accused said information or submitting the facts to the trial judge. Defense counsel’s actions in this case so clearly exhibited his desire to obtain from the State and its agents said suppressed facts that they should be deemed not only a specific request, but an urgent plea for their revelation. In Agurs, supra, the Court stated, “When the prosecutor receives a specific and relevant request, the failure to make any response is seldom, if ever, excusable.” We also hold that the suppression here meets the test in Agurs of prejudicial error even in absence of a specific request, for in the context of the entire record the verdict was already of questionable validity and said suppressed evidence would have created a reasonable doubt that did not otherwise exist.

The suppressed facts of Harden effecting Hamilton’s release a few days before the alleged offense would cause all but the most naive to take into consideration that Harden may have been motivated to testify as he did because if it were shown in evidence that he, Hamilton, made the actual purchase, a failure to prosecute him would expose his true status and he also might have been motivated to testify as he did because Hamilton was of value to him, and if petitioner were not locked up in the penitentiary, she might destroy any further usefulness of Hamilton by telling others in the future about his conduct prior to her arrest. Though Harden probably did not make a positive specific misstatement of fact, the jury could obviously have concluded, if said suppressed facts had been revealed, that he knew the facts defense counsel was seeking to find out about and that he was biased to the extent that he was willing to skirt around revelation of the truth he knew was being sought. The law applicable thereto is as follows:

. . [Suppression of material evidence justifies a new trial ‘irrespective of the good faith or bad faith of the prosecution.’ . . . When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule.” (Emphasis added) Giglio v. U. S., supra.
“A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is ‘always relevant to discrediting the witness and affecting the weight of his testimony.’ 3A Wigmore, Evidence § 940, at 775 (Chadbourn rev. 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” (Emphasis added) Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

In addition to being evidence that would tend to establish the above motives for fabricating by Harden and his willingness to dodge revealing the facts he must have known the defense was seeking to discover, said evidence of Hamilton’s true relationship with Harden would also tend to circumstantially corroborate the testimony of petitioner in virtually every phase of her testimony that conflicted with Harden’s.

Though the reasoning of Roviaro v. U. S., 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), that the effect that failure to reveal the name of an informant denies an accused a fair trial when said informant was actually present at the scene of the alleged crime and could give material testimony thereon is respected by this Court, we do not deem Roviaro specifically applicable to this case, since said decision was a direct appeal and involved only the Supreme Court’s supervisory power over evidentiary matters in the Federal Courts and not a constitutional adjudication of the constitutional power of states in enforcement of an informer’s privilege. McCray v. State of Illinois, 384 U.S. 949, 86 S.Ct. 1575, 16 L.Ed.2d 546 (1966). The State’s right to refuse disclosure of the identity of an informant is recognized to protect the informant and his family due to his usefulness to the Government as a necessary tool of law enforcement. However, where the evidence shows an informant was in a position at the time of the alleged crime to likely possess personal knowledge of material facts calculated to be vital to a true determination of innocence of guilt, society’s need of a truthful verdict outweighs its need, in that particular instance, for concealment of the identity of the informer. Common law and statutory privileges, not of constitutional dimension, must yield when in direct conflict with those constitutional rights essential to the concept of Due Process within the Fourteenth Amendment to the Constitution of the United States and further guaranteed in this State by Art. I, Sec. 19 (Due Process) and Art. I, Sec. 10 (Confrontation and Compulsory Process for Witnesses) of the Texas Constitution. Such has been held by the Supreme Court in Davis v. Alaska, supra, as follows:

“We do not and need not challenge the State’s interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender . . . Serious damage to the strength of the State’s case would have been a real possibility had petitioner been allowed to pursue this line of inquiry. In this setting we conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender .
The State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness.”

In Washington v. State of Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), it was said:

“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
******
. The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure attendance of witnesses whose testimony he had no right to use. The judgment of conviction must be reversed. It is so ordered.”
“Few rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

The law is well settled that if Hamilton was actually working at the direction of and in conjunction with Agent Harden, he was acting as a State Agent and his claim of privilege under the Fifth Amendment was spurious. Woodward v. State, Tex.Cr. App., 490 S.W.2d 850. The trial court found as a matter of fact that he would not have granted Hamilton said privilege if he had known the facts subsequently found to have been within the knowledge of the agents for the State at the time of said trial. Thus, the suppression of facts found by the trial court deprived petitioner of the opportunity to call Hamilton to the stand and examine him as to the facts in issue and his true connections with Harden, in violation of her said rights of compulsory process under the Federal and Texas Constitutions. We cannot say that Hamilton would have testified at said time, but if his testimony then had been similar to that at the last evidentiary hearing herein, the impact of his evasions of virtually every question pertaining to his relationship with Harden would have obviously been of benefit to the petitioner.

Furthermore, considering the record as a whole, it appears that the primary question here was not the petitioner’s efforts to obtain the identity of the informer, but was the petitioner’s efforts to prove to the jury the true relationship between the State’s primary witness and a person at the scene, known by the petitioner to be an informer, in order to show said witness’ motives to fabricate, to cross examine him otherwise, and to circumstantially corroborate the petitioner’s version of the facts.

Thus, we concur with the conclusion of the Honorable Trial Court that the suppression of facts found by him to have occurred rendered petitioner’s conviction without due process of law.

Petitioner’s conviction is set aside and she is ordered released to the custody of the Sheriff of Collin County to answer the indictment in Cause No. F73-209R.


author: ODOM, Judge.

text:
    Elvira Lemon VALORE, Appellant, v. The STATE of Texas, Appellee.
    No. 52703.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.

      Fred A. Carver, Michael D. Matheny, Beaumont, on appeal only, for appellant.
    Tom Hanna, Dist. Atty., John R. DeWitt, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

By’ per curiam opinion, this cause was abated to allow the trial judge to hear oral arguments in accordance with Art. 40.-09(11), V.A.C.C.P. This proceeding was conducted and the appeal is now before us for consideration on the merits.

Appellant was convicted of voluntary manslaughter. Her punishment was assessed at ten years’ confinement.

Appellant’s first ground of error asserts that the evidence is insufficient to support the conviction because her voluntary confession was not corroborated by the State. Specifically, appellant argues that the corpus delicti was not established.

In Self v. State, Tex.Cr.App., 513 S.W.2d 832, we stated that the corpus de-licti in a prosecution for murder consisted of two elements: the body or the remains of the body of the victim must be found and identified, and it must be shown that the victim’s death was caused by the criminal act of another.

Our decision in Self, supra, also states:

“Proof of the corpus delicti may not be made by an extrajudicial confession alone, but proof of the corpus delicti need not be made independent of an extrajudicial confession. If there is some evidence corroborating the confession, the confession may be used to aid in the establishment of the corpus delicti.” 513 S.W.2d at 835.

These rules must be applied to the evidence adduced at trial. On July 24, 1974, the deceased, Romie Singleton, was shot as she attempted to leave a vehicle parked on a Port Arthur street. The following day, the appellant went to the police station and made a written statement. The confession portion of this statement reads:

“When I turned the corner at Memphis and 6th St. I saw my car parked in that block with my husband and a woman sitting in it. I pulled the car that I was driving up next to the car that they were sitting in and took my purse and got out of the car and went around to the driver’s side where Joseph was sitting. I don't remember what was said at that time because I was so mad that I could not think clearly. I reached in my purse with my left hand and searched for the gun. I found it and pulled it out and fired one shot at my husband with my left hand while he was sitting in the car. I had never shot a pistol with my left hand before so I don’t know where the bullet went. When I shot Joseph got out of the car and I ran around the back of the car and he chased me. When I got around to the passenger’s side of the car where the ditch was Joseph caught up with me and grabbed me from behind. I saw Romie Singleton getting out of the car and when Joseph grabbed me the gun went off and I saw Romie fall to the ground. Joseph then took the gun away from me.”

Lieutenant Jerry Fontenot, a Port Arthur police officer, testified for the State. He stated that he had heard the shots fired from the gun. Fontenot was on a narcotics stakeout on the night of the offense and was positioned approximately one hundred and fifty yards from the scene of the crime. The officer testified that he did not see the shooting, but that the shots were fired simultaneously.

After hearing the shots, the officer went to the scene of the offense. He recovered the gun from the appellant’s husband and conducted a general investigation of the incident. Appellant had left the scene after her husband recovered the gun from her.

The State also introduced the revolver used by the appellant and photographs of the deceased.

The evidence offered by the State, coupled with appellant’s confession, is sufficient to establish the corpus delicti of the crime. Self v. State, supra. The first ground of error is overruled.

Appellant next challenges the sufficiency of the evidence to show the required culpable mental state.

The indictment alleges that appellant:

“ . . . did then and there intentionally and knowingly cause the death of Romie Singleton by shooting her with a handgun; AND . . ., did then and there, intending to cause serious bodily injury to an individual, Romie Singleton, commit an act clearly dangerous to human life, to wit: did then and there shoot the said Romie Singleton with a handgun thereby causing the death of said individual. ...”

This charging instrument alleges the offense of murder as defined in V.T.C.A., Penal Code Sec. 19.02(a)(1) and (2). The jury found that the appellant committed the offense of voluntary manslaughter because she caused the death “under the immediate influence of sudden passion arising from an adequate cause.” V.T.C.A., Penal Code Sec. 19.04(a). Appellant’s conviction for voluntary manslaughter under Sec. 19.-04(a), supra, can only be upheld if the evidence is sufficient to prove that she committed acts that otherwise would constitute murder under Sec. 19.02(a)(1) or (2), supra, as charged in the indictment.

Initially, we observe that the appellant, in her written statement, did not confess to the offense of murder as charged in the indictment. She confessed to firing at her husband, but she did not confess to intentionally shooting the deceased nor did she state she intended, by her actions, to cause serious bodily injury to to the deceased.

The statements of Fontenot only corroborate the confession to the extent that both his testimony and her written statement assert that two shots were fired.

The evidence admitted to support the conviction consists of:

1.Appellant’s confession, which does not admit the offense charged in the indictment.
2. Appellant’s statement in her confession that she was at the scene of the crime and possessed a revolver.
3. Appellant’s statement in her confession that the revolver in her possession discharged and the victim fell to the ground.
4. Officer Fontenot’s testimony that he heard two shots fired simultaneously. (See footnote 3.)
5. The photographs of the victim, and the physical evidence of the revolver.

This evidence must be reviewed in the light most favorable to the verdict. Murray v. State, Tex.Cr.App., 505 S.W.2d 589.

Two established rules support the conviction. First, the jury is allowed to accept a portion of a witness’s testimony and reject the remaining part. Hemphill v. State, Tex.Cr.App., 505 S.W.2d 560.

The jury in the case at bar was authorized to accept Fontenot’s testimony that the shots were fired one after another. At the same time, the trier of fact in this case had the option of accepting part of the statements made by the appellant and rejecting the remainder. The jury, therefore, could have accepted appellant’s confession that she was at the scene of the crime with a gun in her possession which discharged and felled the victim. And, the jury could have rejected appellant’s statements raising the defense of accident and negating her intention to kill the victim.

The second rule which militates against the overturning of the jury’s verdict concerns the use of a deadly weapon per se. When such a weapon is used, as in the case at bar, a presumption arises that the accused intended to kill the victim. Fentis v. State, Tex.Cr.App., 528 S.W.2d 590.

This presumption and the rules described in Murray and Hemphill, supra, support the verdict of guilty. Officer Fontenot’s testimony and the inculpatory portion of the appellant’s confession negate the theory of accident and support the conclusion of the jury that an intentional killing occurred. We conclude that the evidence is sufficient. The second and third grounds of error are overruled.

Appellant’s next ground of error challenges the trial court’s denial of a motion for mistrial following certain testimony given by Fontenot on redirect examination.

The record reflects the following question and answer:

“Q. Lieutenant Fontenot, Mr. Carver, as part of his cross-examination when asking you your opinion, he made the statement that it was your contention that both shots were fired from the driver’s side. Is that what your investigation led you to believe?
“A. Yes, sir. From everything that I understood in talking to Mr. Valore indicated to me that they were fired from the driver’s side of the vehicle.”

The trial court sustained appellant’s objection to this testimony and instructed the jury to disregard the statement. Appellant’s motion for mistrial, however, was denied.

We hold that the court’s instruction was sufficient to cure any error caused by the unresponsive answer.

In two grounds of error appellant complains of jury argument. She first complains of the trial court’s refusal to grant a mistrial when the prosecutor argued outside the record that the deceased had family and friends in the community.

The court sustained appellant’s objection and instructed the jury to disregard the prosecutor’s statement. This was sufficient to cure the harm, if any, caused by the argument.

She also asserts that reversible error was committed when the prosecutor directly referred to the appellant’s failure to testify.

The record demonstrates, however, that the prosecutor did not directly refer to the appellant’s failure to testify. When read in context, the prosecutor’s statements referred to his inability to obtain eyewitness testimony.

Furthermore, no objection or any other request for relief was voiced by the appellant at this stage in the jury argument. Appellant has failed to preserve error for our review. Heredia v. State, Tex.Cr.App., 528 S.W.2d 847; Sloan v. State, Tex.Cr. App., 515 S.W.2d 913. The grounds of error on jury argument are overruled.

The last three contentions assert error in the jury selection process. It is first contended that the trial court intentionally declined to comply with the statutory procedure provided for formation and selection of the jury. Appellant cites no authority in support of her position, nor does she inform us of what specific statutory procedure was not followed by the trial judge. Indeed, the only specific assertion made by the appellant is that the action of the trial judge was “in direct violation of the Texas Code of Criminal Procedure.”

We also observe that the appellant received no adverse ruling from the trial judge in regard to her objections concerning the formation of the jury. The ground of error is overruled.

The final two grounds of error complain that the trial court erred in excusing, on its own motion, two prospective jurors. A trial court should not, sua sponte, excuse prospective jurors for cause unless they are absolutely disqualified. Pearce v. State, Tex.Cr.App., 513 S.W.2d 539; Henriksen v. State, Tex.Cr.App., 500 S.W.2d 491.

The appellant, however, has not shown how she was harmed by the action of the trial court, nor has she established that she was tried by a jury to which she had “legitimate objection.” Henrickson, supra. No reversible error is demonstrated. The final grounds of error are overruled.

The judgment is affirmed.

      . Although not presented in this case, this element was based upon the provisions of Art. 1204 P.C. (1925), which was repealed with the enactment of the 1974 Penal Code.

      . The entire confession was admitted into evidence. The State introduced the portion not italicized. The italicized portion was introduced by appellant.

      .Fontenot’s offense report did not descrifee tfee time interval between the two shots. The officer testified: “I would say [the shots were] simultaneous, just one right after the other, probably as quick as a trigger could be fired, just BANG BANG.”

      . An instruction concerning accident was given to the jury in the court’s charge.


text:
    Eddie N. JEFFERS, Appellant, v. The STATE of Texas, Appellee.
    No. 53665.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.
    Reynold M. Gardner, Amarillo, for appellant.
    Tom A. Curtis, Dist. Atty., and Morris L. Overstreet, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted in a trial before the court of criminal mischief, a Class A misdemeanor. Punishment was assessed at confinement in jail for three (3) days and a fine of One Hundred Dollars ($100.00); however, the punishment was probated for a period of six months pursuant to Article 42.13, Vernon’s Ann.C.C.P.

An examination of the record reveals that the information fails to charge the offense of criminal mischief as denounced by V.T.C.A., Penal Code Section 28.03. The charging part of the complaint is identical to that of the information. Because the complaint and information are fundamentally defective, the judgment of conviction must be reversed and the complaint and information ordered dismissed.

The information, omitting the formal parts, alleges that appellant, on or about the 15th day of January, 1976, did then and there:

“Intentionally and knowingly damage and destroy tangible property of Alton Goodin, the owner, to-wit: one door and two windows, and did thereby cause pecuniary loss of at least the value of $20.00 but less than the value of $200.00 to said Alton Goodin. . . .”

Because the complaint and information, which purport to allege the offense of criminal mischief, do not allege that the offense was committed without the effective consent of the owner, an essential element of that offense, they are fundamentally defective. Timms v. State, 542 S.W.2d 424 (Tex.Cr.App.1976). It is noted that many times property is destroyed at the request of and with the consent of the owner.

The judgment is reversed and the prosecution ordered dismissed.


author: DOUGLAS, Judge.

text:
    Ex parte Jack David McCLELLAN.
    No. 53936.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.
   OPINION

DOUGLAS, Judge.

This is an appeal from an order of the 140th District Court of Lubbock County in habeas corpus proceeding in which the court continued bail at $50,000.00. Appellant contends this amount is excessive.

Appellant was indicted on October 16, 1975, for murder. The indictment alleges that he shot Carla Sue McClellan and Lori Allison McClellan on October 2, 1975. A stipulation was entered into to the effect that an officer would testify that his investigation revealed that appellant committed the homicides. The circumstances of the offense are not shown. There is evidence that the State was willing to recommend a punishment of seven years’ confinement.

The record reflects that an assistant district attorney originally recommended that bond be set in the amount of $2500.00. The Precinct 6 Justice Court of Lubbock County, however, set bail at $50,000.00. Appellant then instituted this habeas corpus proceeding seeking reduction of bail.

Appellant testified that his wife and daughter were the deceased and that he had turned over all of his property, which consisted of a car, furniture and household goods, to his wife’s relatives. He further stated that all he had left was approximately $175.00 in cash.

He also testified that he had had several employment offers from relatives and if any of' them were accepted he would be able to pay off bond premiums. He stated that he could probably make bond in the amount of $5,000.00.

The testimony about his ability to make bond, however, is not the sole criterion in setting bail. Ex parte Runo, 535 S.W.2d 188 (Tex.Cr.App.1976); Ex parte Sierra, 514 S.W.2d 760 (Tex.Cr.App.1974).

We hold that, under the circumstances of this case, the bail is excessive. Bail is hereby reduced and is set in the sum of $5,000.00.