author: OLIVER, Judge.

text:
    Jerry Ray PETREE, alias, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    June 5, 1975.
    Certiorari Denied by Supreme Court Aug. 25, 1975.

      B. Rex McGee, Knoxville, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Tom Jennings, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Knoxville, for defendant in error.
   OPINION

OLIVER, Judge.

Represented in his trial and here by eminently qualified retained counsel, Petree is before this Court upon his appeal in the nature of a writ of error contesting his conviction of third degree burglary for which he was sentenced to imprisonment in the State Penitentiary for not less than three nor more than four years (TCA § 39-904), upon an indictment charging him and Jack Patten Hatcher and Gene Galyon with breaking and entering the Knoxville business house of Kentucky Fried Chicken of Tennessee, Inc., with the felonious intent of committing larceny therein. Upon motion of each of these co-defendants, a severance was granted and Hatcher and Galyon are not before this Court.

Although Petree does not directly challenge the sufficiency of the evidence in the usual manner, he does so in effect by insisting it fails to show he committed any trespass. In order to put this defendant’s insistence in proper perspective, we summarize the material evidence.

Don Galyon, brother of co-defendant Gene Galyon, was the manager of the Kentucky Fried Chicken store and worked part of the day on Monday, September 6, 1971, Labor Day. He drove up and parked outside the establishment about 10:00 p.m., which was closing time, as the assistant manager was locking the front door and instructed the latter to take one of the two deposits that were in the safe and hide it somewhere in the store. Accordingly, the assistant manager went back inside and took a deposit of $2200 and hid it under the front counter of the store and left the other deposit of $1700 in the safe. When he then locked the store and left, the manager was still sitting in front of the store in his car with his girl friend, one of the store’s employees. The assistant manager did not tell the manager where he had hidden the deposit removed from the safe.

About midnight, in response to a call to police headquarters that some people were on the roof of the Kentucky Fried Chicken store, police converged upon the scene and surrounded the store. About the time the officers got there, the manager arrived and opened the front door for them but declined to go inside when they asked him to do so. The manager’s brother was found sitting beside the safe in the office. The defendant was found in the space between the acoustic-tiled dropped ceiling and the roof. Both a metal ceiling vent and a revolving-type roof exhaust vent atop a connecting shaft had been removed, leaving a hole in the roof large enough to admit a man’s body. The co-defendant Jack Hatcher was found on the roof hiding behind another roof exhaust vent or an air conditioner. Neither the money nor anything else was removed from the store.

The defendant did not testify. He relies for his defense upon the testimony of a Knoxville Police Department detective who testified as a prosecution witness, and an Assistant District Attorney General called as defense witness. His custodial statement to the police was made the same morning he was arrested, September 7, 1971, after he was fully advised and waived his constitutional rights. He made a statement to the Assistant District Attorney General in the latter’s office on 6 April 1972 when he and his attorney appeared there unsolicited. The essential substance of the combined stories the defendant told those officials was that he met the manager of the Kentucky Fried Chicken store, the manager’s brother, and another man, at a tavern in Fountain City earlier in the evening and plans were made to burglarize the store that night; that the manager told them the back door of the store would be unlocked and that they could also enter it through a vent in the roof, told them there was more than $2,000 in the safe and how to get into it; that the manager left the tavern ahead of them and then the defendant and the other two men proceeded to the store and found the doors locked; that they waited awhile for the manager and when he failed to show up they entered the building through the roof vent and the police arrived almost immediately.

In his only Assignment of Error the defendant says the court erred in not instructing the jury “pertaining to conspiracy, agency of the manager, and attempting to commit a felony, to-wit: larceny.”

Although in his pre-trial statements above noted, the defendant implicated the store manager, as did the assistant manager as a prosecution witness, and by order of the court the manager’s name was added to the list of witnesses endorsed on the indictment upon motion of the District Attorney General, for some reason not apparent in the record he was not called as a witness. Nor does the record show that he went to the store about the time the police arrived because he had been informed or notified that the place was being burglarized. He was also arrested at the scene.

Nevertheless, upon this record it is immaterial whether the manager was involved in the burglary as an instigator or planner. That did not compel this defendant to commit the crime and did not absolve him for his willing participation with the intent and purpose of stealing money. The proof shows that the defendant and his co-defendants went to the establishment and entered it through the roof to carry out that purpose. By so doing they accomplished the burglary — the felonious breaking and entering with the intent to steal. This defendant and his co-defendants were charged with burglary and the proof shows they completed that felony.

By way of explaining the charged intent to steal, the court defined larceny for the jury; read TCA § 39-603 proscribing, among other things, attempts to commit any felony punishable by imprisonment in the penitentiary when the punishment is not otherwise provided, and also fully covered the definition and essential elements of attempt to commit a crime; and instructed the jury that if they found from the proof beyond a reasonable doubt that the defendant attempted to break into the Kentucky Fried Chicken store or aided and abetted others in an attempt to do so, with the intent to steal money or goods therein, he could be convicted of that offense and that his punishment could be assessed at confinement in the penitentiary for not less than one nor more than five years; and also that the jury could assess the punishment for that offense at a fine not exceeding $500 and imprisonment in the county penal farm for any period not more than one year. (TCA § 39-603.)

Under that charge and under the law, the jury could have convicted the defendant of an attempt to commit third degree burglary or of attempt to commit a felony, even though the burglary — the felonious breaking and entering the building— was completed. Hall v. State, 503 S.W.2d 210 (Tenn.Cr.App.1973).

The indictment in this case, omitting the formal parts, charged the defendant and his co-defendants with feloniously and forcibly committing burglary by breaking and entering the Kentucky Fried Chicken store with the intent “then and there to commit a felony, to-wit: A larceny, that is to say, with the intent to feloniously take, steal and carry away the goods and chattels then and there to be had and found in said house and so to deprive the true owner aforesaid, of the use thereof against his will and consent, . . . ” Thus, it will be observed, they were not charged with larceny. The proof shows they did not commit larceny, which is defined by statute as “the felonious taking and carrying away the personal goods of another.” (TCA § 89 — 4202.) The essential elements of larceny are trespass and feloni-ously taking possession of and carrying away another’s goods. Caruso v. State, 205 Tenn. 211, 326 S.W.2d 434.

Burglary is breaking and entering a house or building of another “with the intent to commit a felony.” TCA §§ 39-901, 39-903, 39-904. Many cases attest that commission of various felonies other than theft may be a burglar’s purpose and intent in breaking and entering a building. It would appear irrefutable, therefore, that larceny is not necessarily a part of or included in the crime of burglary. “The infallible test for determining whether a given offense is lesser than and included in the one charged, is that the lesser included offense must be such that it is impossible to commit the greater without first having committed the lesser.” Yearwood v. State, 2 Tenn.Cr.App. 552, 561, 455 S.W.2d 612. (Emphasis supplied.) As the Supreme Court of this State said in Johnson v. State, 217 Tenn. 234, 243, 397 S.W.2d 170, 174:

“ . . . The true test of which is a lesser and which is a greater crime is whether the elements of the former are completely contained within the latter, so that to prove the greater the State must first prove the elements of the lesser.” (Emphasis supplied.)

It must be perfectly clear that in order to prove a charge of burglary with intent to commit larceny, it is not necessary first to prove that the defendant committed larceny when no larceny occurred — when, as in this case, nothing was taken from the burglarized premises. Indeed, absent any charge or proof of any other motive or purpose, it has long been settled that a presumption arises in such circumstances that the burglary was committed with the intent to steal, and that specific substantive proof of the felonious intent to steal is not indispensable to conviction of burglary charged to have been committed with that intent. Consummation of the intent to steal is not necessary to complete the crime of burglary. 13 Am.Jur.2d., Burglary § 52, p. 352; Vickery v. State, 62 Tex.Cr.R. 311, 137 S.W. 687 (1911); State v. Whitaker, Mo., 275 S.W.2d 316 (1955); Ex Parte Seyfried, 74 Idaho 467, 264 P.2d 685 (1953). We so held, quoting from these authorities, in Lee v. State, 489 S.W.2d 61 (Tenn.Cr.App.1972). And in Duchac v. State, 505 S.W.2d 237 (Tenn.1973), our Supreme Court adopted and applied the same principle:

“Third degree burglary is defined in T.C.A. § 39-904 as ‘breaking and entering into a business house, outhouse, or any other house of another, other than dwell-inghouse, with the intent to commit a felony.’ In order to convict one of third degree burglary, the State must prove four distinct elements: (1) the breach, (2) the entry, (3) any house of another other than dwelling house, and (4) felonious intent. In the instant case, defendants entered the business house of another by breaking a pane of glass and unlocking the door from the inside. Thus, all the above elements are shown except that of felonious intent.
“The intent requirement is general in nature and there is no need to prove that the intruder succeeded in carrying out the intent for which the structure was broken into. Therefore, if one breaks into the dwelling of another with the intent to commit murder or any other felony he is guilty of burglary even if he leaves without finding his intended victim or without having committed any felony in the dwelling. See People v. Schwab, 136 Cal.App.2d 280, 288 P.2d 627 (1955); Ragland v. State, 71 Ark. 65, 70 S.W. 1039 (1902); Walker v. State, 44 Fla. 466, 32 So. 954 (1902). It is apparent from the circumstantial evidence in this case that the defendants possessed the requisite felonious intent at the moment they broke the window pane and gained entry. At that very moment, the offense of third degree burglary was committed. Thus, the Court of Criminal Appeals was correct in upholding defendants’ conviction on this charge.”

In Duchac, supra, the Court clearly declined to follow its 1922 holding in Hughes v. State, 147 Tenn. 241, 246 S.W. 834 (never since reiterated as a rule of substantive law and only referred to once subsequently by dictum in Rushing v. State, 196 Tenn. 515, 268 S.W.2d 563 — a case wherein the defendant was charged with rape and convicted of assault and battery with intent to commit rape) that larceny and attempt to commit larceny were lesser included offenses under an indictment for third degree burglary which charged the defendant, as in this case, with breaking into a business house with the intent to steal personal property therein contained, but did not charge a theft. An established rule is that a later opinion prevails over an earlier conflicting one. McCleary v. Morgan, 60 Tenn.App. 578, 449 S.W.2d 440; 20 Am.Jur.2d., Courts § 232.

So, upon principle and authority, we conclude and hold that the law of this State now is that larceny and attempt to commit larceny are not essential elements of burglary and, hence, are not lesser included offenses of that crime.

Of course, as is sometimes done, a count of burglary in an indictment may also include a charge of stealing specified articles from the burglarized premises. In such a case the defendant may be convicted of larceny of the goods or property if the proof shows beyond a reasonable doubt and to the satisfaction of the jury that he did so. Chapple v. State, 124 Tenn. 105, 135 S.W. 321. But, in such a case the conviction of larceny is proper because of that distinct and separate crime being also specifically charged, and not upon the theory that it is a lesser included offense of burglary.

The trial judge correctly declined the defendant’s request to instruct the jury concerning attempt to commit larceny.

Nor was it error to decline the requested instructions concerning conspiracy. That request and the assignment here concerning it represent the defendant’s insistence that the burglary of the Kentucky Fried Chicken store was planned and set up by the manager, Don Galyon. We have held this insistence, even if true, is immaterial. Moreover, the defendant and his co-defendants were not charged with conspiracy in this case, a separate and distinct crime proscribed by TCA § 39-1101, et seq. It would have been error for the trial judge to charge the jury concerning an offense for which the defendant was not on trial. Church v. State, 206 Tenn. 336, 333 S.W.2d 799.

Affirmed.

RUSSELL and GALBREATH, JJ., concur.


source: Caselaw Access Project

author: RUSSELL, Judge.

license: Public Domain

text:
    Johnny BUSH, Jr., Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    June 16, 1975.
    Certiorari Denied by Supreme Court Sept. 15, 1975.

      James L. Woodward, Franklin, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, Elmer Davies, Dist. Atty. Gen., Franklin, Douglas T. Bates, III, Asst. Dist. Atty. Gen., Center-ville, for defendant-in-error.
   RUSSELL, Judge.

OPINION

This is an appeal in the nature of a writ of error by Johnny Bush, Jr., from his grand larceny conviction in the Circuit Court of Williamson County. Punishment was set at not less nor more than three (3) years in the penitentiary.

On the night of November 8, 1973, approximately five hundred pounds of copper wire belonging to the Louisville & Nashville Railroad Company was cut from active lines in Williamson County and taken away. When the lines went dead the site of the theft was shortly determined, and an on-site investigation disclosed the quantity and type of wire stolen. Potential purchasers of the stolen wire were immediately advised to be on the look-out for it; and the very next morning an employee of such a dealer, Steiner-Liff Iron and Metal Company in Nashville, advised authorities of a purchase of four hundred eighty-two pounds of such wire from one Mike Maynard, who delivered it in a car traced to plaintiff-in-error and who was accompanied by two other men. Railroad authorities identified this as the stolen wire.

Both Mike Maynard, who is a brother-in-law of plaintiff-in-error, and Charles Eric Bennett, testified for the State and said that the theft was the work of themselves and Johnny Bush, Jr., the plaintiff-in-error. Both of them had already pled guilty and were serving their sentences. They involved Bush as the one who furnished the car for transportation, and as the person who actually cut the wire down from the poles for them to roll up. They said that all three shared equally in the money received for the wire, receiving roughly eighty dollars ($80.00) each.

Johnny Bush, Jr., did not testify, nor offer any proof in his defense.

Four errors are assigned. It is said that the weight of the evidence preponderates against the verdict and in favor of innocence. On the contrary, the evidence of guilt is undisputed, except by an incredible exculpatory statement given to officers by Bush immediately after his arrest, and which will be dealt with in more detail subsequently.

It is contended that there was no evidence to corroborate the testimony of the two accomplices. Bush admitted being with the other two men immediately before the theft, of leaving his car for their use, and of accompanying them to Steiner-Liff in his car the next morning. Another witness, one Jack Watkins, testified that a car similar to defendant’s was parked near the area of the theft. The fact that the theft was apparently carried out in plaintiff-in-error’s car, and the stolen wire delivered in same the very next morning by him and two others, strongly points to his guilt even without the testimony of the accomplices. The corroboration necessary to support the testimony of an accomplice is some fact, testified to entirely independent of the accomplice’s testimony, which, taken by itself, leads to the inference, not only that a crime has been committed, but that the defendant is implicated in it, and the corroboration must consist of some fact that affects the identity of the party accused. State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460 (1963). The evidence herein clearly passes this test. By his own admission the stolen wire was in his possession in his automobile shortly after the theft, and the innocent cast which he sought to give to that possession was logically rejected by the jury.

The remaining two assignments of error are somewhat inconsistent. It is contended that it was error to allow into evidence post-arrest statements made by Bush, “there being no evidence that the defendant later waived his right to remain silent”; and that it was error to charge the jury as to a confession, “in view of the fact that no confession by defendant was admitted into evidence”.

What happened was that after his arrest and full Miranda warning, Bush, while admitting that he thought that he understood the rights explained and read to him, refused to sign a written waiver, being unable to read and write, because, “I didn’t know what it was”. Bush, upon the suppression hearing, testified further: “I thought though I understood when he asked me my rights I thought I understood them, I ain’t too sure if I did or didn’t at the time. That’s what I told him, I think I do.” When the trial judge asked him why he didn’t sign the written waiver he answered: “Well, I guess there’d be no reason, just that I don’t sign nothing that I don’t know what it is. * * * I told them I couldn’t read and write and I didn’t know what the paper was and I wasn’t going to sign it.” After refusing to sign the waiver Bush readily answered the questions asked him, told the investigators that he had been out with Mike Maynard and Eric (Bennett) that afternoon in his car, that he left his car at Mike’s trailer about 5:30 p. m. and drove his truck to his sister’s house, that Mike and Eric came to the sister’s house about 10 p. m. and that he didn’t know where they had gone or what they had done. He further told the investigators that the following morning he drove his car, accompanied by Mike and Eric, to Steiner-Liff, where “Mike sold something”. He claimed that he didn’t know what it was and didn’t get any money himself.

While this statement was undoubtedly meant to be exculpatory, it did admit to circumstances which tended to show guilt. The statement was voluntarily made, after full Miranda advice, so was not illegally obtained. Signing a written waiver is not the exclusive way to manifest a valid waiver of Miranda rights. Voluntary and spontaneous response to questions, after full advice admittedly understood, manifests such a waiver, McGee v. State, 2 Tenn.Cr.App. 100, 451 S.W.2d 709. This is especially true where the statements are facially exculpatory. There was no claiming of the right to remain silent, or of having an attorney present; but merely the refusal to sign anything. This was followed by a voluntary response to interrogation, with the answers given designed to be self-serving. No Miranda violation is present in such a context.

Finally, the trial judge charged the jury: “If oral or written confessions have been proven in this case * * * ”, followed by the law on the subject. At the conclusion of the whole charge special requests were asked for, and the only one tendered on behalf of the defendant was given.

The trial judge did not charge that a confession was in evidence. Since the Mi randa rule applies to confessions, and had been argued so strenuously in attempting to suppress the content of the post-arrest interrogation, the trial judge apparently deemed the conditional charge on confessions appropriate.

While no literal confession was introduced, the charge did not say that one had. We find no prejudicial error.

The conviction is affirmed.

WALKER, P. J., and DUNCAN, J., concur.


author: WALKER, Presiding Judge.

text:
    Will Herbert GARRETT and Roger Dale Maupins, Petitioners, v. STATE of Tennessee, Respondent.
    Court of Criminal Appeals of Tennessee.
    June 25, 1975.
    Certiorari Denied by Supreme Court Nov. 3, 1975.
    George E. Mudter, Jr., Nashville, for petitioners.
    R. A. Ashley, Jr., Atty. Gen., Robt. E. Kendrick, Deputy Atty. Gen., Nashville, Edward M. Yarbrough, Asst. Dist. Atty. Gen., Nashville, for respondent.
   WALKER, Presiding Judge.

OPINION

After an evidentiary hearing, the trial judge found to be without merit the petitioners’ claims for postconviction relief and dismissed their petition. We agree and affirm.

The petitioners, Will Herbert Garrett and Roger Dale Maupins, are serving life sentences for murder in the perpetration of robbery after their pleas of guilty in Davidson County Criminal Court on February 5, 1973. Maupins was represented by retained counsel and Garrett was represented by the public defender. They contend they did not have effective representation of counsel and that their attorneys told them that any sentence they received would be modified to not more than five years nor less than three years. They also say their counsel did not adequately investigate the case.

By their sole assignment of error, the petitioners insist that the court erred in dismissing their petition because the proof at the hearing established that their pleas of guilty were not knowingly and intelligently made upon the advice of competent counsel.

Maupins testified that his retained counsel conferred with him two or three times for five or ten minutes each and advised him to plead guilty for a life sentence and he would get the petitioner out in three to five years; if he went to trial he could get 99 years. Maupins said if he had known it would require 13 years and seven months he would not have entered the guilty plea. He acknowledged that he voluntarily signed the motion for a waiver of jury, voluntarily signed the plea of guilty and voluntarily signed the waiver of appeal. He says he swore falsely at the guilty plea hearing. He has an 11th grade education.

Maupins’ mother testified the attorney said the amount of time her son would have to serve would be from six to eight years on the plea of guilty and that otherwise he could receive as much as 99 years on conviction or “fifty flat years”; and that was the primary reason she advised him to plead guilty. She also testified the attorney did not say that her son would have to serve only from three to five years.

Garrett testified his court-appointed attorney told him three to five years would have to be served on a life sentence; he would not have entered his guilty plea except on that expectation. He admitted signing the three waivers but only after he thought he could get out in three to five years. His mother testified the attorney told her the best thing for her son was to plead guilty for a life sentence; that he would only serve three to five years.

The state introduced the guilty plea proceedings at which the trial judge patiently explained the petitioners’ rights, addressed them personally to determine that the pleas of guilty were voluntarily and knowingly entered, and that there was a factual basis for the pleas. The record of this proceeding complies with the guidelines laid down in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

The state called the assistant public defender who represented Garrett. This attorney testified he did not tell Garrett to plead guilty against his will or if he were not in fact guilty. He investigated Garrett’s alibi defense but found it did not cover the time period; he explained the felony-murder rule to him; that he never advised this petitioner or anyone else that he would be eligible for parole in three to five years; that he and Maupins’ attorney were together with the two defendants pri- or to the guilty pleas and nothing was said in his presence about a life sentence being served in three to five years.

Neither side called Maupins’ retained attorney. When counsel, retained or appointed, is challenged as ineffective and a postconviction hearing is held, the state should present the attacked counsel to show what occurred. The standard now employed in Tennessee to measure the competence of counsel, retained or appointed, is the reasonably effective assistance standard. Baxter v. Rose, Tenn., 523 S.W.2d 930, released 1975, at Jackson. The “farce and mockery of justice” rule is no longer the standard and distinctions between retained and appointed counsel are abandoned.

While the trial judge’s order and his remarks are more or less a finding of fact, we call attention to the necessity for explicit findings of fact and conclusions of law on all grounds presented as required by TCA 40-3818. See State v. Gilley, Tenn., 517 S.W.2d 7 (1974).

We have examined all of the proof and the pleadings in the case. From an examination of all the evidence, we find that neither attorney misled either petitioner into believing that a life sentence could be served in three to five years. We further find the attorneys rendered effective representation in accordance with the standards of Baxter v. Rose, supra, and that the pleas of guilty were voluntarily and knowingly entered on the advice of competent counsel.

The judgment of dismissal is affirmed.

MITCHELL and RUSSELL, JJ., concur.


text:
    Billy Gene FERGUSON, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Aug. 5, 1975.
    Certiorari Denied by Supreme Court Nov. 3, 1975.

      Bernard E. Bernstein and L. Caesar Stair, III, Knoxville, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., John W. Gill, Jr., Asst. Dist. Atty. Gen., Knoxville, for defendant in error.
   WALKER, Presiding Judge.

OPINION

Billy Gene Ferguson was convicted of third degree burglary of the Wrangler Grill in Knoxville and was sentenced to three years in the penitentiary. From his conviction he appeals in error, first challenging the weight and sufficiency of the evidence.

The state’s evidence showed that in the early morning of November 27, 1972, Officers Baldwin and Lakin of the Knoxville Police Department stopped to investigate a white pickup truck at the intersection of Weisgarber Road and Kingston Pike when their attention was attracted to two men coming from beneath a railroad bridge and approaching the Wrangler Grill. These men knocked a padlock off the front door to the Grill and went back beneath the bridge and returned with some large object which they used to break the glass on an inner door.

The men apparently saw Officer Lakin as he came toward the building, and they fled. The officer positively identified the defendant, who ran under a street light and came within ten feet of him. In his description Officer Lakin said that the defendant had no mustache or beard. The officers were unable to apprehend either man. The key was in the pickup truck which had a drive-out license tag registered to the defendant. The officers removed the truck to the police car pound where about 10:00 p.m. the defendant and one Ralph Millsap came to claim it. Officer Lakin recognized the defendant at that time and arrested him. At the trial both Millsap and the defendant testified that the truck belonged to Millsap but the defendant was using it while Mill-sap repaired his automobile.

Testifying in his own behalf, the defendant denied any part in the burglary or connection with it. He said that the truck developed a loud rattling noise while he was on the interstate and he pulled off on Heiskel Street and parked it. By his testimony he taped the key to the steering column and hitchhiked to the home of Mr. and Mrs. Clyde Long where he spent the night on their couch. They corroborated his testimony about being at their home that night.

Ferguson and Mr. and Mrs. Long testified that at this time he had a mustache, long hair and a beard or goatee in contradiction to Officer Lakin’s testimony. A photograph taken at the jail the same day, however, showed that he did not have long hair, beard or mustache.

The jury did not believe the defendant’s alibi testimony and accredited the witnesses for the state. The evidence does not preponderate against its verdict. See State v. Grace, Tenn., 493 S.W.2d 474. The elements of third degree burglary were shown here. See Hindman v. State, 215 Tenn. 127, 384 S.W.2d 18. This assignment is overruled.

The defendant says the court erred in refusing his requests to instruct the jury on the lesser included offenses of injuring or defacing buildings (TCA 39-4504) and destroying, injuring, defacing, breaking or removing property of another (TCA 39-4534).

The court instructed on third degree burglary, attempt to commit a felony and criminal trespass but declined to charge on the above statutes as lesser included offenses.

In Hobby v. State, Tenn.Cr.App., 480 S.W.2d 554, we held that the trial judge did not err in declining a request to charge TCA 39-4504 in a second degree burglary prosecution. In Carmon v. State, Tenn.Cr.App., 512 S.W.2d 595, we approved the trial judge’s refusal to instruct on TCA 39-4534 in a larceny case.

A burglary may be committed without defacement of or injury to a building or fixtures and it may also be committed without destroying, injuring, defacing, breaking or removing property of another. These misdemeanors do not meet the test for lesser included offenses laid down in Yearwood v. State, 2 Tenn.Cr.App. 552, 455 S.W.2d 612. This assignment is without merit.'

The defendant urges that the trial judge violated Article VI, Section 9, of the Tennessee Constitution by commenting on the evidence when he instructed the jury:

“A very slight breaking is sufficient, as forcing open a door, picking or twisting off a lock, taking out a pane of glass, or breaking out a pane of glass, pulling down or raising up a window sash or opening a closed door.
“A slight breaking is sufficient, such as prizing open a locked door, opening a closed door, raising a closed window and other like acts.”

In State v. Crow, Tenn., 517 S.W.2d 753, our Supreme Court, in a third degree burglary case, approved the trial judge’s instruction on an entry:

“ ‘In considering whether a person has entered after breaking, the Court charges you that a person may enter by inserting the hand or the finger, or an instrument held in the hand, when such is done with the intent to commit a felony therein, and proof of entry of the entire body is not required.’ ”

Likewise, an instruction on breaking which includes examples should be considered a correct charge and not a comment on the evidence. This assignment is denied.

The defendant assigns as error that the court allowed into evidence his oral statements to Officer Lakin when he had made a pretrial motion for all statements and the district attorney general had replied there were none.

This is the second trial of the case, the first resulting in a mistrial. On the first trial the state attempted to introduce this statement and the trial judge ruled it inadmissible for failure of the state to comply with the statute. From that trial two months earlier, the defendant was aware of the statement and the witnesses present. He had ample notice and was not surprised. There was a substantial compliance with the provisions of TCA 40-2441. See May v. State, Tenn.Cr.App., 474 S.W.2d 172.

The defendant next says the court erred in allowing the assistant district attorney general to comment on items found in the truck as fruits of other crimes thereby implying that the defendant had committed those crimes. When the defendant objected to this evidence, the court sustained him at that time because he had not been connected with the truck. Later the state announced it would forego trying to introduce the evidence. The rulings on this question were in the defendant’s favor and there was no error here.

The defendant says the court erred in allowing on cross-examination proof of previous convictions because they were too remote in time.

On his direct examination, the defendant testified he was convicted of a crime when he was 20 or 21 years of age. He was 32 years old at the time of the trial. On cross-examination he admitted three prior convictions, apparently received in 1965. There was no objection to this testimony.

Further, these convictions were not too remote as a matter of law. Although our cases hold that convictions must not be too remote, they have not fixed any time limit for this rule. See Cooper v. State, 123 Tenn. 37, 138 S.W. 826. This assignment is overruled.

All assignments have been fully considered and found to be without merit. It results that the conviction is affirmed.

DWYER, J., and DICK JERMAN, Special Judge, concur.


author: DWYER, Judge.

text:
    Bobby L. CRUM, Petitioner, v. STATE of Tennessee, Respondent.
    Court of Criminal Appeals of Tennessee.
    Sept. 19, 1975.
    Certiorari Denied by Supreme Court Nov. 3, 1975.
    Donald J. Boarman, Johnson City, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., Etrula R. Trotter, Asst. Atty. Gen., Nashville, Lewis W. May, Dist. Atty. Gen., Mountain City, S. E. Widener, Asst. Dist. Atty. Gen., Johnson City, for respondent.
   DWYER, Judge.

OPINION

The question presented in this appeal is whether an indigent is denied constitutional process when the trial court disallows his subpoenaing a private expert witness to determine his mental competency to stand trial.

The trial court dismissed his petitions for post conviction relief after an evidentiary hearing.

The petitioner is incarcerated as a result of entering guilty pleas to committing the offenses of violating the age of consent with punishment of confinement for not less than three nor more than ten years and for committing the offense of rape in two cases with resulting confinement of nine years. He was represented at his guilty pleas by the public defender who testified at the evidentiary hearing.

The evidence reflects that prior to petitioner’s entering his pleas he had been examined at Central State and found not competent to stand trial. A jury was empaneled and petitioner was found to be presently insane. The petitioner was then committed under that directive to Central State and after a period of months he was certified by the doctors of that institution to be competent to stand trial.

On return to the Washington County Criminal Court after being fully advised by counsel of his options he elected to plead guilty.

We note the public defender, who testified at the hearing, was the moving force behind petitioner being committed to the hospital when on initial contact he found, upon conversing with petitioner, he was not oriented.

The public defender also testified that on petitioner’s return after being found competent that petitioner could advise with him and was oriented. He further stressed that he had advised petitioner of all of his rights, and the full range of punishment that he could receive. He stated that the petitioner was advised that he could receive the lesser penalties on his pleading guilty and that petitioner had taken a couple of weeks to consider his options before entering the pleas. He acknowledged that his motion for the services of a private doctor was not renewed following petitioner’s return after being found competent by the Central State Hospital doctors.

The trial court found that petitioner was not denied constitutional process in his not being allowed to subpoena a private psychiatrist. With this we agree.

The theory of petitioner to support his claim of denial of constitutional process is that the officials of Central State being employees paid by the state would cause them to slant their testimony in favor of the state. He then reasons that a person of means could obtain the services of a private doctor, therefore, he should as an indigent have the same right. However, Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341; D.C., 341 F.Supp. 853, holds unequivocally that the state is under no obligation to indigents to match fully the legal arsenal available to a man of means.

Additionally, we think the premise of petitioner is tenuous in its best light for, if the court allowed process for a private doctor, the state would also be paying for his services.

We think the question presented here is without merit. See Coffins v. State, Tenn.Cr.App., 506 S.W.2d 179, 187.

However, the controlling question, as we view the evidence in this record, is that the trial court found as a matter of fact and law petitioner’s guilty plea was intelligently, knowingly and freely entered. Therefore, his guilty plea has foreclosed all non-jurisdictional defects, see Little v. State, 4 Tenn.Cr.App. 175, 469 S.W.2d 537. His findings are given the weight of a jury verdict here, see Parker v. Russell, 2 Tenn.Cr.App. 130, 136, 451 S.W.2d 722. We think the evidence supports that ruling.

The judgment of the trial court is affirmed.

WALKER, P. J., and JERMAN, Special Judge, concur.


author: DOUGHTY, Justice.

text:
    Carla Deronda GREGORY et al., Petitioners, v. TEXAS EMPLOYERS INSURANCE ASSOCIATION, Respondent.
    No. B-5316.
    Supreme Court of Texas.
    Nov. 19, 1975.

      Kronzer, Abraham & Watkins, Tom Edwards and Gregory H. Laughlin, Houston, for petitioners.
    Fulbright & Jaworski, Dixie Smith and H. Lee Lewis, Jr., Houston, for respondent.
   DOUGHTY, Justice.

This is a workmen’s compensation case. Carl Albert Gregory, an employee of Dow Chemical Company, died as a result of injuries he received while working on his employer’s premises. The Industrial Accident Board awarded death benefits to Carla Der-onda Gregory and Sotonya Lynn Gregory, which award Texas Employers’ Insurance Association, Dow Chemical’s compensation carrier, appealed to the district court. The trial court entered judgment on a jury verdict awarding claimants full compensation benefits. The Court of Civil Appeals has reversed the judgment of the trial court and entered judgment that claimants take nothing. 521 S.W.2d 898.

Carl Gregory’s death resulted from injuries sustained when he fell from the roof of a building where he worked at the Dow Chemical plant in Freeport, Texas. At trial all relevant facts were stipulated except the question of whether Gregory’s death was the result of self-inflicted injury and thus excepted from coverage by Article 8309, Section 1 of the Workmen’s Compensation Act. Only one issue was submitted to the jury:

Was the death of Carl Albert Gregory the result of intentional self-inflicted injury on his part?

To which issue the jury answered:

It was not the result of intentional self-inflicted injury on his part.

There was no objection to this issue.

The Court of Civil Appeals has held that the evidence conclusively establishes as a matter of law that Gregory died of injury caused by his willful attempt to injure himself. In so holding, the Court of Civil Appeals was in error. We hold that the evidence does not conclusively establish that Gregory’s death resulted from intentional self-inflicted injury, and we remand the case to the Court of Civil Appeals for a determination of issues not decided by that court.

The facts and evidence of the case are adequately set out in the opinion of the Court of Civil Appeals and need not be repeated here. That court recognized that the testimony of Gregory’s two daughters and of his next-door neighbor was relevant to his intention to take his life. The court held nevertheless that the expert testimony of Wiley B. Noble and the testimony of Joseph H. Andrews, who saw Gregory after he left the roof and before he hit the ground, conclusively establish that Gregory intentionally jumped from the roof.

There is no direct evidence of suicide in this case. We have held, however, that “the lack of direct evidence does not prevent its being conclusive; an ultimate fact may be conclusively shown by wholly circumstantial evidence.” Prudential Insurance Co. of America v. Krayer, 366 S.W.2d 779, 780 (Tex.1963). As this Court has stated in Cavanaugh v. Davis, 149 Tex. 573, 582, 235 S.W.2d 972, 977 (1951):

While proof of an ultimate fact by other relevant facts and circumstances may sometimes be so conclusive even in the absence of direct evidence as to compel a finding of its existence as a matter of law, [citations omitted] this will be true only where reasonable minds might not differ as to the inference to be drawn.

The evidence shows that Gregory struck the ground upon his back, his feet pointing away from the building from which he fell. His head hit at a point 20 feet from the building. Mr. Andrews testified that from the moment he saw Gregory falling, which was approximately mid-way in his fall, his body remained in approximately the same attitude as when it struck the ground. The building measured 43 feet from the edge of the roof to the ground. The expert witness testified that in order for a person to strike the ground 20 feet from a building 43 feet high, he must have left the roof traveling at a velocity of 9.15 miles per hour. This testimony is uncontradicted. Mr. Noble also testified that it was his opinion that Mr. Gregory’s body was in the same horizontal position when it left the roof as when it hit the ground; that “[i]n my opinion it was a free fall from the top to the bottom”; and that there was no other way for Mr. Gregory to have obtained a velocity of 9.15 miles per hour except by running from the top of the building. On cross examination, however, counsel asked:

He could have hit some objects on the way down and still have wound up in the same relative position, true?

To which Mr. Noble replied, “That is true.”

The evidence shows that there is a stairway on the side of the building from which Gregory fell, with a platform approximately 25 feet above the ground and extending six feet, seven inches horizontally from the side of the building. The platform has a banister extending approximately three and one-half feet above its surface. A light fixture is attached to one corner of the platform, extending approximately six and one-half feet above the platform; an iron pipe is attached to the other corner and extends approximately ten and one-half feet above the platform. It is petitioners’ contention that Gregory could have struck some part of this structure during his fall, thus propelling him away from the building. The Court of Civil Appeals concluded that petitioners’ contention could not be reasonably inferred from the above evidence, because Gregory’s body would have been tumbling or turning had it struck anything in its fall, while the eyewitness’s un-contradicted testimony established that the body was not tumbling or turning. Even though we agree with the Court of Civil Appeals that its interpretation of the evidence is perhaps the most reasonable, we cannot agree that the evidence conclusively establishes that Gregory’s body did not strike any part of the platform after leaving the roof. In short, we do not believe that the evidence of the position of Gregory’s body during the second half of its fall and its distance from the building upon impact establishes as a matter of law that Gregory purposefully jumped from the roof with the intention of injuring himself. While the expert witness’s testimony must be taken as true insofar as it establishes facts, the opinions of the expert as to deductions from those facts is never binding on the trier of facts, even though not contradicted by an opposing expert. Luttes v. State, 159 Tex. 500, 324 S.W.2d 167 (1958). Mr. Noble’s opinion that Gregory had to run from the roof in order to reach the point where he struck the ground is a conclusion based upon the facts; we do not believe that it is the only possible conclusion warranted by the facts.

Respondent contends that this case is controlled by Prudential Insurance Co. of America v. Krayer, supra, because “the jury had to resort to pure fantasy and speculation in order to conclude” that Gregory’s death was not the result of self-inflicted injury. 366 S.W.2d at 782. We disagree. In Krayer respondent’s contention that the death was not a suicide depended upon the existence of a stranger who, according to respondent, must have shot the decedent; there was no evidence of this third person’s existence or presence at the time of decedent’s death, or that such stranger shot him. Here petitioners’ contention does not depend on the action of any unknown person, but only upon an interpretation of the facts as known, which interpretation we are unable to say is unreasonable. We hold that there was some evidence to support the jury’s finding that Gregory’s death was not the result of intentional self-inflicted injury-

Petitioners contend that respondent has admitted by its answer to a request for admission submitted pursuant to Rule 169, Texas Rules of Civil Procedure, that Gregory’s death was a compensable injury under the Workmen’s Compensation Act, and that petitioners are therefore entitled to judgment in their favor. Respondent answered “Admitted” to the following request:

That at the time of his death, Carl Albert Gregory was within the course and scope of his employment for the Dow Chemical Company at its Plant A, in Freeport, Brazoria County, Texas, as an operator.

We agree with the Court of Civil Appeals that this admission did not preclude respondent from asserting that Gregory’s death was not a compensable injury. The obvious basis of respondent’s case was that Gregory committed suicide, and it is clear that respondent did not intend to admit that Gregory’s death was compensable. Petitioners’ contention is overruled.

Respondent had before the Court of Civil Appeals a point of error challenging the sufficiency of the evidence to support the jury’s verdict. The court did not pass upon that point and we have no jurisdiction to consider it. We must therefore remand the case to the Court of Civil Appeals for its consideration of that point. Stanfield v. O’Boyle, 462 S.W.2d 270 (Tex.1971). Because we are remanding the case to the Court of Civil Appeals, we do not deem it necessary to consider petitioners’ other points of error. Respondent also has cross-points before this Court challenging the trial court’s exclusion of certain evidence. Since we must remand the case, we leave those points to be determined by the Court of Civil Appeals. Custom Leasing, Inc. v. Texas Bank & Trust Co., 491 S.W.2d 869 (Tex.1973).

The judgment of the Court of Civil Appeals is reversed and the case is remanded to that court for further proceedings in accordance with this opinion.


author: ROBERTS, Judge. ODOM, Judge.

text:
    Herbert Clifton SHEELEY, Appellant, v. The STATE of Texas, Appellee.
    No. 50682.
    Court of Criminal Appeals of Texas.
    Oct. 8, 1975.
    On Rehearing Nov. 26, 1975.
    Rehearing Denied Dec. 17, 1975.

      Robert G. Dohoney, Hillsboro, for appellant.
    Frank B. McGregor, Dist. Atty., Hills-boro, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant was convicted by a jury of the offense of aggravated robbery. The punishment, which was enhanced pursuant to Sec. 12.42(c), Y.T.C.A. Penal Code, was assessed by the jury at ninety-nine (99) years. This appeal followed.

Appellant contends that the indictment is fatally defective because it does not conclude with the phrase “Against the peace and dignity of the State.” An examination of the indictment reveals that appellant is correct, the concluding phrase being absent.

Art. 5, See. 12, Vernon’s Ann.Texas Constitution, provides in part:

“All prosecutions shall be carried on in the name and by authority of the State of Texas, and shall conclude: ‘Against the peace and dignity of the State.’ ”

Art. 21.02, Vernon’s Ann.C.C.P., provides that an indictment must conclude with the phrase “Against the peace and dignity of the State.” Under an unbroken line of authorities it has long been held that the omission of this concluding phrase in an indictment renders the same fatally defective. See Reese v. State, 139 Tex.Cr.R. 593, 141 S.W.2d 949 (1940); Herring v. State, 160 Tex.Cr.R. 597, 273 S.W.2d 421 (1954); American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). See also the other authorities listed under Art. 5, Sec. 12, Note 4, Vernon’s Ann. Texas Constitution, and Art. 21.02, Note 59, Vernon’s Ann.C.C.P.

The indictment being fundamentally defective, the judgment is reversed and the prosecution ordered dismissed.

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

Appellant was convicted of aggravated robbery; punishment, enhanced under V.T. C.A. Penal Code, Sec. 12.42(c) was assessed at ninety-nine years.

By prior opinion the conviction was reversed and prosecution ordered dismissed because the indictment omitted the concluding phrase, “against the peace and dignity of the State.” The State, by motion for rehearing, urged that the copy of the indictment in the record was not a true copy and that the original indictment closed with the required language. The motion was supported by a copy of the indictment certified as true by the clerk of the trial court. We therefore directed the clerk of the court below to send us the original indictment for our inspection. Art. 40.09(15), V.A.C.C.P. We now find that the copy originally before us was not a true copy and that the original indictment did in fact conclude with the required language.

Appellant contends in his brief that the trial court erred in admitting records of a prior conviction into evidence at the punishment stage of the proceedings. When the evidence was offered the trial court inquired if appellant had any objection, to which counsel replied, “No objection, your Honor.” In his brief appellant cites portions of the record prior to the admission of the complained of exhibit revealing a hearing outside the presence of the jury at which he urges proper objection was made. We hold any objection was waived or withdrawn by the subsequent explicit statement of counsel that he had no objection. Nothing is preserved for review.

The State’s motion for rehearing is granted; the reversal of the conviction is set aside and the judgment is affirmed.

DOUGLAS, J., not participating.


author: GREEN, Commissioner.

text:
    Obie TIPPINS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50223.
    Court of Criminal Appeals of Texas.
    Nov. 26, 1975.
    Gayle Goldstrich and Edwin L. Davis, Dallas, for appellant.
    Henry Wade, Dist. Atty. and W. T. West-moreland, Jr., Don Driscoll and Jon Spar-ling, Asst. Dist. Attys., Dallas, Jim D. Vol-lers, 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 murder. Punishment was assessed at life.

Considering the evidence in the light most favorable to the verdict, the record reflects that during the night of January 12, 1973, appellant killed the two year old deceased by beating deceased with his hands. The sufficiency of the evidence is not challenged.

In his seventh ground of error, appellant contends the court reversibly erred in admitting a number of instances of prior injuries suffered by deceased over his objection that the evidence did not connect him with such injuries.

Evidence was introduced by State’s witnesses that in the latter part of November, 1972, some “whelps” were found on deceased’s body. About a week later, there were cigarette burns all over deceased. Also, evidence was introduced of external injuries to deceased’s head, discovered about two days before the instant offense.

In none of the above instances was there any direct evidence that appellant had caused these injuries. The evidence does reflect that on each occasion appellant had access to deceased, and could have been the one who injured deceased. However, it also shows that others had equal access to deceased, and could have caused the injuries.

When appellant first raised his objection that the evidence failed to connect him with the prior injuries, the State assured the court that subsequent evidence would furnish the necessary connection. On the basis of this assurance, the court overruled the objection. The State placed on the witness stand several of the persons shown to have had the opportunity to have caused the injuries. Each denied responsibility for them, and each denied being present when deceased was injured, or knowing anything about their cause. One of these witnesses, a five year old boy, had, prior to the trial, admitted causing the “whelps”, but he retracted his admission at the trial.

The evidence placed a fifteen year old girl in the presence of deceased at or about the time he suffered the injuries on each occasion. It was shown that she had the same opportunity as did appellant to have caused them. However, she was not used as a witness, and the record contains no explanation of her absence. There is no evidence excluding her from responsibility.

After the State had closed its case, appellant in a hearing outside the presence of the jury moved to have the evidence regarding the prior injuries struck from the record and the jury instructed to disregard such evidence. The motion was not granted, and the evidence remained for the jury’s consideration.

Under the provisions of Article 1257a, V.A.P.C. (1925), evidence of the previous relationship between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide, is admissible. See Dunlap v. State, Tex.Cr.App., 462 S.W.2d 591. It has long been the law of Texas, however, that evidence of prior transactions should not be admitted against an accused unless the State is prepared to clearly prove that the accused committed the same. Landers v. State, Tex.Cr.App., 519 S.W.2d 115; Shaver v. State, Tex.Cr.App., 496 S.W.2d 604; Carmean v. State, 163 Tex.Cr.R. 218, 290 S.W.2d 240; Shepherd v. State, 143 Tex.Cr.R. 387, 158 S.W.2d 1010. See Ernster v. State, 165 Tex.Cr.R. 422, 308 S.W.2d 33. See also 23 Tex.Jur.2d, Evidence, Section 195, p. 300.

The proof showed only that the appellant and others had access to the deceased on the four occasions. Further, all of those who had access to the deceased on these occasions were not called to testify. As the appellant was never definitely shown to be connected to the prior injuries to deceased, the evidence of such injuries should not have been admitted. “It is error to admit evidence of another offense when the defendant is not shown to be the party guilty of the offense.” Landers, supra, quoting 1 Branch’s Ann.P.C., 2nd Ed., Sec. 188, p. 204. The evidence was prejudicial to the rights of appellant, and its admission, under these circumstances, was reversible error.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

DOUGLAS, J., not participating.


author: DALLY, Commissioner.

text:
    Johnny Robert WINDHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 50470.
    Court of Criminal Appeals of Texas.
    Nov. 26, 1975.

      Keith Woodley, Comanche, for appellant.
    Ed Paynter, Dist. Atty. and John Weeks, Asst. Dist. Atty., Abilene, 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 aggravated assault which was committed on August 24, 1974; the jury assessed punishment of imprisonment in the Texas Department of Corrections for 2 years.

This record presents fundamental error of which we must take cognizance and review in the interest of justice under the provisions of Art. 40.09, Sec. 13, V.A.C.C.P. See Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975). The charge which authorized the jury to find the appellant guilty of aggravated assault omitted one of the essential elements of the offense. Put another way, the charge permitted the jury to find the appellant guilty of aggravated assault under facts that would only support a conviction for simple assault. Cf. Mendoza v. State, 491 S.W.2d 888 (Tex.Cr.App.1973).

The appellant was prosecuted on a three count indictment; the first count alleges an attempt to murder; the second count alleges an aggravated assault by infliction of serious bodily injury; the third count alleges an aggravated assault by use of a deadly weapon. There was an attempt to instruct the jury on the theory presented by each count of the indictment. The jury by its verdict acquitted the appellant of the offense of attempted murder.

In one paragraph of the court’s charge there was an attempt to instruct the jury on the law of aggravated assault. That paragraph authorized the jury to find the appellant guilty of aggravated assault on either theory presented, that is, by use of a deadly weapon or by infliction of serious bodily injury. The jury’s verdict was general; it does not reflect upon which theory the jury found the appellant guilty. The paragraph of the charge referred to reads:

“Now if you find from the evidence beyond a reasonable doubt that on the occasion in question the Defendant, Johnny Robert Windham, did intentionally or knowingly or recklessly cause bodily injury to Jerry Turnbow by cutting him with a knife, but you further believe from the evidence, or you have a reasonable doubt thereof, that the Defendant did not intend to kill the said Jerry Turnbow, then you will find the Defendant guilty of an aggravated assault; or, if at the time and place aforesaid, you find from the evidence beyond a reasonable doubt that Defendant made an assault upon Jerry Turnbow by cutting him with a knife and inflicted upon him serious bodily injury, but you further find from the evidence that the Defendant did not intend to kill the said Jerry Turnbow, or if you have a reasonable doubt thereof, then you will find the Defendant guilty of an aggravated assault.”

The second part of the charge — that part following the semi-colon — instructed the jury satisfactorily on the law of aggravated assault by the infliction of serious bodily injury, but the first part of the paragraph fails to correctly instruct the jury on the law of aggravated assault by the use of a deadly weapon.

Under the provisions of the former Penal Code an assault committed with a knife was ipso facto aggravated assault. See Almarez v. State, 163 Tex.Cr.R. 268, 290 S.W.2d 676 (1956); Braswell v. State, 170 Tex.Cr.R. 243, 340 S.W.2d 302 (1960); Terrell v. State, 400 S.W.2d 566 (Tex.Cr.App.1966). However, under the new Penal Code an assault committed with a knife is not ipso facto aggravated assault.

A knife is not a deadly weapon per se. Abels v. State, 489 S.W.2d 910 (Tex.Cr.App.1973); Barnes v. State, 172 Tex.Cr.R. 303, 356 S.W.2d 679 (1962).

Since the instruction submitted to the jury failed to require the jury to find that the knife used in this assault was a deadly weapon, it omitted an essential element of the offense of aggravated assault and permitted the jury to find the appellant guilty of aggravated assault without finding that the knife used was a deadly weapon. See Art. 36.19, V.A.C.C.P.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, J., not participating.

      . Art. 1147(10), V.A.P.C. (1925) as amended by Acts 1955, 54th Leg., p. 1143, ch. 430, Sec. 1, provides:
      “An assault or battery becomes aggravated when committed under any of the following circumstances:

      “(10) When committed with a knife under circumstances not amounting to an intent to murder or maim.”

      . V.T.C.A. Penal Code, Sec. 22.02, provides:
      “(a) A person commits an offense if he commits assault as defined in Section 22.-01 of this code and he:
      “(1) causes serious bodily injury to another;
      “(2) . . .
      “(3) uses a deadly weapon.”

      . See Morrison and Blackwell, New P-'nal Code Forms, Sec. C 22.02 C, pp. 201-203; 2 Branch’s Ann.P.C. 3rd ed., Sec. 22.02, p. 188.


text:
    Jerry Paul MULLINS, Appellant, v. The STATE of Texas, Appellee.
    No. 50472.
    Court of Criminal Appeals of Texas.
    Nov. 26, 1975.

      John K. Coil, Houston, for appellant.
    Tim Curry, Dist. Atty., Stephen R. Chaney and Joe Shannon, Jr., Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State’s Atty. and David S. MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of exhibiting obscene matter, to-wit, an obscene motion picture. Punishment was assessed at a fine of $999.00 and one day in jail.

The record reflects that at all times pertinent to this case appellant Jerry Paul Mullins was the proprietor in charge of the operation of Jerry’s Art Flick No. 2, a theater in Fort Worth. On June 18, 1973, Police Officer Franks of the Fort Worth Vice Control and Intelligence Unit purchased a $3.00 ticket, entered the theater, and viewed the motion picture “LOVE LIES WAITING.” After seeing the entire film, he left and prepared an affidavit setting forth in detail the prurient nature of the film. On June 20th he presented this affidavit to Hon. Byron Matthews, Judge of the Criminal District Court No. 1 of Tarrant County. Judge Matthews, after reviewing the affidavit, issued his order directing the manager and operator of the theater, and all agents and employees thereof, to retain the film at the theater without secreting the same or making any alterations pending an adversary hearing. See Art. 527, Sec. 9, V.A.P.C. The hearing was set for June 20, 1973 at 2:30 P.M. Notice of such hearing was served at 11:40 A.M. on June 20. That afternoon Judge Matthews viewed the film and, finding that it was obscene and was being exhibited in violation of Art. 527, V.A.P.C., determined that probable good cause existed for the immediate issuance of a search warrant for its seizure. See West v. State, Tex.Cr.App., 514 S.W.2d 433; Soto v. State, Tex.Cr.App., 513 S.W.2d 931. The warrant was issued and the film seized. The affidavit and the instruments reflecting the above proceedings of Judge Matthews were introduced in evidence at the trial for the record only, and were not exhibited to the jury.

At the trial, in addition to other evidence, the film was introduced as State’s Exhibit 5, and was exhibited to the jury and was found by the jury to be obscene. The showing of the film is sufficient evidence for a determination of obscenity. West v. State, supra; Soto v. State, supra. See also Paris Adult Theatre v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446. The film is a part of the appellate record, and we have viewed it. We agree with the jury’s verdict that it meets the conditions of “hard core” obscenity set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) and in West and Soto, supra. See also Goodwin v. State, Tex.Cr.App., 514 S.W.2d 942.

We conclude that the film was not illegally seized by the officers as contended by appellant and that the evidence is sufficient to sustain the conviction.

In his second ground, appellant contends the court erred in overruling his motion for continuance filed on February 11, 1974, the day this trial commenced, alleging that his counsel was at that time engaged in an adversary hearing in Justice Court “which had been going on for weeks and will continue until at least March 20, 1974.”

Defense counsel testified on his motion before the court when the case was called as follows:

“In the middle of last month an adversary hearing was commenced in Judge Ashmore’s Court, and it was going on as late as last Saturday. On Saturday, Judge Ashmore recessed the Court until one o’clock today, and that Court would probably go on, if it had not been interrupted today, until about March 20th, or about two more months, at the pace it had been going.”

After the court overruled the motion, counsel proceeded into the trial of the instant case without further reference to the hearing in the Justice Court. The record reflects that prior to this trial he had engaged in a trial involving the same facts as the instant case but with different defendants, and was thoroughly familiar with the case. No harm is shown by reason of the overruling of the motion. No abuse of discretion is shown. Hernandez v. State, Tex. Cr.App., 492 S.W.2d 466.

In the third ground, appellant contends that he was denied a reasonable time in which to present written objections to the court’s charge.

The record reflects that the court’s charge was submitted to the counsel for both sides at 8:10 p. m. on February 12, 1974, when the evidence was closed. The court gave appellant fifty minutes to file any objections and instructions and excused the jury until 9:00 p. m. Appellant objected to this limited time, stating that he intended to file a number of objections. He asked that the time be extended to 9:00 o’clock the next morning. The court denied his request at 8:15 o’clock p. m., at which time, the record reflects, “both sides are now considering their exceptions and objections to the court’s charge.”

The next proceeding reflected in the record is the announcement by the court at 9:00 o’clock p. m. that he would allow both sides 30 minutes for argument. The record does not show what occurred between 8:15 and 9:00. When the court instructed the bailiff at 9:00 o’clock to bring in the jury, appellant again asked for more time, which request was denied by the court. Appellant thereupon dictated oral objections to the charge, which were overruled.

Article 36.14, V.A.C.C.P., as it read at the time of the trial in February, 1974, provided in part:

“Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of exceptions.” (Emphasis added).

Both of the above emphasized “shalls” have been held to be mandatory, and to require strict compliance. Gill v. State, Tex.Cr.App., 521 S.W.2d 866. This Court in appeals from trials prior to the effective date of the amendment noted in footnote 1, supra, will not consider objections to the charge unless same were filed in writing in the trial court and ruled on by the trial court. See Seefurth v. State, Tex.Cr.App., 422 S.W.2d 931. It is also required that counsel be afforded reasonable time in which to prepare and file objections and requested charges. See Gill v. State, supra; Bright v. State, Tex.Cr.App., 516 S.W.2d 193.

However, the trial court has discretion in determining when an appellant has been accorded a “reasonable time,” and a defendant will not be permitted to abuse his right to a “reasonable time” by waiting until he has already had a sufficient time and then asserting his right to additional time. See Gill, supra; Bright, supra; Bingham v. State, 163 Tex.Cr.R. 352, 290 S.W.2d 915; Rutherford v. State, 142 Tex.Cr.R. 440, 154 S.W.2d 478.

In Gill v. State, supra, the Court concluded that five minutes was an unreasonable time to allow counsel to prepare and submit written objections to the charge. In Bright v. State, supra, this Court found that the trial court abused its discretion in refusing any reasonable time. The time allowed was between 9:15 p. m., when appellant was handed a copy of the charge, and 9:20 p. m., when the trial court, refusing to grant the request for additional time, required counsel to dictate orally his objections. In McCarter v. State, Tex.Cr.App., 478 S.W.2d 524, the time granted counsel to prepare objections was not shown in the record, but the State conceded that such time was unreasonable.

Under the circumstances shown by the record in the instant case, we do not find the fifty minutes allowed by the court to be unreasonable. Neither do we find that the record reflects that counsel made reasonable efforts to utilize the time allowed him to follow the trial court’s instructions. Under the circumstances, we conclude that no abuse of discretion by the trial court is shown. Bingham v. State, supra; Rutherford v. State, supra; Lilley v. State, 100 Tex.Cr.R. 371, 273 S.W. 270.

The third ground of error is overruled.

The remainder of appellant’s grounds of error are merely listed, one following another, without any discussion, argument, reference to the record, or authorities. They do not comply with the requirements of Art. 40.09, Sec. 9, V.A.C.C.P. Nothing is presented for review. See Re berson v. State, Tex.Cr.App., 513 S.W.2d 572; Pearce v. State, Tex.Cr.App., 513 S.W.2d 539; Cowart v. State, Tex.Cr.App., 508 S.W.2d 613; Houston v. State, Tex.Cr.App., 506 S.W.2d 907.

The judgment is affirmed.

Opinion approved by the Court.

DOUGLAS, J., not participating.

      . Article 36.14, V.A.C.C.P., was amended by the 64th Legislature. See Chapter 253, House Bill No. 207, effective September 1, 1975. As amended, the above portion was changed to read as follows:
      “. . . The requirement that the objections to the court’s charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of and with the consent of the court, before the reading of the court’s charge to the jury, and are subsequently transcribed, endorsed with the court’s ruling and official signature, and filed with the clerk in time to be included in the transcript. Compliance with the provisions of this Article is all that is necessary to preserve, for review, the exceptions and objections presented to the charge and any amendment or modification thereof.


author: DAVIS, Commissioner.

text:
    Johnny LEWIS, Appellant, v. The STATE of Texas, Appellee.
    No. 50637.
    Court of Criminal Appeals of Texas.
    Nov. 26, 1975.
    W. John Allison, Jr., Dallas, on appeal only, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky, Jay Ethington and Bob Whaley, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for robbery. Punishment, enhanced under the provisions of V.T.C.A. Penal Code, Sec. 12.-42(d) upon the finding of the jury that appellant had been convicted of two prior felony convictions as charged in the indictment, was set at life.

The indictment alleged the primary offense occurred on or about May 3,1974, and the record reflects that trial was in February, 1975.

Appellant,. in his sole contention, urges that the evidence is insufficient to support the conviction.

The thrust of appellant’s contention is that the State has failed to sustain its burden in proving an essential element of the offense in that it was not proven that the appellant caused “bodily injury” to the complaining witness.

The pertinent portion of V.T.C.A. Penal Code, Sec. 29.02, defining the offense of robbery, provides:

“(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this Code and with the intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another;

Joy Bardo, secretary to the accountant for Southwest Airlines on the date in question, testified that, as was her custom, she picked up the day’s deposits at the airlines ticket counter at Love Field and started toward her office some hundred yards away where she was going to prepare a bank deposit. Bardo identified appellant as the person who grabbed the suitcase in which she was carrying the money while she was en route to the office. Bardo stated she had a “tug of war” with appellant, that she got the suitcase back from appellant and appellant “twisted my arm back and got the bag back and I still had hold of it.” Appellant then said “Don’t give me any blank bitch, give me the bag,” and Bardo released the bag in fear that “he [appellant] might hurt me.” Relative to any injury sustained at the time in question, the witness related that appellant hurt her arm, caused “physical pain” to her and as a result of appellant’s twisting her arm she sustained a small bruise to her arm.

V.T.C.A. Penal Code, Sec. 1.07 — Definitions — (a)(7) reads in pertinent part:

“(a) In this Code:
(7) ‘Bodily injury’ means physical pain, illness, or any impairment of physical condition.”

Appellant urges that the Legislature intended that a victim sustain greater injuries than that sustained in the instant case “to elevate ordinary purse snatching to robbery” and asks this Court to “define the ambit of pain that is sufficient to create the bodily injury condemned as robbery in Section 29.02(a)(1) . .

In Ramirez v. State, Tex.Cr.App., 518 S.W.2d 546, where Sec. 1.07(a)(7), supra, was attacked as being so vague as to be violative of due process, this Court said:

“The terms ‘physical pain,’ ‘illness,’ and ‘impairment of physical condition’ are terms of common usage, and when construed ‘according to the fair import of their terms,’ in the context used in Section 1.07(a)(7), supra, are not ‘so vague that men of common intelligence must necessarily guess at its meaning and differ as to their application.’ [citations omitted] A person of ordinary intelligence, who would be law abiding, can determine with reasonable precision what conduct it is his duty to avoid.”

A review of the victim’s testimony in the instant case reflects that in the course of forcibly taking the suitcase containing money away from the victim, appellant twisted the victim’s arm and caused her “physical pain.” We find that the State sustained its burden in proving the element of “bodily injury” and conclude the evidence was sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.

DOUGLAS, J., not participating.


author: ROBERTS, Judge.

text:
    Larry Jerry BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 50504.
    Court of Criminal Appeals of Texas.
    Dec. 3, 1975.
    Rehearing Denied Dec. 17, 1975.

      Neal B. Wheeler, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell Tem-pleton, Jay Ethington and Danny Garrigan, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

A jury found appellant guilty of aggravated robbery and assessed his punishment at twenty years.

Appellant contends that the trial court erred in overruling his objection to the prosecutor’s argument at the punishment hearing. We agree and reverse.

The State’s evidence showed that on June 22, 1974, the appellant entered the Seven-Eleven store at 2911 Ledbetter in Dallas. The complainant, Oscar Bell, was working in the store. After inquiring about the purchase of a watch, the appellant pulled out a gun and forced the complainant to give him all of the money in the cash register. The appellant also took money at gunpoint from a customer in the store and attempted to take money from the complainant’s brother, who entered the store during the course of the robbery.

The appellant took the stand and denied committing the offense. He also called as a witness Mabel Davenport, who corroborated his testimony concerning his whereabouts at the time of the offense.

At the punishment hearing the prosecutor argued:

“I’m not asking for more than what it’s worth. Thirty years, why? That’s the going rate, for a crime like this. No one got shot, no one got killed. We don’t have a murder case here. Why? Because it’s the going rate. It’s the standard rate. You know you think about the facts, and you’ve got three robberies in this case. You’ve got a robbery of a — (Emphasis added)
“MR. WHEELER [Appellant’s counsel]: Your Honor, we’re going to object to that, because very obviously this man is being tried for one robbery. And that’s what the jury is to determine what Ms punishment should be.
“THE COURT: I’ll overrule your objection.”

The prosecutor then argued:

“When you think of the facts, you’ve got three people that were robbed. . Three separate robberies. Now that would be ten years each robbery.” (Emphasis added)

In Klueppel v. State, 505 S.W.2d 572, 574 (Tex.Cr.App.1974), this Court unanimously held that “the State is not entitled to ask the jury to assess punishment for the collateral crimes which may have been admitted in evidence and add such punishment to the penalty assessed for the offense alleged in the indictment.”

The conviction in Klueppel was reversed because the prosecutor violated this rule. The case of Wilson v. State, 148 Tex.Cr.R. 61, 184 S.W.2d 838 (1945), was also reversed for this reason; it is even more in point than Klueppel. There the defendant was charged with aggravated assault by motor vehicle. This Court held that it was error for the State to argue to the jury that Wilson’s use of black market gasoline at the time of the collision could be considered in assessing his punishment.

We conclude that the holdings in Kluep-pel and Wilson require that this case be reversed. The prosecutor here went “beyond the bounds of asking the jury to consider the circumstances surrounding the offense in fixing punishment.” Klueppel v. State, supra, at 574. Instead, he specifically asked the jury to punish the appellant for two additional crimes not then being tried. This was serious and prejudicial error requiring reversal.

Accordingly, the judgment is reversed and the cause remanded.

      . The case of Dunlap v. State, 462 S.W.2d 591 (Tex.Cr.App.1971), is not in point. In Dunlap, we did not reach the issue so squarely decided in Klueppel — that a prosecutor may not urge the jury to punish the accused for offenses for which he is not being tried.


author: ONION, Presiding Judge.

text:
    Roy Allen YOUNG, Appellant, v. The STATE of Texas, Appellee.
    No. 50600.
    Court of Criminal Appeals of Texas.
    Dec. 3, 1975.

      Glen Williamson, Kermit (Court appointed), for appellant.
    Jim D. Yollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of voluntary manslaughter, a second degree felony, growing out of the primary count of murder in the indictment. Having found that the appellant had been previously convicted of a felony, the jury assessed punishment at fifty (50) years. See V.T.C.A. Penal Code Sec. 12.42(b). The offense was shown to have occurred on January 21, 1974.

At the outset we are confronted with appellant’s ground of error in which he complains that the trial court erred in failing to charge the jury on the appellant’s right to arm himself and seek out the deceased in order to obtain an amicable adjustment of their differences. The record reflects the court submitted a charge on self-defense but limited the appellant’s right of self-defense by giving instructions on provoking the difficulty. The appellant timely requested and was refused the following requested charge # 4.

“You are further instructed as a part of the law that the defendant, Roy Allen Young, had the right to go to the house of the deceased on the occasion of the homicide for the purpose of seeking an amicable adjustment of their difference; and, if he feared an attack upon him by deceased, he had the right to arm himself before going to deceased’s home, for the purpose of protecting himself from any such anticipated attack; and his right of self defense would not in any manner be cut off or abridged for thus acting.”

Appellant had testified in his own behalf during the trial and stated that the deceased had threatened him while the deceased was in the penitentiary and later in the county jail. It was stated by appellant that he had a conversation with his brother on the day of the shooting and that as a result of this conversation he was scared of the deceased. Appellant said that he feared for his life and went to talk to the deceased and “try to get it straight.” At the deceased’s home appellant said that the deceased came up to him with a broom and made threatening remarks. The deceased then started kneeing and kicking appellant in the privates and swinging his arms. Appellant stated that because of his fear of the deceased he backed up and shot the deceased twice.

The defense witness Larry Mills testified as to the deceased coming at appellant with a broom and kicking appellant in the privates and then appellant shooting at the deceased twice. Ronnie King had earlier testified for the State that appellant had been told to leave by the deceased as he wanted no trouble. The appellant, according to King, had then started to pull a gun and the deceased grabbed for the gun and appellant shot the deceased twice. King said that the deceased had a knife but had not tried to use it.

It is apparent from the testimony of the witness King that the evidence was sufficient to raise the issue of provoking the difficulty, and the court did not err in charging the jury thereon. Garcia v. State, 522 S.W.2d 203 (Tex.Cr.App.1975). The issue of self-defense having been so limited, we now address ourselves to the issue as to whether appellant was entitled to submission of his charge. It is clear from the testimony of appellant that he did raise the issue.

It has been the consistent holding of this court that unless the court’s charge places some limitation upon the accused’s right of self-defense, such as by charge on provoking the difficulty or otherwise, a charge on the right to carry arms is not necessary. Watson v. State, 513 S.W.2d 577 (Tex.Cr.App.1974); De La Cruz v. State, 490 S.W.2d 839 (Tex.Cr.App.1973); Cavazos v. State, 423 S.W.2d 582 (Tex.Cr.App.1968); Donaldson v. State, 372 S.W .2d 339 (Tex.Cr.App.1963); Pierson v. State, 160 Tex.Cr.R. 567, 272 S.W .2d 901 (1954); 4 Branch’s Ann. P.C., 2d ed., Sec. 2129, p. 453.

On the other hand, it is equally well settled that if the court’s instruction limits the accused’s right of self-defense by a charge on provoking the difficulty, then the jury should be advised in a proper instruction under the facts that the accused’s right of self-defense would not necessarily be abridged by the fact that he carried arms to the scene of the difficulty if such instruction is supported by the evidence. Porter v. State, 152 Tex.Cr.R. 540, 215 S.W.2d 889 (1948); Hunter v. State, 137 Tex.Cr.R. 289, 128 S.W.2d 1176 (1939); Harris v. State, 116 Tex.Cr.R. 426, 32 S.W.2d 459 (1930); Allen v. State, 102 Tex.Cr.R. 441, 278 S.W. 201 (1925); Frazier v. State, 100 Tex.Cr.R. 157, 272 S.W. 454 (1925); Clark v. State, 99 Tex.Cr.R. 80, 268 S.W. 465 (1925).

In 4 Branch’s Ann.P.C., 2d ed., Sec. 2126, p. 451, it is stated:

“The settled law now is that, unless the court has abridged the defendant’s right or claim of self-defense by giving a charge on ‘provoking the difficulty,’ it is not necessary in any case for the court to charge on the defendant’s right to arm himself or to charge on his right to seek a discussion with or an explanation from the deceased about any matter, provided a full charge on self-defense is given. But if the court has charged on provoking the difficulty, then it is imperative and necessary under the decisions that the court give a charge on the defendant’s right to arm himself and seek such explanation. Dunne v. State, 102 [Tex.] Crim. [R.] 435, 278 S.W. 201; Harris v. State, 116 [Tex.] Crim. [R.] 426, 32 S.W.2d 459; Porter v. State, 152 [Tex.] Crim. [R.] 540, 215 S.W.2d 889.”

In 29 Tex.Jur.2d, Homicide, Sec. 332, p. 647, it is also pointed out that:

“An instruction on the right to arm is, ordinarily, called for where the issue of provocation is left to the jury. In such a situation, the jurors should be advised that the defendant’s right of self-defense would not necessarily be abridged by the fact that he was armed.”

The State, in its brief filed by the Honorable Jim Voilers, agrees that the law, as discussed above, was well settled until the effective date of the 1974 Penal Code, but urges the new Code carried with it a change in the law of self-defense as set out in Sections 9.31 and 9.32 of such Code. It is urged that Section 9.31 was an attempt to codify the existing case law pertaining to self-defense and that provoking the difficulty limitation upon self-defense was written into Subsection (b)(4) of said Section 9.31 and that since the Legislature saw fit to include the law on provoking the difficulty but failed to include any provision on the right of an actor (accused) to arm himself and seek an explanation, such right no longer exists. Further, the State argues that under Section 9.32 of the Penal Code a defendant must now retreat before exercising his right of self-defense if a reasonable person would do so under the circumstances and that this is inconsistent with appellant’s requested charge in the instant case.

We cannot agree from a reading of sections of the Penal Code involved or from a history of the enactment itself that it was the intention of the Legislature to codify all existing case law on self-defense and that part not mentioned no longer would have application under the new Code. Further, the requirement to retreat is not applicable in the use of non-deadly force and only comes into play before the use of deadly force. See and cf. Section 9.32.

Hence, if an actor’s purpose was to seek an amicable adjustment of differences with the deceased, etc., he would not be confronted with need for the use of deadly force until the deceased made such use imperative. Thus, not until after the situation arose as to the necessity of using deadly force would appellant be faced with the decision as to whether to retreat. Further, at the time the test set forth would be whether a reasonable person in the actor’s situation would have retreated. The State’s reliance on the new Penal Code is misplaced.

We decline to overrule the rule the State seeks to abolish which has long been part of the case or decisional law of this State, see, i. e., Cartwright v. State, 14 Tex.App. 486, 502 (1883); Parker v. State, 18 Tex.App. 72, 86 (1885); Shannon v. State, 35 Tex.Cr.R. 2, 28 S.W. 687 (1894); Hall v. State, 44 Tex.Cr.R. 444, 60 S.W. 769 (1901), and see no conflict of such rule with the new Penal Code. Thus, the failure of the trial court to grant the requested charge as to appellant’s right to arm and seek an explanation, which charge was supported by the evidence, constitutes reversible error.

The judgment is reversed and the cause remanded.

      . See McClung’s Jury Charges for Texas Criminal Practice, Rev.Ed.1973, p. 91.

      . Said Sections 9.31 and 9.32 read as follows:
      “§ 9.31. Self-Defense
      “(a) Except as provided in Subsection (b) of this section, a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.
      “(b) The use of force against another is not justified:
      “(1) in response to verbal provocation alone;
      “(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c) of this section;
      “(3) if the actor consented to the exact force used or attempted by the other; or
      “(4) if the actor provoked the other’s use or attempted use of unlawful force, unless:
      “(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
      “(B) the other nevertheless continues or attempts to use unlawful force against the actor.
      “(c) The use of force to resist an arrest or search is justified:
      “(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
      “(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.
      “(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34 of this code.”
      “§ 9.32. Deadly Force in Defense of Person
      “A person is justified in using deadly force against another:
      “(1) if he would be justified in using force against the other under Section 9.31 of this code;
      “(2) if a reasonable person in the actor’s situation would not have retreated; and
      “(3) when and to the degree he reasonably believes the deadly force is immediately necessary:
      “(A) to protect himself against the other’s use or attempted use of unlawful deadly force; or
      “(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, rape, aggravated rape, robbery, or aggravated robbery.”


text:
    Joe BALLI, Appellant, v. The STATE of Texas, Appellee.
    No. 51057.
    Court of Criminal Appeals of Texas.
    Dec. 3, 1975.

      Van Stovall, Plainview, Court appointed, for appellant.
    Marvin F. Marshall, Dist. Atty., Plain-view, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal is from an order revoking probation. On April 23, 1974, the appellant was found guilty by a jury of assault with intent to commit robbery upon a robbery by assault indictment. The offense apparently was committed September 22, 1973. The punishment was assessed under the new Code by the jury at ten (10) years and $1,000. See Article 12.34 (Third Degree Felony Punishment), V.T.C.A. Penal Code. The jury recommended probation, and the appellant was placed on probation for ten (10) years subject to certain probationary conditions imposed by the court, which included the requirement that he “(a) commit no offense against the laws of this State or any other State or the United States, and (b) avoid injurious or vicious habits; no use of alcohol, narcotics or dangerous drugs.”

On January 2, 1975, the State filed a motion to revoke probation alleging that the appellant had violated the above described conditions by “a. On December 5, 1974 Joe Balli was arrested by the City Police in Plainview, Hale County, Texas and booked for Public Intoxication, b. Probationer did not avoid the use of alcohol and consequently was arrested for Public Intoxication.”

On March 19, 1975, the court conducted a hearing on the revocation motion. The evidence established that appellant was the person placed on probation and his probationary conditions. Thomas Stephens, Municipal Court Judge, testified that the appellant had entered a plea of guilty before him to a charge of “drunkeness,” on December 6, 1974, and was assessed a fine of $52.50, which the appellant laid out in jail. Neither his testimony nor the docket sheet of the Municipal Court, which was introduced, reflected the date on which the offense was alleged to have occurred. Steve Holmes, city of Plainview police officer for 23 months, testified that after dark on December 5, 1974, he received information that someone was walking around some businesses on Eighth Street. In checking the area, he observed the appellant, with whom he was acquainted, walking in the middle of the eight hundred block of Denver Street. Holmes related he stopped and talked with the appellant, that his breath smelled strong of alcoholic beverage, that his speech was slurred, that he swayed noticeably, and that when he tried to walk he almost fell. Holmes expressed the opinion, based on his experience, that the appellant was intoxicated. He arrested the appellant. On cross-examination he testified that at the time he arrested the appellant the street was vacant of cars “at that moment.”

At the conclusion of the hearing the trial court revoked probation, stating the evidence was insufficient to show a penal offense, but that evidence was sufficient to show the appellant did use alcohol in violation of probationary conditions. However, the written order revoking probation entered on the same date and appearing in the appellate record without objection made the findings that the appellant “violated the terms of his probation in that he committed the offense of public intoxication against the laws of the State of Texas; failed to avoid the use of intoxicating beverages (injurious habits).” The order was personally signed by the trial judge.

Although the appellant and the State both briefed this case as though the court’s oral statements at the conclusion of the hearing are controlling, we conclude the written findings are, and that the evidence is sufficient to show the commission of a penal offense, to-wit: public intoxication, which was a violation of the probation conditions.

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

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

The evidence reflects that appellant in a state of intoxication was walking in the middle of a public street in the city of Plainview after dark, although at the moment the street was vacant. This evidence was sufficient to show a violation of said Section 42.08, supra.

Appellant urges that the officer’s opinion that appellant was intoxicated should not have been considered since it was formed after the officer had stopped and detained appellant without probable cause. First, we observe that all of Officer Holmes’ testimony was elicited without objection. Any error was thus waived. See Williams v. State, 372 S.W.2d 326 (Tex.Cr.App.1963).

Further, we conclude that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), cited by appellant, are contrary to his contention. In Terry the Supreme Court stated:

“. . .A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.” 392 U.S. at 22, 88 S.Ct. at 1880.

The mere brief stopping of an individual on a street for questioning to “determine his identity or to maintain the status quo momentarily while obtaining more information” is expressly countenanced by Adams, 407 U.S. at 146, 92 S.Ct. at 1923.

The information obtained after the officer approached the appellant walking in the middle of the street—the odor of alcohol on his breath, the slurred speech, the swaying and difficulty in walking, combined to create probable cause to arrest for public intoxication. Article 14.01, Vernon’s Ann.C. C.P., permits the warrantless arrest of an individual committing an offense in an officer’s presence. See Chambler v. State, 416 S.W.2d 826 (Tex.Cr.App.1967); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974). Appellant’s contention is without merit.

There being a valid ground to justify revocation, we need not consider appellant’s other contention that the evidence showed only a single use of alcohol and did not reflect an injurious or vicious habit in violation of probation. See Cox v. State, 445 S.W.2d 200 (Tex.Cr.App.1969); Jones v. State, 478 S.W.2d 937 (Tex.Cr.App.1972). Likewise, we need not consider whether the imposition of the probationary condition “(b) avoid injurious or vicious habits; no use of alcohol, narcotics or dangerous drugs” was a proper fleshing out of statutory conditions to which the court was limited when probation is recommended by the jury. See Article 42.12, Sec. 3a, Vernon’s Ann.C.C.P. See and cf. Flores v. State, 513 S.W.2d 66 (Tex.Cr.App.1974).

There appears another reason why the revocation of probation was proper. Under the provisions of Article 42.12, supra, the jury may recommend probation where the punishment assessed is ten years or less. The punishment here assessed was ten years plus $1,000 fine. Since the punishment assessed was in excess of ten years, probation should not have been granted, despite the jury’s recommendation. Since appellant was not eligible for probation in light of the punishment assessed, the court did not err in revoking probation. See Popham v. State, 154 Tex.Cr.R. 529, 228 S.W.2d 857 (1950); Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589 (1954); Cromeans v. State, 160 Tex.Cr.R. 135, 268 S.W.2d 133 (1954); House v. State, 166 Tex.Cr.R. 41, 310 S.W.2d 339 (1958); Hartley v. State, 169 Tex.Cr.R. 341, 334 S.W.2d 287 (1960).

The judgment is affirmed.

      . This type of evidence frequently causes evidentiary problems where the State relies alone upon a conviction to show the commission of a penal offense. See Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975); Mason v. State, 438 S.W.2d 556 (Tex.Cr.App.1969). See also Taylor v. State, 172 Tex.Cr.R. 45, 353 S.W.2d 422 (1962); Jansson v. State, 473 S.W.2d 40 (Tex.Cr.App.1971).

      . Appellant cited and relied upon Kubat v. State, 503 S.W.2d 258 (Tex.Cr.App.1974). See also Campbell v. State, 456 S.W.2d 918, 922 (Tex.Cr.App.1970); Marshall v. State, 466 S.W.2d 582 (Tex.Cr.App.1971).