text:
    Glenn H. HUFFINE et ux., Jo R. Huffine, Appellants, v. John W. RIADON, III, et al., Appellees.
    Supreme Court of Tennessee.
    Sept. 27, 1976.

      Ronald B. Buchanan, Madison, for appellants.
    Carl H. Oldham, Hendersonville, for ap-pellees.
   OPINION

BROCK, Justice.

Although the parties have described this action as one to reform a written instrument, it is, in essence, one by a junior mortgagee to have the lien of a senior mortgage subordinated, in part, to the lien of the junior mortgage, upon grounds that the senior mortgagee by fraudulent representations, induced the plaintiff junior mortgagee to release a prior lien on the property and take a junior lien.

The plaintiffs, Mr. & Mrs. Glenn H. Huf-fine, sold a house and lot to the defendants, William and Juanita Hicks. The purchasers paid $5,000.00 cash, assumed a mortgage loan of $27,500.00, and gave a second mortgage to the Huffines to secure the remainder of the purchase price, $27,567.34. Af-terwards, the Hickses had difficulty in making the payments and sought assistance from Mr. Hicks’ employer, codefendant John Riadon.

Since the summary judgment was based solely upon the complaint and the motion, the transactions between the parties may best be stated by quoting from the complaint:

“(6) On or about July 1,1974, defendant, John W. Riadon, offered to pay plaintiffs $20,000.00 toward their second mortgage to help his employee, William M. Hicks, out during a financially difficult period. Said ofr fer was conditioned upon plaintiffs executing a release on their second mortgage and agreeing to take a third mortgage for the balance then owing them of $10,818.47, so defendant, Riadon, could secure his payment of $20,000.00 with a second mortgage.
“(7) Plaintiffs accepted Riadon’s offer based on the premise that the value of the property was still sufficient to protect the security as to their third mortgage.
“(8) On or about July 9, 1974, plaintiffs did receive the payment of approximately $20,000.00 from defendant, John Riadon, and also received a promissory note of $10,818.47 from William Hicks, et ux., secured by a deed of trust hereto attached as Exhibit D, but not for copy for service of process, and G. G. Garrett, Jr., Trustee under their original second mortgage (sic) to subsequently execute a release thereon, all actions based on the representations of defendant, Riadon. Said deed of trust was taken to the Sumner County courthouse and recorded by defendant, Riadon, upon his suggestion.”

Riadon took from the Hickses and recorded a new second mortgage, not in the amount of $20,000.00, but in the amount of $38,000.00, Riadon having made prior loans to them totaling $18,000.00 for which he now provided security. The Hickses defaulted and Riadon began foreclosure proceedings in November, 1974. He was the sole bidder at the foreclosure sale and purchased the property for $59,500.00. Plaintiffs, upon learning of the amount of the new second mortgage, brought this suit. The relief sought is that the court rearrange the priorities of the liens so that the following order of priority would obtain, to-wit:

1. Costs of foreclosure sale.
2. First mortgage of the Bank of Good-lettsville, in approximate amount of $27,500.00.
3. $20,000.00, only, of the debt secured by Riadon second mortgage.
4. Third mortgage of Huffines in account of $10,818.47 plus interest to date.
5. Balance of debt secured by Riadon second mortgage.

The Chancellor granted summary judgment for the defendants, and the plaintiffs have appealed.

The grounds set forth in the motion for summary judgment may be condensed into four propositions, which are argued on appeal, namely, (1) that foreclosure bars any relief to which the plaintiffs may have been entitled had they acted promptly, (2) that a mortgage may secure a pre-existing debt as well as one contemporaneous with the giving of the mortgage, (3) that the plaintiffs may not obtain reformation of their agreement with Riadon since it was never reduced to writing, and (4) that there was no fraud in the transaction since Riadon made the amount of the Hicks’s obligation a matter of public record by having the instrument recorded.

There is no doubt that a mortgage can be made to secure pre-existing debts. This Court has so decided on several occasions. The question here is not whether the new second mortgage is valid between the parties to it, but whether the enforcement of it in the form it has taken violates the rights of plaintiffs.

Nor is it true that the plaintiffs are seeking reformation of an oral agreement. They are seeking to prove the oral agreement and representations of Riadon and force him to live up to them. The defendants insist that the oral agreement, if it ever existed, is now merged in the mortgage. “As a result,” they conclude, “when the parties entered into a written contract, the writing must be treated as a full, perfect, and correct expression of their intent.” Obviously, there is no occasion for application of the parol evidence rule. Plaintiffs do not seek to vary the terms of a written instrument but to show that they were damaged by the alleged fraudulent representations of Riadon.

We next consider the matter of timeliness of this suit. According to the complaint, the plaintiffs learned on or about November 15, 1974, that foreclosure proceedings were being instituted. Sometime thereafter, they discovered that Ria-don was claiming a lien for $38,000.00 rather than $20,000.00 as he allegedly had represented to them. The amount of the second mortgage, as recorded, was verified by a title search on December 16, 1974. The foreclosure sale took place the next day and the complaint was filed on December 20, 1974. We cannot characterize this as undue delay. There is nothing in the record to show that the Huffines were ever made parties to the foreclosure action, or that, if they were, they were ever apprised that the amount of the claim was not as had been represented. The defendant relies upon cases from other jurisdictions to the effect that any action to reform a mortgage must precede foreclosure. Williams v. Hatch, 38 Ala. 338 (1862); Stephenson v. Harris, 131 Ala. 470, 31 So. 445 (1901); Stewart v. Wilson, 141 Ala. 405, 37 So. 550 (1904); First Nat. Bank v. Wentworth, 28 Kan. 183 (1882); Trachtenberg v. Glen Alden Coal Co., 354 Pa. 521, 47 A.2d 820 (1946). We need not determine the accuracy of that statement because, as already pointed out, this is, actually, not a reformation case at all. The question is not whether the written instrument constituting the new second mortgage reflects the true agreement of the parties to it, the Hicks and Riadon, but to what extent the debt owing to Riadon is entitled to priority over the Huffines’ claim.

The crucial question, then, is whether fraud has been alleged. It is not difficult to believe that the plaintiffs would not have given up their priority of security had they known Riadon would make his second mortgage in the amount of $38,-000.00 rather than $20,000.00. The complaint clearly alleges that plaintiffs were induced to release their second mortgage by the representation and promise of Riadon that he would take a new second mortgage in the amount of $20,000.00. His taking of a second mortgage for $38,000.00, instead of the $20,000.00 as promised and represented, clearly would constitute fraud under the circumstances. Misrepresentation of a material fact by one, whereby the action of another has been induced, is a conclusive ground for relief in equity whether such representation was made innocently, through mistake, or willfully with the intent to deceive. Deadrick v. Mitchell, 65 Tenn. 35 (1873); Aldrich v. Scribner, 154 Mich. 23, 117 N.W. 581 (1908); See also 37 Am.Jur.2d 97-102, 104-109. Furthermore, there can be no doubt of the authority and duty of a court of equity, in a proper case, to reinstate in part or completely, a mortgage lien the release of which has been procured by the fraud of one who stands to profit from the release, at least when the rights of innocent third parties will not be adversely affected by such relief. McBurney v. Carson, 99 U.S. [9 Otto] 567, 25 L.Ed. 378 (1879); Luther v. Clay, 100 Ga. 236, 28 S.E. 46 (1897); 35 A.L.R.2d 948, 953 et seq. Just such a case is alleged in this complaint.

The defendants argue that the fact that the mortgage was publicly recorded charges plaintiffs with notice and ought to conclude the matter. But the plaintiffs had no occasion to search the records. No prior lien is involved. They made no mistake about any defect in the title of which the records would have been constructive notice. Their sole error was to rely on Riadon to carry out the transaction as agreed upon. That in deceiving the plaintiffs he did not conceal his alleged delictions from those who might have occasion in the future to search the records is no defense. We hold that the trial court erred in granting the defendants’ motion for summary judgment. Accordingly, the decree of the Chancery Court is reversed and the cause remanded for proceedings consistent with this opinion. Appellees will pay the costs of this appeal.

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


source: Caselaw Access Project

author: BROCK, Justice.

license: Public Domain

text:
    STATE of Tennessee, Petitioner, v. Don JOHNSON, Respondent.
    Supreme Court of Tennessee.
    Sept. 27, 1976.

      Tom P. Jennings, Asst. Atty. Gen., Nashville, for petitioner; R. A. Ashley, Atty. Gen., Nashville, of cotinsel.
    J. Randall Shelton, Morristown, for respondent.
   OPINION

BROCK, Justice.

I

This is a homicide case arising out of a collision between an automobile operated by the defendant, Don Johnson, and another occupied by the decedents, the Bullion family, a young man, his wife, and their young son. The collision occurred on U.S. HE in Hamblen County when the right front of the defendant’s vehicle struck the left rear of the decedents’ vehicle causing it to go out of control, leave the pavement and knock over some gasoline pumps in front of a roadside combination grocery store and service station, overturn and burst into flames, resulting in the death of the three members of the Bullion family. The defendant was convicted of murder in the second degree and sentenced to a term of not less than 10 nor more than 10 years imprisonment. He appealed to the Court of Criminal Appeals which reversed his conviction upon the ground that the evidence preponderated against the finding of the jury that the defendant had acted with malice, express or implied. That court remanded the case to the trial court for a new trial but recommended that the indictment be dismissed unless the State could present new evidence. The State petitioned this Court for certiorari review which was granted.

II

Before analyzing the evidence to determine whether or not it preponderates against the finding of the jury upon the issue of malice, as found by the Court of Criminal Appeals, we once again look at the criterion by which a defendant’s conduct is to be measured when his operation of an automobile is alleged to have been the means whereby the crime of murder was committed. Malice, either express or implied, is an essential ingredient of the crime of second degree murder in this State. T.C.A. §§ 39-2401 — 39-2403. While some eases have arisen in which the prosecution was able to show a deliberate intent and express malice by the accused to kill the victim by running him down with an automobile, 21 A.L.R.3d 116, Annot.: Murder— Homicide by Automobile, § 12, the more common cases, and the ones which present most of the difficulty, have involved situations in which the requisite malice had to be implied from the surrounding circumstances.

The rule of implied malice, which is still followed by this State, was defined long ago in Tarvers v. State, 90 Tenn. 45, 16 S.W. 1041 (1891), in which this Court stated that an unintentional killing constitutes murder in the second degree, if the death results from a consciously unlawful act done intentionally and with knowledge on the part of the accused that the act was directly perilous to human life. This rule has been applied in a number of cases in which convictions for second degree murder have been sustained and wherein death was the result of the operation of an automobile by the accused. Edwards v. State, 202 Tenn. 393, 304 S.W.2d 500 (1957); Eager v. State, 205 Tenn. 156, 325 S.W.2d 815 (1959); Staggs v. State, 210 Tenn. 175, 357 S.W.2d 52 (1962). In each of these cases, one of the facts established by the State was that the defendant operated the automobile while in an intoxicated condition. But, the rule was also applied in Stallard v. State, 209 Tenn. 313, 348 S.W.2d 489 (1961), in which intoxication of the driver was not an element but the proof showed that the defendant drove an automobile at an excessive rate of speed on the wrong side of a two-lane road at the crest of a hill while engaged in a race with another automobile, thereby colliding head-on with a car approaching from the opposite direction causing death to its occupants. In the Stallard case this Court said:

“The driving of these automobiles at this point, and at the speed mentioned was an unlawful act. ‘And the doing of it was directly perilous to human life’. These young men necessarily knew that. In that situation ‘there is implied (to them) such a high degree of conscious and willful recklessness as to amount to that malignity of heart constituting malice’. An unintentional killing under such circumstances is murder in the second degree. Tarvers v. State, supra; Owen v. State, 188 Tenn. 479, 468-469, 221 S.W.2d 515. “No further discussion as to Stallard, who was driving the automobile that collided with the Dampier automobile, is necessary. He is clearly guilty of murder in the second degree.”

Such is the rule of implied malice sufficient to establish murder in the second degree. We consider it also relevant to keep in mind the rule for determining whether or not a defendant’s operation of an automobile, which brings death to another, amounts to the crime of involuntary manslaughter. This rule was recently stated for this Court by Mr. Justice Harbison, then acting as a Special Justice, in Crawley v. State, 219 Tenn. 707, 413 S.W.2d 370, 372 (1967), as follows:

“This Court has stated several times that: “Where one unintentionally causes another’s death by conduct not amounting to felony and not malum in se but which constitutes gross and culpable negligence, he is guilty of involuntary manslaughter. * * * It is true in such cases allowance must be made for misadventure or accident, as distinguished from culpable negligence; and that, to support a conviction of crime, the accused must have been guilty of a higher and grosser degree of negligence than that which merely suffices to support a judgment in a civil case. Roe v. State, 210 Tenn. 282, 295, 358 S.W.2d 308 (1962), and cases cited therein.
“In the Roe case the Court said:
“ ‘To convict a motorist of homicide by negligence, it is, of course, not enough to prove that he was guilty merely of a want of due care, inadvertence, or inattention, but it must be shown that his negligence in driving was such that he knew or reasonably should have known that it might endanger human life, and that the death charged was the natural and probable result of such negligence. Roe v. State, supra, at 295, 358 S.W.2d 308. See also, Newby v. State, 215 Tenn. 609, 388 S.W.2d 136 (1965).’ ”

III

The defendant was the only eyewitness to the collision, so that, the evidence introduced by the State was all circumstantial in nature. Hal Reid Noe, a State highway patrolman of 43½ years experience, arrived upon the scene of the collision shortly after it occurred. His testimony and photographs introduced by him established that the collision occurred on the Andrew Johnson Highway, U.S. HE at a point west of Morristown and east of Jefferson City. The highway consisted of four lanes, two for west bound traffic and two for east bound traffic, separated by a sizable median strip. Officer Noe found debris, apparently from the collision, located about the middle of the right hand or outside lane of that part of the highway used for west bound traffic at a point almost directly opposite its intersection with a side road called Lakeshore Drive. The white 1964 model Ford automobile — which the defendant had driven — was found approximately 30 ft. west of the debris sitting diagonally in the left hand lane for west bound traffic with its front wheels at approximately the edge of the median strip and the rear wheels back toward the debris and nearer to the line which separates the right and left hand lanes for west bound traffic. He found a ’64 model Chevrolet automobile lying on its top slightly west of some gasoline pumps in front of Perky’s store a few feet off the north side of the highway and west of Lakeshore Drive. The Chevrolet had knocked over the gasoline pumps, and, the gasoline, the Chevrolet and its three occupants were burning. Darrell Bullion, his wife Sue, and his infant son Michael all perished in the fire before rescue could be made. It was apparent that the fire resulted from the collision.

The defendant’s vehicle was found to be damaged on the right front portion thereof, including the fender, bumper, grill and headlight. The Chevrolet bore damage to the left rear corner thereof, indicating that the right front corner of the Ford and the left rear corner of the Chevrolet had come together in the collision. Officer Noe found some markings on the paverpent which he considered to be skid marks and which began in the right hand lane for west bound traffic at a point approximately 160 ft. east of where the debris was found, continuing in that lane to the debris, which as indicated above, was in the middle of said lane, and then veering from the debris to the left a little more than 30 ft. to the front end of the defendant’s vehicle. Officer Noe said that the marks in question bore slightly to the right from the point of beginning to the point of the debris.

Jack Flemón, a police officer for the City of Morristown, testified that at about 5:30 p. m. on the day of the accident, he was traveling in a westwardly direction on U.S. Highway HE at a point just west of Mor-ristown when he saw ahead of him a white Ford automobile proceeding in a westwardly direction at a rate of about 45 miles per hour and the brakes of which were alternately being applied and released frequently in an unusual manner, so that, the officer took down the license number from the vehicle which, after the collision in question, he compared to the number on the license plate on the defendant’s vehicle, and found them to be the same.

The principal witness for the State was James W. May, a young man who lived in the vicinity of the collision. He testified that he was driving his automobile in a westwardly direction along the Andrew Johnson highway and as he reached the Alpha School, which is located about two miles east of the scene of the collision, “. . . there was a lot of racket all at once passed me like that, and I looked up, and there was two cars, one of them behind the other one.” He further testified:

“Q. All right, Sir. Would you describe . what did you recognize or note the name and model and color of the first vehicle that passed you?
“A. I think one of them was red and one of them was white.
“Q. Did you notice which one was which or the manufacturing company’s name?
“A. No, I didn’t pay no attention. The white one was a Ford.
“Q. Was it in front or behind?
“A. It was behind.
“Q. . . . how close were they to each other when they passed?
“A. They were almost glued together, not over two feet apart.
“Q. Not over two feet?
“A. Yes, Sir.”

He testified that he saw a man and woman in the front car and one man in the white Ford. He was then asked:

“Q. Could you estimate the speed of the vehicles at the time they passed you?
“A. ... I was going around 70 when they passed me, and I’ve speeded several times to keep up with these motorbikes to see how fast they are going too, you know, so I just raced mine on down there to see how fast they was going. I got up past 90, and I still hadn’t — to catch them.
* * * * * *
“Q. You got up to 90 miles per hour trying to catch them?
“A. Just past 90, yes sir.
⅜ * * * * *
“A. Well, now I was fairly close behind them, but I couldn’t — as you go down through that dip there in front of the big house at Arrow Hills there is a lot of trees there, so I just missed the side (sight?) of the car. I was back here coming down the hill, and they was going up the other side, so I saw them leaving the hollow like that and then the car was out of my sight on account of the trees and then I saw smoke just rolling like that.
“Q. Was it a matter of seconds?
“A. Just seconds, like that.
“Q. How long was it from the time you saw the smoke go up until you arrived at the store, Carroll’s store?
“A. I was going pretty fast. I had to slow up then, but, oh, I’d say 2 or 3 seconds.
“Q. And at the time you saw these vehicles going up this hollow and up the hill, how close was the white Ford to the red automobile that was in front to your best estimate?
“A. They had to be against one another almost.
“Q. From the time that they passed you at Alpha School until you arrived at the store, do you have any idea how long it took to travel that two miles or so?
“A. No. I’m not good at guessing time much, but I would say not over four minutes.”

He testified that when he arrived on the scene of the collision he saw oil cans, which had been overturned by the Chevrolet, still spinning around on the pavement of the highway and he saw the defendant there on the pavement kicking cans off onto the shoulder. On cross-examination this witness again estimated the speed of the Ford and Chevrolet automobiles which passed him as being in excess of 90 miles per hour:

“A. Well, they’d have to be going close to a 100 because I got up to 90.
“Q. And it’s just a little ways from that point where it went out of your sight to Perky’s store. Is that correct?
“A. Yes.”

The testimony of this witness indicated that he had more than the usual interest in automobiles. Thus, he testified that he often gave chase to motorbikes traveling at high rates of speed because he was curious to ascertain their speed in order that he might warn his son who owned and operated a motorbike. He also revealed that he had been charged twice by the highway patrol for speeding on the highway and had received several other warnings for similar conduct. He also stated that he carried two fire extinguishers under the hood of his automobile and that upon arriving upon the scene of the accident in question he used these extinguishers in an effort to attempt to put out the fire which engulfed the Chevrolet and its occupants. The defendant made no serious attempt to impeach witness May who, from all that appears in the record, was disinterested in the outcome of the case.

Alvin Boley, a young man who came upon the scene of the collision shortly after it occurred, testified that while sitting in his automobile with his wife near the scene he was approached by the defendant who came down a bank beside the highway and asked the witness to take him to Jefferson City, a few miles west of the scene of the collision, to the home of a deputy sheriff, Paul Moore. The defendant is a black man and deputy Moore also is black. Boley complied with this request and transported the defendant to the home of Deputy Moore where the defendant surrendered to Moore.

The only evidence offered by the defendant was his own testimony. He stated that he is 33 years of age, lives in Knoxville, is married and is' the father of eight children. He is employed at the American Enka Manufacturing plant located near Morristown and ordinarily rides a bus to and from work, since his driver’s license had been revoked. However, on the date in question, he drove a 1964 white Ford automobile which belonged to his wife. He stated that this was the first time he had driven this automobile and that en route from Knoxville to Morristown he noticed that the brakes were defective, in that, when applied they pulled to the right and, also, that it was necessary to pump the pedal in order to achieve braking power. He said he was so concerned with the defective condition of the brakes that when he arrived at Morris-town he looked for a mechanic, a friend of his, to repair them, and did not go to work. He stated that as he tried to stop for a traffic light near the A & P grocery store in Morristown, the brakes locked, causing his vehicle to spin around in the street and roll off the pavement into a nearby parking lot. He stated that he got out of the vehicle to examine his wheels but immediately drove back onto the highway and headed toward Knoxville at a speed of between 55 and 60 miles per hour. He described the ensuing collision as follows:

“Just as I got to this grocery store the Chevrolet in front of me — I started to go over to pass him. Just as I started to go, he swung out on me, and I hit him on his right rear. He went on across the highway, hitting the gas pumps and turned on his top and burst into flames. My car rolled off the side of the driveway there.
⅜ ⅜ ⅜ ‡ ⅜ ⅜5
“Q. Do you remember the ’64 Chevrolet in front of you — the Bullion car? “A. Yes, I didn’t see it until I got up on it.
“Q. All right. It was in front of you. Is that correct?
“A. Yes.
“Q. How far was the Bullion car when you first noticed it?
“A. Well, it was pretty — I couldn’t say. From where I was at to get to them I would say about as far from here to the jail.
“Q. What was your speed at that time?
“A. 65.
“Q. The car in front of you, the Bullion Chevrolet what, if anything, did it do?
“A. Well, it had its blinkers on to turn right at the store there.
“Q. What, if anything, did you do in regard to speed?
“A. The brake lights came on and started to break the speed, and just like I said I started to pass him over in the outside lane. Instead of him turning the corner, he swung out to turn the corner. I was getting over and then he swung out in front of me, and I hit him right on that, the left rear with my right front.”

The defendant denied that the 160 ft. of alleged skid marks which Officer Noe stated he found in the right hand lane for west bound traffic were laid down by his vehicle and stated that the debris from the collision was not located in the right hand lane but was in the center of the pavement provided for west bound traffic, more in the left hand lane than in the right hand lane.

Such is the evidence in this case.

IV

Assuming that defendant did not intend to kill the Bullions, does this evidence disclose that he intentionally committed a consciously unlawful act which he knew to be directly perilous to human life, which act resulted in their death?

One may infer from the testimony of witness May that immediately prior to and at the time of the collision the defendant was chasing or “tailgating” the automobile of the Bullions, “almost glued together, not over two feet apart,” . . . “they had to be against one another, almost,” at an extremely high rate of speed estimated by the witness to be in excess of 90 miles per hour and that, while thus engaged, the right front end of the defendant’s automobile collided with the left rear corner of the automobile of the decedents, causing it to leave the highway, knock down two gasoline pumps, overturn and catch afire, resulting in the death of its occupants. And, by his admission, the vehicle he drove was largely uncontrollable because of seriously defective brakes. In our opinion, this evidence, if believed by the jury, does show that the defendant intentionally committed a consciously unlawful act which was directly perilous to human life and known to him to be such, and, that this unlawful act resulted in the death of the decedents. Such conduct by the defendant implies “such a high degree of conscious and willful recklessness as to amount to that malignity of heart constituting malice.” Stallard v. State, supra.

With all due respect to the Court of Criminal Appeals, we cannot agree with its conclusion that May’s testimony is incredible and unworthy of belief. The testimony of this witness stands in the record unim-peached, and, apparently, was believed by the jury and the trial judge who affirmed the verdict of the jury. The Court of Criminal Appeals expressed disbelief that the Bullions would have “raced” with the defendant, a stranger to them. In our view, no “race” occurred. It is true that the record does not disclose any motive for the “tailgating” or chasing of the Bullion automobile by the defendant but ordinary human experience teaches that such things do happen. Moreover, while it is always enlightening to know the motive of one who commits a homicide, proof of motive is not essential to a conviction of murder. See State v. Bullington, Tenn., 532 S.W.2d 556 (1975). Nor do we agree that the “physical facts” are inconsistent with May’s testimony. The extensive damage to the two vehicles and the force obviously necessary for the Bullion vehicle to tear two gasoline pumps from their foundations, and, then to overturn onto its roof are facts consistent with a conclusion that these vehicles were traveling at a very high rate of speed when the collision occurred. The “skid” marks do not contradict May’s testimony; instead, they would appear to contradict the testimony of the defendant that his vehicle did not cause them.

It is pre-eminently and uniquely the province of the jury and the trial judge, rather than an appellate court, to determine the credibility of the witnesses; they see and hear the witnesses, thus acquiring information bearing upon credibility which is not reflected in the printed transcript reviewed by appellate courts. Holt v. State, 210 Tenn. 188, 357 S.W.2d 57 (1962).

“Neither this Court nor the Court of Criminal Appeals is free to re-evaluate the evidence as it pleases. A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace, Tenn., 493 S.W.2d 474, 476 (1973); Shiflet v. State, 216 Tenn. 365, 392 S.W.2d 676 (1965).

It is our conclusion that the evidence in this case does not preponderate against the verdict of the jury.

The only error assigned by the defendant in his motion for a new trial and, therefore, the only one decided by the Court of Criminal Appeals, questioned the sufficiency of the evidence to support the verdict. In this Court, he has assigned, but not briefed, alleged errors in the charge of the trial judge to the jury; such alleged errors must be deemed to have been waived. Rule 14(4), (5), Rules of Supreme Court.

The judgment of the Court of Criminal Appeals is reversed and that of the criminal court is affirmed. Costs are taxed against respondent.

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


author: ONION, Presiding Judge. DOUGLAS, Judge

text:
    Frederick WRITT, Appellant, v. The STATE of Texas, Appellee.
    No. 51267.
    Court of Criminal Appeals of Texas.
    July 7, 1976.
    Sharp, Ward & Ross, by Stephen W. McDaniel, Longview, for appellant.
    Odis R. Hill, Dist. Atty. and Joseph O’Ha-gan, Asst. Dist. Atty., Longview, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for aggravated robbery, wherein the jury assessed twenty-five (25) years in the Department of Corrections.

Appellant complains in two grounds of error that the court erred in overruling his motion to suppress items seized as a result of an illegal search and seizure, and erred in permitting the complaining witness to make an in-court identification of him because such identification was tainted by improper and unfair pre-trial identification procedures.

The record reflects that on December 20, 1974, Gerald Steed was the sole attendant at the Citgo service station in Longview. About 9 p. m. Steed testified that the appellant, his brother, Paul Writt, and Henry Adams came into the small but well lighted office and at gunpoint took $55.00 out of the cash register. As Steed was led out of the back door, he was told to turn over his wallet, he started to but jerked it back and darted away. The appellant fired at him. Steed reached a nearby Mobil station and called the police.

Mae Josie Anthony testified she left Good Shepherd Hospital, not far from the Citgo station, about 9 p. m. She had been visiting her ill husband. She walked the eight blocks to her home, and after her arrival, she testified her son admitted the Writt brothers and Henry Adams into the house to make a telephone call for a taxi. When the taxi arrived, one of the men went to the door and told the driver the persons who had called the cab had left. When Mrs. Anthony heard this conversation, she went to the door to tell the driver otherwise, but he was already driving off.

Two police officers, Jim Hayes and Ken Canady, who had been informed of the robbery, saw the taxicab in the area and stopped it. As a result of a conversation with the driver, the officers went to the Anthony house. There Mrs. Anthony acknowledged the three men who had called the taxi were still there, and she stated the officers were “welcome to come in.”

The two officers went into the bedroom where the three men were. When they stood up, the officers observed the men fit the description of the three robbers as given by Steed. They were told the officers wanted to talk to them about the offense that had occurred. They stepped “into the main portion of the house,” where the three were arrested.

While it is not altogether clear when this occurred, Hayes testified he saw “there was partially part of one jacket sticking out” under the bed the Writt brothers had been sitting on. Under the bed he found a brown jacket, a blue jacket and a black cap. Under the mattress he picked up a small .22 caliber pistol, which was loaded with five shells and one spent shell.

The men were returned to the station, where Steed said “That’s them” and “That’s the jacket” when shown one of the jackets. At the police station the appellant was found to have $18.00 on his person, and the others each had $17.00.

Initially appellant complains of the court’s action in overruling his motion to suppress. On the day of the trial and just prior thereto, appellant’s counsel stated to the court he was urging a verbal motion to suppress. In his statement he said, “While obtaining a consent to search the premises the officers did not have probable cause to search said premises, they were not in the act of pursuing a fleeing felon.” The appellant did not offer any evidence or request the opportunity to do so, and the court simply stated, “Motion denied at this time.” Clearly there was no formal hearing on the verbal motion to suppress. At the trial there was no objection to the introduction of any of the items seized on the basis now urged on appeal — that they were seized as a result of an illegal search and seizure.

In Bosley v. State, 414 S.W.2d 468 (Tex.Cr.App.1967), cert. den. 389 U.S. 876, 88 S.Ct. 172, 19 L.Ed.2d 162, it was pointed out that nothing in Article 28.01, Vernon’s Ann.C.C.P., requires the court to hear any pre-trial motion, but the accused retains his right to raise any appropriate objection at trial. A pre-motion to suppress filed on the day of trial is untimely filed, Sonderup v. State, 418 S.W.2d 807 (Tex.Cr.App.1967), and the court does not err in denying such motion, Bosley v. State, supra, or in refusing to conduct a hearing thereon. Smith v. State, 437 S.W.2d 835 (Tex.Cr.App.1968). See also Blankenship v. State, 448 S.W.2d 476 (Tex.Cr.App.1969). The question of whether to hold a hearing on such a motion rests within the discretion of the trial court. Hicks v. State, 508 S.W.2d 400 (Tex.Cr.App.1974); Bell v. State, 442 S.W.2d 716 (Tex.Cr.App.1969).

As to appellant’s specific ground of error that the court erred in overruling his pretrial motion to suppress presented without evidence, there is no merit in light of the above authorities. The question remains whether the appellant preserved the error, if any, by urging a pre-trial motion to suppress without evidence since he did not object at the trial on the basis of an illegal search and seizure.

In Riojas v. State, 530 S.W.2d 298 (Tex.Cr.App.1975), this court stated:

“We therefore hold that the overruling of any pre-trial motion to suppress is sufficient to preserve error in the admission of the evidence made the basis of the motion to suppress.”

There were two vigorous dissenting opinions. In Riojas the hearing on the motion to suppress had been conducted ten weeks prior to trial and evidence had been adduced. In reaching its holding, the majority relied upon Graves v. State, 513 S.W.2d 57, 59 (Tex.Cr.App.1974), where the trial court exercised its discretion and heard a motion to suppress where evidence was adduced on the day of the trial. After the motion was overruled, no objection was made at trial. There the court wrote:

“ . . . Since the trial court had immediately before overruled the motion to suppress, it was not necessary for appellant to object when the contraband was offered. Powers and Dion v. State, Tex.Cr.App., 456 S.W.2d 97; Art. 40.09, Sec. 6(d)(3), Vernon’s Ann.C.C.P.”

Article 40.09, Sec. 6(d)(3), Vernon’s Ann. C.C.P., provides in effect that if during trial an objection to the introduction of evidence is made outside the presence of the jury and overruled, it need not be repeated in the jury’s presence in order to preserve error. In Powers and Dion v. State, supra, there had been a pre-trial hearing on the motion to suppress where evidence, including the search warrant affidavit, was introduced. The motion was overruled. At trial; outside the jury’s presence, the affidavit was again introduced and objection made, but the objection was not repeated when the contraband was offered after the jury had returned. The court noted the provisions of Article 40.09, Sec. 6(d)(3), supra, and held the objection in the jury’s absence was sufficient to preserve error. Actually the fact that there had been a hearing on the motion to suppress was not essential to the holding in Powers and Dion v. State, supra.

The question we face is whether an oral pre-trial motion to suppress, unsupported by evidence, in which it is asserted by brief argument that there was no probable cause to search is sufficient to support a ground of error relating to search and seizure on appeal when no objection has been subsequently offered at the trial on the merits. We think not, particularly where the argument presented on appeal as to illegality of the search varies from that argued on the motion to suppress. In the instant case appellant told the trial court there was no probable cause to search at the “hearing” on the motion to suppress. No objections were offered at trial on this basis. On appeal appellant contends there was no probable cause for arrest and if there was, the search incident to arrest was broader in scope than permitted by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

We qualify the holding in Riojas to limit it to situations such as in Graves and in Riojas itself where the hearing on the pretrial motion to suppress is supported by evidence and the contention presented on appeal is the same as that presented to the trial court at such hearing. No longer will any ruling on any pre-trial motion to suppress be sufficient to preserve error where there is no objection at trial.

Since the error, if any, was not properly preserved, appellant’s initial contention is overruled.

Next appellant complains the court erred in permitting Steed’s in-court identification as it was tainted by improper and unfair pre-trial police identification procedures.

Just prior to trial the court conducted a separate hearing in the absence of the jury. See Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969). Steed testified that at about 9 p. m. the three men came into the small service station office lighted by four fluorescent lights, and that during the course of the robbery he got a good look at both the appellant and his brother, who were less than ten feet away, and a profile view of the third man. He gave a description of the clothing worn, etc. There was a showing that the men had been returned to the service station shortly after arrest where Steed said, “That’s them” and “That’s the jacket.” It was also shown that an hour and a half later Steed was taken to the police station and asked to look through a window to see if he could identify the persons he saw. He stated there were only two men in the other room, one with his back to him and the other was holding his head down. He stated the window was dirty and covered with a wire. He told a policeman, “I can’t see them too good right here. I don’t know what you want me to look for because I can’t see. They don’t even hardly look like the two.” He explained his last remark as meaning that he couldn’t tell for sure. He thus made no identification at the police station. At the conclusion of the hearing, the court ruled that the in-court identification was admissible.

Appellant first complains of the confrontation at the service station immediately after the arrest. Such confrontations have been upheld in a number of cases.

In the past this court has refused to extend the holdings of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), so as to require counsel at, on, or near the scene during confrontation between a suspect and a witness occurring shortly after the commission of a crime, or in other circumstances which necessitate a prompt identification, there being some reasonable elasticity as to time and place. Piper v. State, 484 S.W.2d 776 (Tex.Cr.App.1972); Cole v. State, 474 S.W.2d 696 (Tex.Cr.App.1971); Garcia v. State, 472 S.W.2d 784 (Tex.Cr.App.1971); Perryman v. State, 470 S.W.2d 703 (Tex.Cr.App.1971) (Concurring Opinion). See also Ellingsworth v. State, 487 S.W.2d 108 (Tex.Cr.App.1972); Waffer v. State, 500 S.W.2d 659 (Tex.Cr.App.1973); Pilcher v. State, 503 S.W.2d 547 (Tex.Cr.App.1974).

Further, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), held that a showup after arrest but before the initiation of any adversary criminal proceeding, unlike the post-indictment confrontations involved in Gilbert and Wade, is not a criminal prosecution at which the accused, as a matter of absolute right, is entitled to counsel.

It appears to be appellant’s contention, not relying upon Gilbert and Wade, that from the totality of the circumstances the one-on-one confrontation was “so unnecessarily suggestive and conducive to irreparable mistaken identification” that he was denied due process. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Graham v. State, 422 S.W.2d 922 (Tex.Cr.App.1968).

Although identification procedures whereby suspects are viewed singly by a witness rather than a lineup has been widely condemned, Stovall v. Denno, supra, due process is not, however, invariably violated by such procedure. See Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968). Each case must be considered on its own facts to determine the likelihood that a particular pre-trial confrontation resulted in irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

At the confrontation at the service station shortly after arrest, there appears to be no evidence of suggestiveness. Appellant points to the fact that one officer held up one of the jackets for the complaining witness to see. There does not appear to have been any suggestion on the part of the officer. Certainly under the circumstances when considered in their totality, they were not so unnecessarily suggestive and conducive to irreparable misidentification as to amount to a denial of due process.

Next appellant complains of the “line up” at the police station. While the showing of two of the suspects alone to the alleged victim of a robbery is not to be condoned, the record before us does not establish which two men were in the other room. As a result of the poor viewing conditions, he could not identify anyone. It is not shown that he made a misidentification. If two of the three men were in the other room, there was adequate explanation why he could not identify them. It appears that the witness’ in-court identification was based on his independent observations under well lighted conditions during the course of the robbery and were not tainted by other identification procedures.

The judgment is affirmed.

DOUGLAS, Judge

(concurring).

The majority of the Court recognizes that it was in error in Riojas v. State, 530 S.W.2d 298 (Tex.Cr.App.1975). While the majority is modifying that decision, it should modify it completely by overruling it. When the court overruled the motion to suppress prior to trial in the present case, why was not that motion just as good and sufficient as the motion made in the Riojas case? If the majority in the Riojas case is correct, the trial court in the present case could have remembered the motion at a trial held later and, when the evidence concerning the arrest and search was adduced, the court could have acted upon the motion. The majority in the Riojas case erroneously held in effect that a trial judge must remember a motion to suppress, the evidence adduced thereon and its ruling even though it was not called to his attention during the trial on the merits some ten weeks later. The majority in Riojas held that the motion to suppress was based on a statute. In the present case the motion to suppress was based on the same statute. There is no reason for a different rule.

To make it short, there is no reason for the rule in the Riojas case. See the dissenting opinions.

For the above reasons, I concur in the affirmance of the conviction.

      . This appeal is a companion case to Henry Adams v. State, 537 S.W.2d 746 (Tex.Cr.App., delivered June 16, 1976). It is noted that the instant case was tried prior to the Adams case and that there are some discrepancies in the facts and the spelling of the names of witnesses in the two cases.


author: BROWN, Commissioner.

text:
    Jesus Sandoval GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 52145.
    Court of Criminal Appeals of Texas.
    Sept. 15, 1976.

      Hector Yznaga, Brownsville, Court appointed, for appellant.
    Selden N. Snedeker, Dist. Atty., David B. Lanford, Asst. Dist. Atty., Brownsville, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for attempted murder under V.T.C.A. Penal Code, Sec. 15.01 and Sec. 19.02. Appellant was tried before a jury which found him guilty. Punishment, enhanced under V.T. C.A. Penal Code, Sec. 12.42, was assessed by the court at life in the Texas Department of Corrections.

In his first ground of error appellant contends that it was error for the trial court to overrule his motion for an instructed verdict of not guilty because the evidence failed to establish that appellant had the “specific intent” to kill.

The record in this case contains the testimony of the prosecuting witness, Margarito Ayala, and his brother Manuel Ayala and a nephew, Juan Ayala. The testimony of all three is substantially the same and is to the effect that they had been drinking in the Ruiz Bar in Brownsville from 6:00 p.m. until 10:00 p. m. on March 2,1975. They all stated that they got in their car to leave shortly after 10:00 o’clock. As they pulled out of the parking lot appellant approached from across the street and stood in the path of the Ayala car preventing their departure. Manuel Ayala, the driver of the car, shouted to appellant to get out of the way and the two exchanged words. The Ayalas stepped out of their vehicle and appellant drew his .22 pistol and began firing, first at Manuel and then at Margarito, who was hit in the abdoméfi and fell to the street. Appellant ran down the street to a nearby cafe where he was apprehended a short time later.

The indictment charges that appellant “did then and there attempt to cause the death of Margarito Ayala by shooting him with a gun, having at the time the specific intent to commit the offense of murder.” (Emphasis added) Appellant contends that under this charge the State had the burden to present “clear and convincing evidence” that appellant had the specific intent to kill Ayala.

Appellant’s contention is without merit. This indictment charges appellant with attempted murder. Under V.T.C.A. Penal Code, Sec. 15.01, a person commits the offense of criminal attempt if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. The offense which appellant is alleged to have had the specific intent to commit is “murder.” Under V.T.C.A. Penal Code, Sec. 19.02, a person commits the offense of murder if he either (1) intentionally or knowingly causes the death of an individual or (2) if he intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.

Specific intent to kill, therefore, is not an essential element of proof of the offense of murder under Section 19.02(a)(2). It is sufficient to show only the intent to cause serious bodily injury. Baldwin v. State, 538 S.W.2d 615 (Tex.Cr.App.1976). It follows that to prove an “attempted murder” it is sufficient if the accused has the intent to cause serious bodily injury and commits an act “amounting to more than mere preparation” that could cause the death of an individual but fails to do so.

We note that under the prior penal code in a trial for assault with intent to murder the specific intent to kill was an essential element of proof. Bell v. State, 501 S.W.2d 137 (Tex.Cr.App.1973). However, the jury, as sole trier of the facts, could infer the specific intent to kill from the use of a deadly weapon. A pistol is a deadly weapon per se. Bell, supra. It is likewise reasonable for the jury in a trial for attempted murder, under the present penal code, to infer the “intent to cause serious bodily injury” from the use of a deadly weapon; however, if a deadly weapon is not used, a different question would arise.

Under the foregoing analysis, it is clear that the evidence in the instant case is sufficient to support the jury’s verdict.

Appellant’s ground of error is overruled.

In a pro se ground of error appellant contends that the State introduced an “invalid prior conviction” for the purposes of enhancement. Appellant contends that the sentence in Cause No. 11,347 does not reflect that appellant was represented by counsel and that it is, therefore, void on its face. No motion to quash the enhancement paragraphs of the indictment was filed and no objection was made to the introduction of the prior conviction. Appellant raises precisely the same contention raised by the defendants in Olson v. State, 505 S.W.2d 895 (Tex.Cr.App.1974); Clark v. State, 496 S.W.2d 83 (Tex.Cr.App.1973); and Boss v. State, 489 S.W.2d 580 (Tex.Cr.App.1973). We held in all three cases that no error was shown.

Appellant’s second ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . We note that appellant makes no complaint about the sufficiency of the indictment and as in Baldwin, supra, we need not reach the question of whether an indictment for attempted murder must specify murder under V.T.C.A. Penal Code, Sec. 19.02(a)(1) or (a)(2) or (a)(3). Appellant filed no motion to quash and the indictment is not fundamentally defective.

      . Serious bodily injury is defined in V.T.C.A. Penal Code, Sec. 1.07(a)(34).


author: DALLY, Commissioner.

text:
    James M. McGINNIS, Appellant, v. The STATE of Texas, Appellee.
    No. 51548.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.
    Wayland A. Simmons, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Teofilo Chapa, Edward Prado and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of cruelty to an animal. The court assessed punishment of confinement in jail for 6 months and a fine of $100. The imposition of sentence was suspended and the appellant was granted probation.

The appellant asserts the court’s charge to the jury was a comment on the weight of the evidence. He also challenges the sufficiency of the evidence.

The prosecution is for a violation of V.T.C.A. Penal Code, Sec. 42.11, which provides:

“(a) A person commits an offense if he intentionally or knowingly:
“(1) tortures ... an animal;”

Article 180, V.A.C.S., defines torture of an animal as every act, omission or neglect whereby unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue when there is a reasonable remedy or relief.

The jury was instructed in pertinent part that:

“IV.
“Now, if you find from the evidence beyond a reasonable doubt that on or about the 9th day of October, A.D. 1974, in Bexar County, Texas, the defendant, James M. McGinnis, did intentionally and knowingly torture an animal, to-wit: said James M. McGinnis did trap a dog in a metal animal trap, injuring the dog’s leg, and said defendant did then and there beat the said dog to death, then you will find the defendant guilty . . . ”

The charge instructed the jury, over the appellant’s objection, that the acts described constituted proof of torture of an animal. This was a comment on the weight of the evidence. See Article 36.14, V.A.C. C.P. Cf. McCandless v. State, 21 Tex.App. 411, 2 S.W. 811 (1886); Jaimes v. State, 32 Tex.Cr.R. 473, 24 S.W. 297 (1893); Harkey v. State, 33 Tex.Cr.R. 100, 25 S.W. 291 (1894); Jones v. State, 70 Tex.Cr.R. 343, 156 S.W. 1191 (1913); Hughes v. State, 99 Tex.Cr.R. 244, 268 S.W. 960 (1925); Hill v. State, 103 Tex.Cr.R. 531, 281 S.W. 562 (1926). The charge did not permit the jury to determine whether the acts described in the court’s charge constituted proof of the torture of an animal. The jury should have been instructed on the definitions of torture of an animal, and it should have been permitted to determine whether the acts described in the circumstances of this case show the torture of an animal.

The law appears to contemplate that in some circumstances the infliction of pain and suffering on an animal may be necessary and justifiable, and in such circumstances would not be torture of the animal. The testimony of the appellant in this case raised issues of whether his acts were necessary and justifiable in protecting his family and property because he had no other remedy or relief.

We will not rule on the sufficiency of the pleading inasmuch as that issue has neither been raised nor briefed; however, even if the pleading is sufficient, we observe that it may very well have misled the court into submitting the improper charge.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, J., dissents.


text:
    Rawley PROWELL, Appellant, v. The STATE of Texas, Appellee.
    Nos. 51837 to 51839.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.
    Ralph Taite, Dallas, for appellant.

      Henry M. Wade, Dist. Atty., Maridell Templeton, Braden W. Sparks, John Wm. Booth, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

These are appeals from convictions for theft of a service of the value of over $200 but less than $10,000. The punishment assessed in each case is imprisonment for 5 years, but in each case imposition of sentence was suspended, and the appellant was granted probation.

The appellant pleaded not guilty; he agreed to have these three cases consolidated for trial before the same jury. The two grounds of error that are presented are the same in each case on appeal.

The appellant first complains that the indictments are not couched in plain and intelligible language and do not meet the requirements of Article 21.02(7) and Article 21.04, V.A.C.C.P. The stolen services are described in the indictments as “hotel bill,” “automobile rental,” and “vehicle rented.” The appellant urges that the services should have been described in the language suggested by V.T.C.A. Penal Code, Sec. 31.01(7)(C), (D), as “lodging and restaurant service,” and “the supply of a motor vehicle.” When applicable it would be preferable to follow the definition for services set out in Sec. 31.01(7). which reads as follows:

“(7) ‘Service’ includes:
“(A) labor and professional service;
“(B) telecommunication, public utility, and transportation service;
“(C) lodging, restaurant service, and entertainment; and
“(D) the supply of a motor vehicle or other property for use.”

It is obvious that these definitions are suggested examples that are included within the term “service.” We hold that the allegations of “hotel bill,” “automobile rental,” and “vehicle rented” are sufficient to describe the services stolen; the allegations are not vague and indefinite, and they do not violate or conflict with any statutory requirements.

In his argument in the brief the appellant also contends that there are fatal variances in each case between the State’s proof and the allegations of the indictment concerning the services rendered. We find the evidence in each case, which is summarized in the discussion of the next ground of error, shows that the services obtained by theft supported the allegation in each indictment; no fatal variance resulted.

The remaining ground of error in each case is that the State failed to prove the appellant did not intend to pay for the services rendered.

The evidence in Cause 51,837 is that the appellant rented an automobile on September 27, 1974, to be returned on October 7, 1974. The appellant called on October 7th and said it would be two more days before he could return the automobile. Although he was called repeatedly, the appellant could not be reached at the telephone number he gave when renting the automobile. On October 24th, a certified letter demanding that the automobile be returned was mailed to the address given by the appellant when he rented the automobile. On November 5th, the automobile that the appellant had rented was left on the service drive of the car rental premises. It had been driven 3,891 miles, and under the terms of the contract the appellant owed $688.98 for the rental of the automobile. The appellant made no arrangement for credit when he rented the automobile.

The evidence in Cause 51,838 is that the appellant, who told the rental agent that he was in the roofing business, rented an automobile on November 13,1974, from another rental agency in Dallas; it was to be returned in two days. Appellant called on the second day and said that he wanted to return the car after the weekend on Monday morning, November 18th. On November 20th, the agency sent letters, by certified mail demanding that the automobile be returned, to the address given by the appellant when he rented the automobile and to another address where the agency’s investigation showed the appellant might be reached. Return receipts were made on each letter showing that they had been received the day after they were mailed. On the morning of December 16th, the automobile rented by the appellant was found on the street near the car rental premises. The automobile had been driven 3,150 miles, and under the rental contract terms the appellant owned $690.06 for rental of the automobile. When the automobile was rented there was no arrangement made for credit, and the agent told appellant that the rental fee would have to be paid in full when the automobile was returned.

The evidence in Cause 51,839 shows that the appellant registered at a Dallas hotel on December 18, 1974. There was a medical convention in Dallas at the time, and a sign on the marquee at the hotel welcomed those attending that convention. The appellant registered as “Dr. Rod Powell,” and gave a home address of Fort Worth. He stated on the registration card that he was employed in Fort Worth at the Powell Medical Center. He gave a departure date of December 20th. On the afternoon of December 23rd, the hotel employees commenced to be concerned about the payment of the appellant’s bill, and they started looking for him. Later that evening the appellant was found in his room. He had no money and no credit card with which to pay the amount that he then owed. He insisted that the employees of the hotel wait until morning to straighten out the matter. An employee remained outside of the appellant’s room, and another employee called police officers. After police officers came to the hotel, the door to the appellant’s room was found to be locked with the security chain on the inside in place. Officers broke into the room, found the window open and the appellant absent from his room. The appellant had escaped from his third floor room, and he was seen in a flower bed on the ground. He was later arrested at a service station nearby.

The twenty-seven year old appellant testified in his own behalf. He said he was employed by a publishing company for which he directed a magazine sales crew and that he was also employed, as an estimator, in his brother’s roofing business. He testified that in Cause 51,837 the rental agent would not accept a deposit when he rented the car and told him he would have to pay the rental fee when the automobile was returned. He said that he expected the automobile rental agencies to send him a bill which he intended to pay, but he did not receive a bill from either of the rental agencies. He also testified that he did not intend to abscond without paying for the use of the automobiles.

V.T.C.A. Penal Code, Sec. 31.04, provides:

“(a) A person commits theft of service, if, with intent to avoid payment for service that he knows is provided only for compensation:
“(1) he intentionally or knowingly secures performance of the service by deception, threat, or false token; or
“(2) having control over the disposition of services of another to which he is not entitled, he intentionally or knowingly diverts the other’s services to his own benefit or to the benefit of another not entitled to them.
“(b) For purposes of this section, intent to avoid payment is presumed if the actor absconded without paying for the service in circumstances where payment is ordinarily made immediately upon rendering of the service, as in hotels, restaurants, and comparable establishments.”

The appellant argues that subsection (b) of Sec. 31.04, does not apply to the rental of automobiles.

We observe in the practice commentary following V.T.C.A. Penal Code, Sec. 31.04, it is said:

“Section 31.04(a)(1) contemplates the normal theft of services situation where the actor ‘walks’ the bill at a restaurant, uses a slug in a pay telephone, or leaves a rented trailer where it will be found, but fails to pay for its rental . . .”

We hold that V.T.C.A. Penal Code, Sec. 31.04(b) does apply to the rental of automobiles when there is no arrangement for credit. The appellant did not arrange for credit in either instance when he rented the automobiles. It was understood when the cars were rented from each of the agencies that payment would be made when the cars were returned. This is clear from the combined testimony of the agents and the appellant.

The evidence is sufficient in each case to support the jury’s finding that the appellant had no intent to pay for the services which he had received.

The judgments are affirmed.

Opinion approved by the Court.


text:
    John Price HAYTER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 51875.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.
    James 0. Terrell, Waco, for appellant.
    Martin D. Eichelberger, Dist. Atty., Lynn Malone, Asst. Dist. Atty., Waco, Jim D. Vollers, State’s Atty., and David S. MeAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for burglary; the punishment, enhanced by two prior convictions, is imprisonment for life. V.T.C.A. Penal Code, Sec. 12.42(d).

The erroneous admission of harmful hearsay evidence which was offered to rebut the testimony of the appellant requires the reversal of the judgment.

It was alleged that the appellant entered a habitation and committed the felony offense of kidnapping by using and threatening the use of deadly force. The State offered the testimony of the complainant, which was corroborated by the testimony of her grandmother, and her eight year old son, and by other evidence. While her husband, who was in the military service, was being transferred from his station in Germany to Fort Benning, Georgia, the complainant, the mother of three young children, was living with her grandmother.

At about 12:30 p. m. the complainant saw the appellant enter the yard in front of the house where she lived. He came to the door and said he was “from the electric company.” He told her that a power failure was being experienced in the area, and he inquired if she had had any power failure or difficulty with her appliances. She told him that her television set was not working, but she didn’t know if it was because of that power failure. The appellant, after gaining entrance to the house to inspect her appliances, threatened to harm the complainant and her eleven month old baby. He then forced the complainant to take him from the premises in her automobile. The police, alerted by the complainant’s grandmother, stopped the automobile and arrested the appellant.

The appellant’s version of the matter was entirely different. He said that he had recently been placed on parole and was employed by Mosley Machine Company. Just after noon, as the appellant was crossing the parking lot, he saw the complainant sitting in an automobile eating a sandwich. She was dressed in shorts; she was barefooted “with her legs hanging out” of the car. The appellant had heard that a woman had been visiting the parking lot and there picking up men. Although he had not seen her before, he thought this was the woman about whom he had heard. As he passed her automobile, she spoke first asking him if he was off duty. On the spur of the moment, he told her that he was off duty; she suggested that they go some place together. She did not tell him where they were going but after he was in the automobile she told the appellant she would first have to go to her house to get her shoes. They left the parking lot, and after driving in a roundabout route, the complainant drove to her house. She went in the house and then she came back to the door and motioned for the appellant to come into the house. While the appellant was drinking a bottle of soda water offered him by the complainant, an older woman whom he had seen on the bed woke up. The appellant heard the older woman tell the complainant, “Well, I don’t want him in here. You just take him away and get him away from here . . . ” The complainant then told the appellant that her mother was “shook up” and that they would have to leave. The appellant and the complainant left in her automobile, and the appellant was arrested by police after they stopped the automobile driven by the complainant.

The evidence complained of is the testimony of Officer Joe R. Johnson. During his investigation of this offense, Johnson went to the machine company where the appellant had been employed to “check out” the story related to him by the appellant. He said the appellant told him many people at the machine company had seen a woman on the parking lot almost daily, and that several of these people told him they had “relations” with her. Johnson said he talked to fourteen employees of the machine company. At this time the appellant’s counsel objected to the offer of any hearsay testimony. Johnson was then asked, “Based upon those conversations that you had with those employees, did anyone ever indicate to you that — .” Appellant’s counsel then objected that the question called for hearsay. After a short colloquy between counsel and the court the objection was sustained. Then the following transpired:

“BY PROSECUTOR:
“Q. Mr. Johnson, based upon your investigation and conversations with all of these people at Mosley [Machine Company], have you found anything to indicate that there was ever a woman on that parking lot?
“A. No sir.
“[DEFENSE ATTORNEY]: Your Honor, I object to that. That calls for an improper — a conclusion on the part of this witness.
“THE COURT: I’ll overrule that objection.
“[DEFENSE ATTORNEY]: Can I object to it again, because it calls for an answer based on hearsay.
“THE COURT: Overruled.
“A. No, sir, I did not find any of the employees that had seen Mrs. _[complainant] or her car on the parking lot, at anytime.
“Q. Did Mr. Eschenburg, this man’s supervisor, also attempt to do the same thing?
“A. Yes, sir.
“[DEFENSE ATTORNEY]: Your Honor, I object to that. That is clearly hearsay, as to what Mr. Es-chenburg—
“THE COURT: I’m sorry. I didn’t catch the question. I’m sorry. What was the question.
“[PROSECUTOR]: I asked if Mr. Eschenburg, his supervisor, had also attempted to do the same thing.
“THE COURT: Well, I’ll sustain the objection to that question.”

The State argues that Johnson’s testimony was not hearsay, that the prosecutor’s question merely called for the witness’ conclusion based on the negative results of his investigation of the appellant’s version of the matter. It is argued that the witness did not recite conversations he had with the appellant’s co-workers. The State says: “In essence, the witness’ testimony was merely that he had tried to find any of appellant’s co-workers who might have seen the victim and that he could not do so. This was clearly within personal knowledge of the witness and did not call for hearsay.”

The State then draws an analogy between this case and those holding that a witness who has examined books or other documents may testify that the books or documents do not contain certain information. Among the authorities cited are Rice v. State, 130 Tex.Cr.R. 342, 93 S.W.2d 1149 (1936); Long v. State, 120 Tex.Cr.R. 373, 48 S.W.2d 632 (1931); Moore v. State, 87 Tex.Cr.R. 77, 219 S.W. 1097 (1920); Ferguson v. State, 79 Tex.Cr.R. 641, 187 S.W. 476 (1916) and Wilson v. State, 61 Tex.Cr.R. 628, 136 S.W. 447 (1911).

The authorities cited by the State are concerned with the business records exception to the hearsay rule. See Article 3737e, V.A.C.S.

Although A may testify that he has examined business records and that the records do not contain certain entries, B’s testimony based on information he received from A that no such entries are contained in the records is not firsthand information; it is clearly hearsay and would not be admissible. Although the State might have introduced testimony of any or all fourteen employees that they had observed the parking lot at relevant times and they had not seen the complainant on the parking lot, Johnson’s testimony based on information he received from the fourteen employees that the complainant had not been on the parking lot was not firsthand information; it is clearly hearsay and it was not admissible. See McCormick and Ray, Texas Evidence, Sees. 781, et seq. (2d ed.).

Johnson’s testimony was offered to rebut the appellant’s testimony; it seriously impinged on an important part of the appellant’s defensive testimony; it was harmful; it was erroneously admitted; its admission constituted reversible error.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: GREEN, Commissioner.

text:
    Weldon Clark DIXON, Appellant, v. The STATE of Texas, Appellee.
    No. 52050.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.

      Cleophas R. Steele, Jr., Dallas, for appellant.
    Jerry Spencer Davis, Dist. Atty., Tommy Bastain, Asst. Dist. Atty., Greenville, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of aggravated robbery. See V.T. C.A. Penal Code, Sec. 29.03. Punishment was assessed by the jury at sixty-five years.

Appellant challenges the sufficiency of the evidence to support the verdict. When the evidence is considered in the light most favorable to the verdict, the record reflects as follows:

L. C. Sibley, the complainant, on October 22, 1974, was the operator of a service station, jointly used also as a bus station, in Commerce. His sister, Jeanette Welch, present at the time of the robbery, was agent for the bus company. Sibley testified that at around 4:00 in the afternoon two black men entered that station and bought soft drinks. As Sibley stood at the cash register, one of the men walked up behind him and hit him on the left side of the face with a bright-colored pistol.

He testified that a pistol, later placed in evidence as State’s Exhibit No. 2, appeared to be like the gun he was struck with. Sibley and his sister, Mrs. Welch, were ordered to lie down with their faces to the floor and remain there under threat of death. The robbers, having taken around $100, in tens, fives and ones, and some checks and two wrist watches, fled on foot when a car pulled into the service station’s driveway. Sibley testified he had made several business transactions out of the cash register on the day in question and the $100 figure was merely an approximation.

Neither Sibley nor Mrs. Welch got a good look at either robber, but Mrs. Welch testified that one of the robbers had on “something brown” and the other had on “something blue” and that one of the men wore a hat. Neither she nor complaining witness Sibley could identify appellant as being one of the robbers; in fact, neither of the robbers was identified by any witness.

Mrs. Melinda Wallen testified that she lived next door to the Sibley bus and service station. At about 3:30 p. m. on October 22, she saw a blue car with license plate NPD 305 parked in a parking lot next door to the station. The car had four black men in it. After the car had been there about 30 minutes, the two men in the rear seat left, and walked toward a liquor store next to the bus station. Several minutes later she saw these same two men, one wearing a hat, run from the bus station and get in the car and leave with the other two men who had remained in the car. Later, she gave, police who had arrived at the scene of the robbery a description and license number of the car. She did not testify as to what make of car it was. Mrs. Wallen identified a photograph of the car in which appellant was subsequently arrested as being the car she saw on this occasion.

Officer Wilson Dew, a highway patrolman with the Texas Department of Public Safety, heard a radio broadcast of the robbery, with a description and license number of the car in which the robbers had allegedly left the scene. Somewhere on the highway between Celeste and Wolfe City, according to his testimony, he met the vehicle which had been described to him, bearing license NPD 305. After notifying headquarters and asking for a “backup” car, he followed and stopped the car, which he said had been described to him as a “blue Mercury, two-door Montego,” with license NPD 305. He and other officers ordered the four black men in the car to get out, and arrested and handcuffed them. Appellant, who was wearing a hat, was the driver of the car in question. A search of the car revealed a pistol in the rear seat “pressed down between the seat back and the seat bench with the butt sticking out like this as if someone had tried to cram it down out of sight and had been sitting on it.” This pistol was introduced in evidence as State’s Exhibit No. 2.

Deputy Sheriff W. T. Wallen was one of the officers who assisted in the arrest of appellant and his companions and the search of the car. He found a pistol on the left hand side in the back seat behind the driver, introduced in evidence as State’s Exhibit No. 5. He also found a billfold on the front seat “that belonged to the defendant” which had a police badge in it, “and there was another billfold found in the ear that had a special police badge in it.”

I. D. Smith, investigator for the Hunt County sheriff’s office, was another officer who assisted in the arrest of appellant and his companions. In a search of appellant at the scene, he found twenty one-dollar bills in his shirt pocket, and three twenty-dollar bills, two ten-dollar bills, and twelve five-dollar bills in his .left rear pants’ pocket.

Mrs. Lester Welch testified that on October 22, 1974, she was the agent for Continental Trailways, whose office was in the Sibley service station. As she was talking on the telephone about 4:00 p. m. on that date, a black man stuck a gun in her ribs and said, “Don’t look up or I will kill you. Open the cash drawer and you had better keep your head down too.” She was then made to lie face down by her brother, L. C. Sibley, who had already been hit with a pistol. Next she was forced to open Sib-ley’s cash drawer and the money and checks therein were taken by the man with the pistol. Her watch was also taken. She testified that the pistol introduced as State’s Exhibit No. 2 was similar to the shiny gun used by the robber, although she said, “Similar, but you know, I was so scared I really didn’t pay much attention to it.” She could not identify appellant as the robber, nor did she identify either of the men who entered the building.

After the men left, she ran outside but did not see either of the men. She saw Mrs. Wallen and talked to her. Police were summoned.

A watch, identified by L. C. Sibley as having been taken by the robbers, was introduced in evidence. However, there is no evidence that this watch was found in the possession of appellant or of any of his companions, or that it was recovered in a search of the car. So far as the record discloses, it was introduced during the testimony of L. C. Sibley, and never mentioned again in the evidence. Mrs. Welch’s watch was not found, nor were any of the checks taken during the robbery.

Appellant did not testify, and he placed no witnesses on the stand.

The court, in submitting the case to the jury, charged on the law of circumstantial evidence. On appeal, the State, argues that the circumstantial evidence is sufficient to support the verdict. We do not agree, and reverse the judgment.

In determining whether circumstantial evidence is sufficient to support a conviction, each case must necessarily be tested by its own facts. Moore v. State, Tex.Cr. App., 532 S.W.2d 333; Ysasaga v. State, Tex.Cr.App., 444 S.W.2d 305. Ordinarily, the test on appeal is whether there was evidence from which the jurors (advised of the restrictions the law places on them in condemning one on circumstantial evidence) might conclude beyond a reasonable doubt that every reasonable hypothesis other than guilt was excluded. Moore v. State, supra.

As stated in Higgins v. State, Tex.Cr.App., 515 S.W.2d 268, 271:

“A conviction based on circumstantial evidence cannot be sustained unless the circumstances exclude every other reasonable hypothesis except that the accused is guilty. Proof which amounts only to a strong suspicion or mere probability is insufficient. Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969). Prom the facts in the record, the State has merely shown a slight possibility or weak suspicion that appellant had knowledge and control of the dangerous drug. Even when construed in the light most favorable to the State, the evidence, we conclude, is insufficient to sustain the conviction.”

See also Walker v. State, Tex.Cr.App., 513 S.W.2d 39; Randolph v. State, Tex.Cr.App., 505 S.W.2d 845; Prejean v. State, Tex.Cr.App., 480 S.W.2d 652.

In the instant case, there was no identification by complainant Sibley or his sister, Mrs. Welch, of the men who committed the robbery. Mrs. Wallen did not recognize or identify either of the two men who left the parked car and came back to it, or of either of the two men who remained in the car. She identified the car only by the license plate and color, and did not testify as to the make of the car. Her testimony that four black men left in the car with license number NPD 305 corresponded with the fact that four black men were later arrested in a blue car bearing that license. However, no identifiable stolen property was found in the car or in possession of any of its occupants. Three of the bills, the twenty-dollar bills, were not of the denomination mentioned by Sibley as having been taken in the robbery. There was evidence by officer Dew that appellant said he was a clothes salesman and that samples of the clothes he sold were in the car. Although two pistols were found in the back seat of the car, the nearest to showing one of them may have been used in the robbery was testimony by Sibley and Mrs. Welch that the one found on the right side of the back seat and introduced as State’s Exhibit No. 2 looked like the gun used by the robber. Appellant was seated in the driver’s seat when stopped and arrested.

Furthermore, although a watch belonging to complainant Sibley and stolen by the robber was in the State’s possession, the State made no effort to connect it with appellant or any of the occupants of the car when it was stopped by the officers. Neither Mrs. Welch’s watch nor any of the checks taken by the robbers were found in possession of the car’s occupants.

We find the circumstantial evidence insufficient to exclude every reasonable hypothesis except guilt of the appellant.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: GUPTON, Judge.

text:
    Ex parte Sylvester ADAMS.
    No. 52716.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.

      Melvyn Carson Bruder, Dallas, for appellant.
    Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GUPTON, Judge.

This is a post-conviction application for writ of habeas corpus under Art. 11.07, V.A. C.C.P.

Petitioner’s pro se application for writ of habeas corpus raises inter alia the issue of double jeopardy and the doctrine of carving in relation to two convictions for violations of Art. 725b, V.A.P.C.

The record reflects petitioner was indicted in Dallas County in Cause No. C72-7101 — MK for possession of marihuana and in Cause No. C72-7102-MK for possession of heroin, both offenses alleged to have been committed on July 19,1972. On October 24, 1972, petitioner pleaded guilty to both offenses and the jury assessed punishment at 30 years in each case. No appeal was taken from these convictions.

The trial court entered an order recommending petitioner be granted relief and entered the following findings of fact based on the records in the cases:

“4. The convictions in both cases were based on the same evidence. The narcotic drugs involved in both cases were seized virtually simultaneously. Both convictions constitute violations of the same statute — Tex.Penal Code, art. 725b (1925).”

Although this Court is not bound by the findings of the trial court in a habe-as corpus proceeding, we find the trial court’s summary of the facts is correct. It is clear the simultaneous possession of marihuana and heroin constituted a single offense. Ellis v. State, Tex.Cr.App., 502 S.W.2d 146. The doctrine of carving mandates that one of the two convictions is invalid. Jones v. State, Tex.Cr.App., 482 S.W.2d 194.

The record does not reflect which verdict was received first or which judgment was entered first. Presumptively, petitioner was first indicted for possession of marihuana since the indictment number in that case is a lower number than the indictment for possession of heroin. Thus we assume petitioner’s plea of guilty and conviction for possession of marihuana in Cause No. C72-7101-MK was valid and pri- or in time to the conviction for possession of heroin in Cause No. C72-7102-MK. See Ex parte Calderon, Tex.Cr.App., 508 S.W.2d 360.

The relief requested by petitioner is granted to the extent the judgment and sentence in Cause No. C72-7102-MK is voided and the indictment in that case is dismissed. The conviction for possession of a narcotic drug in Cause No. C72-7101-MK is still a valid sentence and is not disturbed by this ruling.

It is so ordered and a copy of this opinion shall be sent to the Texas Department of Corrections.

      . We have reviewed the other three allegations in the pro se application for writ of habeas corpus in which petitioner attacks the legality of his confinement for conviction in Cause No. C72-7101-MK and find them to be without merit. All relief requested with respect to that conviction is denied.


author: ODOM, Judge.

text:
    Melvin Leroy HOAGLAND, Appellant, v. The STATE of Texas, Appellee.
    No. 52839.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.
    Richard M. Price, Abilene, for appellant.
    Edward R. Paynter, Dist. Atty., Patricia A. Elliott, Asst. Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for delivery of a controlled substance, tetrahy-drocannabinol. A guilty plea was entered and punishment was assessed by the jury at five years.

The sole ground of error presented in this appeal is that the trial court committed reversible error in denying appellant’s motion to extend time for filing of the statement of facts. Art. 40.09(3), V.A.C.C.P. Appellant does not challenge the validity of the guilty plea. We hold that the trial court’s denial of appellant’s motion was not error.

The record reflects that Hoagland gave notice of appeal on October 31, 1975. On the same day he informed the trial court he would obtain a new attorney for appeal purposes. The departing trial counsel informed appellant that he had but ninety days to perfect his appellate record. The appellant stated that he was aware of this time limitation.

On January 30, 1976, ninety-one days after notice of appeal, appellant filed two motions: one requesting appointment of appeal counsel and a free transcription of the court reporter’s notes, and the other asking for an extension of time for filing of the statement of facts. The trial court, after a hearing, found appellant indigent and appointed counsel for appeal purposes. The motion for extending time for filing of the statement of facts was denied on the basis that no good cause had been shown for such extension as required by Art. 40.-09(3), supra.

The denial of the motion to extend time for filing the statement of facts was not an abuse of discretion by the trial court. The record shows that appellant was well aware of the ninety day time limit for filing of the statement of facts. Despite this knowledge, appellant did not attempt to obtain a statement of facts or an extension of the filing time until ninety-one days after notice of appeal was given.

The record also reflects that appellant indicated to the trial court that he would retain new counsel for appeal. Hoagland did not take any steps to secure a determination of his indigency for purposes of obtaining counsel for appeal and a free transcript of the court reporter’s notes until expiration of the ninety day period allowed for filing the statement of facts. This Court has held that it is incumbent upon the appellant, whether indigent or not, to exercise due diligence in securing a copy of the court reporter’s notes. Weeks v. State, Tex.Cr.App., 521 S.W.2d 858; Ex parte Thorbus, Tex.Cr.App., 455 S.W.2d 756; Conerly v. State, Tex.Cr.App., 412 S.W.2d 909.

It should be noted that indigents are also required to adhere to the time requirements imposed by Art. 40.09, Y.A.C.C.P. In Rhoda v. State, Tex.Cr.App., 514 S.W.2d 937, 939, we held:

“The right of an indigent appellant to a free statement of facts is independent of the requirement that a statement of facts, free or otherwise, be requested at the appropriate stage of the appellate process. If that requirement not be met, the right to have it included in the record on appeal is waived.”

The appellant in the case at bar did not make any request for a copy of the statement of facts until after the time for filing provided by Art. 40.09(3), supra, had lapsed. This was not the appropriate stage in the appellate process to make such a demand.

The inaction of appellant, as shown by his tardy motions for appointed counsel, a free transcript of the court reporter’s notes, and an extension of time for filing the statement of facts, demonstrates a lack of diligence on his part. It was not an abuse of discretion for the trial court to conclude that no good cause was shown for granting the motion to extend the time for filing the statement of facts. Utsman v. State, Tex.Cr.App., 485 S.W.2d 573.

The judgment is affirmed.

      . As provided by Art. 40.09(5), V.A.C.C.P.


text:
    Samuel MORALES, Appellant, v. The STATE of Texas, Appellee.
    No. 53060.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.

      Brinkley L. Oxford, Edinburg, for appellant.
    Osear B. Mclnnis, Dist. Atty., and Thomas Parker Beery, Asst. Dist. Atty., Edin-burg, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GUPTON, Judge.

Appeal is taken from a conviction for burglary under V.T.C.A., Penal Code, Sec. 30.02(a). The jury assessed punishment at 2 years’ confinement and a fine of $500.00 and recommended that appellant be placed on probation.

Appellant’s sole complaint on appeal is the trial court imposed four conditions of probation in violation of Art. 42.12, Sec. 3a, V.A.C.C.P. Appellant contends the following four probationary terms are not authorized conditions of probation under Art. 42.-12, Sec. 6, V.A.C.C.P.:

“1. That he maintain employment with the County of Hidalgo until that time that position is terminated and/or until further ordered by this Court; that, if the position with the County of Hidalgo is terminated prior to termination of probationary period, he secure another employment within a period of one month and maintain that employment until further ordered by this Court.
2. That he report to Mr. Adan Trejo, Alcoholism Counselor, out-patient Services, Tropical Texas Center for MHMR for evaluation, individual and family counseling or any other type services as seen necessary until further instructed by this Court.
3. That he support his dependents, to-wit: that he contribute one-fourth of his net pay to the support of his children until that time that a Court of this State dictates otherwise in a divorce settlement, or until further ordered by this Court.
4. That he associate with individuals of his own age and refrain from associating with individuals younger than him.”

It appears conditions one and three more completely and explicitly define the general statutory conditions “work faithfully at suitable employment as far as possible” and “support his dependents”. As this Court said in Flores v. State, 513 S.W.2d 66, 69:

“There is always value in making all conditions explicit, primarily as an aid to the offender in increasing his understanding of what is expected of him. The impropriety of imposing conditions which achieve such a level of generality as to be of no particular value seems clear.”

However, probationary condition two, requiring appellant to report to an alcoholism counselor, is more than an expansion or explanation of a vague or uncertain statutory condition of probation. Art. 42.12, Sec. 6, supra, authorizes the court to require the probationer to report only to his probation officer. This requirement was made condition “e” of the terms of appellant’s probation.

It is well settled that the conditions of probation which the court may impose when probation is recommended by the jury are limited to those statutory conditions set forth in Art. 42.12, Sec. 6, supra. O’Neal v. State, Tex.Cr.App., 421 S.W.2d 391, 396. The court exceeded its authority in requiring as a condition of probation that appellant report to the MHMR counselor and in prohibiting association with any person younger than appellant, because this implies any person younger than appellant would be disreputable.

The judgment recites appellant pleaded not guilty, but the record reflects the plea was guilty. The judgment is reformed to reflect appellant pleaded guilty and probationary conditions 2 and 4 are hereby deleted from the conditions of probation as set forth in the judgment. As reformed, the judgment is affirmed.

ODOM, J., concurs in the results.

      . The statutory conditions include that probationer shall “avoid persons or places of disreputable or harmful character.” See Art. 42.12, Sec. 6, supra.


text:
    Samuel Joseph POLLINZI, Appellant, v. The STATE of Texas, Appellee.
    No. 53302.
    Court of Criminal Appeals of Texas.
    Oct. 6, 1976.
    Melvyn Carson Bruder, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Dallas, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of possession of heroin. The appellant waived trial by jury and entered a plea of guilty before the court. The punishment is imprisonment for 10 years.

The appellant contends that the trial court erred in trying this case without affording the appellant’s counsel ten days to prepare for trial following the appointment of counsel as required by Art. 26.04, V.A.C. C.P. This contention must be sustained and the judgment reversed.

The indictment was returned on September 3,1974; counsel was appointed to represent appellant on September 6, 1974; on September 9, 1974, appellant was convicted.

Art. 26.04(b), Y.A.C.C.P., provides:

“The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.”

The record does not contain a written waiver signed by appointed counsel and the accused waiving the ten days’ time provided to prepare for trial. The requirement of Art. 26.04(b), supra, is mandatory. Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App.1972), and cases there cited.

Unlike Meeks v. State, 456 S.W.2d 938 (Tex.Cr.App.1970), and other like cases cited in Grothers v. State, supra, the record in this case does not affirmatively show that court-appointed counsel had sufficient time to prepare for trial and that the appointment was made merely to allow payment for services.

For the failure of the record to show compliance with Art. 26.04(b), supra, the judgment must be reversed and the cause remanded.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.