author: RUSSELL, Judge. DAUGHTREY, Judge, GALBREATH, Judge,

text:
    Bobby R. ANDERSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 10, 1977.
    Certiorari Denied by Supreme Court June 13, 1977.

      Robert H. Green and David T. Black, Maryville, for appellant.
    Brooks McLemore, Atty. Gen., Nashville, H. Kenneth Deatherage, Dist. Atty. Gen., Kingston, John C. Crawford, III, Asst. Dist. Atty. Gen., Maryville, Edward P. Bailey, Jr., Asst. Dist. Atty. Gen., Lenoir City, for appellee.
   OPINION

RUSSELL, Judge.

The defendant-appellant, Bobby R. Anderson, appeals his conviction under both counts of a two-count indictment charging him with (1) forgery and (2) uttering a forged instrument. The jury set punishment at three years in each case, recommending that they be ordered to be served concurrently; but the trial judge, after a hearing in which Anderson’s many past crimes were made to appear, required consecutive service of the two three year sentences.

The predominant question raised upon this appeal is whether or not both of these convictions can stand. The State’s proof was that Anderson showed up in a market in possession of a valid check in the amount of $157.21 made payable to one Willie Boring. The cheek was issued to Boring by Yeach-May-Wilson, Inc. in payment for lumber, and was mailed to Boring, delivered to his mailbox, but never received by him. Anderson picked out a few groceries from the food market and carried them to the cashier. There, in her presence, he endorsed the name of Willie Boring to the check, and it was accepted by the cashier and full payment made upon it. No identification was required of Anderson, and his name was not endorsed upon the check.

To say that the courts of this State have had difficulty in formulating a clear and workable rule for determining whether two closely related convictions can both stand is to simply relate history. However, both our Supreme Court and this Court have recently readdressed the problem, and a formula has emerged. The leading case is State v. Black, 524 S.W.2d 913 (Tenn.1975), which characterized the problem as being one of identity of offenses. The Court stated that each case required close and careful analysis of the offenses involved, the statutory definitions of the crimes, the legislative intent and the particular facts and circumstances. In another opinion released on the same day, State v. Scates, 524 S.W.2d 929 (Tenn.1975), the Court expressly adhered to the principle that the test is not whether the offenses involve the “same transaction”, but rather whether the same evidence was required to prove both of them. In the case of State v. Briggs, 533 S.W.2d 290 (Tenn.1976), our Supreme Court overruled a prior holding and ruled that one who committed murder while perpetrating a robbery could be convicted of both armed robbery and first degree murder. This Court, in the case of Greer v. State, 539 S.W.2d 855 (Tenn.Cr.App.1976), applied Black to the case of dual convictions for burglary (breaking and entering with the intent to commit rape) and rape, and held that both convictions could stand, expressly overruling the earlier case of Walton v. State, 1 Tenn.Cr.App. 668, 448 S.W.2d 690 (1969).

It is beyond dispute that forgery and uttering a forged instrument are separate and distinct offenses, and that neither is included within the other. Buren v. State, 84 Tenn. 61 (1885); Baldwin v. State, 213 Tenn. 49, 372 S.W.2d 188 (1963). Forgery is the fraudulent making or alteration of any writing to the prejudice of another’s rights. T.C.A. § 39-1701. The common law offense of uttering is carried in T.C.A. § 39-1704 and described as being committed when any person fraudulently passes or transfers, or offers to pass or transfer, any forged paper, knowing it to be forged, with intent to defraud another.

In the case at bar, the indictment avers that the forgery was committed with the intent to defraud Willie Boring, the payee; while it is said that the transfer or passing of the check was with the intent to defraud Chester Sterling d/b/a Sterling’s IGA.

To point up the separate character of these two offenses, our Supreme Court has held that where one is charged only with forgery that it is reversible error to prove the selling or transfer of the instrument. Luttrell v. State, 85 Tenn. 232, 1 S.W. 886 (1886).

The exact question presented upon this appeal has not been directly addressed in a reported decision of our Supreme Court or of this Court. The unreported case of Larry Michael Otis v. State, relied upon by the Appellant, was decided by a panel of this Court and filed at Jackson on March 10, 1976. However, in denying petitions for certiorari filed by both parties, our Supreme Court expressly concurred in result only. (In Otis, while this Court held that only one conviction could stand, the sentences had been made concurrent, so that no change of effective sentence resulted.)

Because of the diversity of approaches by the many jurisdictions to this problem of multiple related convictions, and the differences in offense definitions made there, it is of little help to look outside our State for guidance. We find this language in 2 R. Anderson, Wharton’s Criminal Law and Procedure, page 437, § 648 (1957):

Uttering a forged instrument consists in offering to another the forged instrument with a knowledge of the falsity of the writing and with intent to defraud. Uttering is an offense at common law. In many jurisdictions uttering is an offense distinct from that of forgery, and a defendant may be guilty of uttering a forged instrument although he is not the forger. Sometimes, however, the two are held to constitute a single offense when committed by the same person in the course of the same transaction, and it has been declared that they are generally so considered, the question under consideration being whether separate sentences can be imposed on a plea of guilty to two counts * * *.

The same text writer, on pages 443 and 444, § 651, says:

In the absence of a statute to the contrary, forgery of an instrument and its uttering are distinct offenses within the rule of former jeopardy. The rule, therefore, that a person may be prosecuted only once for the same transaction, or for offenses growing out of the same transaction, does not obtain in cases of forgery and the passing of forged instruments, because they are not one and the same transaction, and an acquittal of a charge of forgery is no bar to a prosecution for the uttering and passing of the instrument forged. The rule, of course, is subject to statutory provisions assimilating the two crimes.

What makes the instant case a hard one is the fact that both crimes were committed at the same place at nearly the same time, and to achieve one end result. However, check forgery and uttering, though clearly separate offenses, always intend the ultimate fraudulent passing to be the end goal, although the crime of forgery is completed before the transfer is even attempted. Unity of intent does not merge the offenses. Greer v. State, supra, dealt with a unified intent, i.e. a breaking and entering with the intent to rape, and with the intended rape. Our Supreme Court has expressly rejected the same transaction test. State v. Black, supra; State v. Seates, supra; State v. Briggs, supra; as had this Court in Greer v. State, supra.

Applying the tests of Black, we identify these as separate offenses, requiring separate evidence; and can discern no legislative intent that they be merged. Following Black’s direction to look also to the particular facts and circumstances, we see this as an Unusual example of separate perpetrations, because of the unity of place and near unity of time; but this does not change the fact that two crimes were in fact and law committed.

This leads into the next question, which is whether or not this is a proper case for consecutive sentences. Applying the guidelines of Gray v. State, 538 S.W.2d 391 (Tenn.1976), to the action of the trial judge, we find no abuse of discretion in his holding that Anderson’s past record called for consecutive sentences. In Gray’s terms, he was both a persistent and a multiple offender. At the hearing upon the matter, the State presented that Anderson had three prior convictions in the same Court for forgery and uttering, that many other like offenses were not even prosecuted, that he had a prior burglary conviction in the same Court, that he was at that time a fugitive from North Carolina for jumping bail on a burglary conviction, and that he was also wanted in North Carolina on a charge of larceny and receiving and concealing stolen property-

We affirm the setting of consecutive sentences. This is especially fitting since the jury, not having knowledge of this criminal record, set only minimum sentences.

The assignments of error attacking the wording of the counts in the indictment are without merit. The offenses were well stated, if a bit fully.

Finally, complaint is made of one portion of the judge’s charge, wherein he instructed the jury:

I further charge you that where a defendant makes no explanation of his acquisition and possession of a forged instrument made payable to him, title to which he claims, or claims to be the payee, although he is not, and which he cashed or offered to cash, raises the presumption of his guilt and you would be justified to convict him.

The thrust of the complaint against this charge is that it told the jury “that possession of a forged instrument raises a presumption of guilt unless the possessor explains his possession”, and that this places a burden upon the defendant to testify in violation of the Fifth Amendment right to remain silent.

In the context of this case, wherein the only thing that is factually involved that is covered by the charge is the implicit claim of Anderson to be the payee when he was not, and the judge instructed the jury that it would be justified to convict him, not that it must, we hold that error in this charge, if any, was at most harmless. It is important to note that such presumption was not said to mandate a conviction. Bush v. State, 541 S.W.2d 391 (Tenn.1976), deals with an analogous presumption, and makes clear the importance of this point. It is also important to observe that under the facts of this case, wherein Anderson forged the endorsement and then passed the check all within the view of the cashier, that it was really not necessary to tell the jury that this raised a presumption of his guilt of passing a forged check, since it so clearly made out all of the elements of the crime. Obviously, Anderson transferred a forged paper, knowing it to be forged, with intent to defraud. This, even with the charge, really raised no more of a presumption of guilt than would occur in any case wherein all of the elements of a crime were prima facie established. A rebuttable presumption of guilt which is said to arise upon the proof of certain facts is really no more than the statement of a pre-verdict judicial appraisal that acceptable proof of those facts, where unrebutted, sufficiently makes out the State’s case as a matter of law, if and when accepted by the jury as convincing beyond a reasonable doubt of the guilt of the accused.

We have carefully examined all of the assignments of error; and, having found no reversible error, affirm the convictions and consecutive sentences.

GALBREATH, J., dissenting.

DAUGHTREY, J., separately concurring.

DAUGHTREY, Judge,

concurring.

I concur fully in the opinion filed in this case by my colleague, Judge Russell. In view of the separate dissenting opinion filed by Judge Galbreath, I conclude that two further comments are appropriate.

In the first place, the hypothetical analogies posed by Judge Galbreath must be distinguished from the case at hand. In each of the given examples, the “forged” document is a creation of the forger. But in this case the instrument forged was not a sham; it was an actual check, which, it is fair to assume from the record, was stolen from the mail or from the constructive possession of the actual payee. Under such circumstances the forgery of the payees name is at least prima facie evidence of an intent to defraud on the part of the forger.

Furthermore, the case of Patmore v. State, 152 Tenn. 281, 277 S.W. 892 (1925), relied on heavily by Judge Galbreath in his dissent, has been thoroughly eroded, if not overruled sub silentio, by subsequent decisions of the Tennessee Supreme Court. In State v. Black, 524 S.W.2d 913 (Tenn.1975), the court traced the development of a line of cases supporting the “same intent-same transaction” rule exhibited in Patmore. This line of cases had culminated in Acres v. State, 484 S.W.2d 534 (Tenn.1972). After examining the Patmore-Acres rationale, and testing it against the rule developed in a parallel line of cases, a line of cases which culminated in Duchac v. State, 505 S.W.2d 237 (Tenn.1973), the court in Black reaffirmed Duchac and confined Acres to its facts (felony murder). 524 S.W.2d at 919. Seven months later, in State v. Briggs, 533 S.W.2d 290 (Tenn.1976), the court reversed Acres outright.

I conclude that if Patmore was ever good law after Duchac, the case is no longer controlling. It is noteworthy also that the separate convictions in Duchac were for possession of burglary tools and burglary, a situation analytically similar to the forgery-uttering charges now before us.

As previously stated, I concur in Judge Russell’s opinion.

GALBREATH, Judge,

dissenting.

Recognizing that the majority has sound, albeit conflicting, support for the holding that the acts of forgery and uttering, or passing, the forged instrument may be two distinct criminal acts subject to dual punishment, I cannot intellectually accept the result reached.

If the defendant had simply signed the check and nothing more, no prosecution at all would have resulted since no loss to anyone would have occurred. Forgery is the fraudulent making or altering of any writing to the prejudice of another’s right. T.C.A. § 39-1701.

One might make out a deed to his neighbor’s home and effect a facsimile of the owner’s signature to it. He might draft a note for one million dollars and sign Nelson Rockefeller as the maker. He might make out a bill of sale for the Brooklyn Bridge that purports to bear the signature of the appropriate official of the City and State of New York ostensibly conveying title to himself. He might do all of these acts but until he demonstrates that he did so with the intent and for the purpose of defrauding another person, no crime is committed.

It was the cashing of the check simultaneous with effecting the false signature that made the transaction unlawful. If the defendant had put the check in his pocket and went about his business, he would not have been in violation of law even though the clerk of the IGA store may have recognized that he had written someone else’s name as a signature. No prejudice to anyone would have occurred so long as the check remained in the defendant’s pocket, (other than in the obvious theft involved).

Even if technically the making and the passing of the check constituted separate criminal acts so far as I can determine no decision of our Supreme Court has even overruled the clear holding of Patmore v. State, 152 Tenn. 281, 277 S.W. 892 (1925):

“ ‘While, in view of these authorities, we feel constrained to hold that in a case like this the jury may find the prisoner guilty upon each count, and ascertain the punishment separately, we are of opinion that the usual and better practice in such cases is to find a general verdict for the two cognate offenses charged.’
“Even if it be conceded that two convictions and two punishments may be had in any case upon separate counts, the practice is not approved, and, certainly it must be clear that the offenses are wholly separate and distinct. Our own cases appear to prohibit the practice where the offenses grow out of one transaction and involve but one criminal intent.”

In view of the facts in this case and what appears to me to be controlling law and logic, I must respectfully dissent from the majority opinion.


source: Caselaw Access Project

author: GALBREATH, Judge.

license: Public Domain

text:
    Billy HULL, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    April 11, 1977.
    Certiorari Denied by Supreme Court June 6, 1977.

      Jerry Summers, Chattanooga, for appellant.
    Brooks McLemore, Atty. Gen., David L. Raybin, Asst. Dist. Atty. Gen., Nashville, Gary Gerbitz, Dist. Atty. Gen., Stanley J. Lanzo and Lawrence Young, Asst. Dist. At-tys. Gen., Chattanooga, for appellee.
   OPINION

GALBREATH, Judge.

Billy Hull appeals his conviction by the Criminal Court of Hamilton County as an accessory before the fact of murder in the first degree of Roland Hargis, the paramour of Hull’s wife. Hargis was shot and killed at approximately 12:55 A.M. on May 1, 1973, in front of the Tradewinds Night Club in Chattanooga as he and his girlfriend were leaving by Larry Parker, who, according to the State’s proof, had been hired by Hull along with one Wayne Carter to carry out the assassination. Hull was sentenced to serve twenty years and one day in the State Penitentiary.

It is unnecessary to exhaustively detail the record to overrule the assignments of error challenging the sufficiency of the evidence. There was ample proof adduced at trial from which the jury could conclude that Hull hired an assassin to kill Hargis. The testimony of the “trigger” man implicating the appellant was overwhelmingly corroborated by other testimony, such as that the appellant possessed the weapon actually used in the slaying and that he made numerous threats against the deceased. The evidence introduced in this cause does not preponderate against the verdict of the jury. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). This assignment is overruled.

Elaborate evidence was introduced proving that the defendant also attempted, this time unsuccessfully, to have another lover of his wife’s, one Jerry Mitchell, killed. This is alleged as error.

It is well established that evidence of other criminal acts by an accused is not admissible, unless relevant for some other purpose, to show the accused has the disposition to commit criminal acts. This rule and its narrow exceptions are enunciated in Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963):

We have many eases in which we have discussed the question of the admissibility of evidence of other crimes than that for which the accused is on trial. We need not undertake to review them. Some of the more recent ones are Sims v. State, 208 Tenn. 615, 348 S.W.2d 293; Jones v. State, 200 Tenn. 553, 292 S.W.2d 767; Harris v. State, 189 Tenn. 635, 227 S.W.2d 8; Woodruff v. State, 164 Tenn. 530, 51 S.W.2d 843; Mays v. State, 145 Tenn. 118, 238 S.W. 1096.
The general principle to be collected from these, and other authorities, is that evidence of another crime or crimes than that charged in the indictment and for which defendant is on trial, is not admissible unless such evidence is relevant to prove his guilt of that crime. The test of relevancy is furnished not by law, but by logic and general experience (Thayer, Preliminary Treatise on Evidence (1898), 264-266). Morgan, Basic Problems of Evidence (1961), 183-194; Trautman, Logical or Legal Relevancy — A Conflict in Theory, 5 Vand.L.Rev. 385, 403-410. It is generally agreed that evidence of other crimes by a defendant is not admissible merely to prove his disposition to commit such a crime as that on trial; but such evidence is admissible when it is relevant to prove some other material issue on trial; for instance, when it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan for commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) the identity of defendant on trial. Morgan, supra; Harris v. State, supra; Woodruff v. State, supra.

The motives for both crimes were identical, i. e., revenge for the seduction of the defendant’s wife. This establishes a connection between the efforts to bring about the deaths of the paramours.

Ordinarily, a threat by accused to kill or injure a person other than deceased is not admissible to show malice toward the deceased. See Long v. State, 202 Tenn. 373, 304 S.W.2d 492 (1957). However, as noted in 40 C.J.S. Homicide, § 206c: “Threats to do violence against a class of persons, one of whom became the victim, are admissible to show malice and state of mind. . (t)hus threats against peace officer or officers, or members of a particular family, are admissible where deceased was a member of the class referred to.”

Hargis and Mitchell belonged to that, hopefully, small class of men upon whom the defendant’s wife had bestowed her sexual favors. Thus, the common bond between the two men renders the evidence of threats against both of them admissible as tending to evince malice, premeditation, and that state of mind of the accused. The assassin testified that he was asked to kill both men, so in effect both intended deaths were part of the overall plan.

We overrule an assignment of error complaining that the jury was instructed to the effect that all witnesses are presumed to be truthful. This instruction is proper. We also overrule the contention that it was error to allow the assistant district attorney general to voir dire the jury. It has long been the practice for attorneys to participate in the examination into the competency of prospective jurors under the direction of the trial judge. See Ray v. State, 108 Tenn. 282, 67 S.W. 553 (1902).

The hired assassin, Larry Parker, testified that although he shot and killed the victim, he did not intend to do so. His testimony as to how he killed the victim from ambush was:

A: I just set there right then. I was undecided on what to do, since Mr. Carter wasn’t there, or Wayne Carter wasn’t there. And the female went to the driver’s side, Mr. Hargis went to the passenger’s side. And I didn’t want to — I didn’t want to go through with it anyway, so I figured this was the best time to just shoot close to him.
Q: Now, why would you just shoot close to him?
A: Mr. Hull told me that he worked as a merchant marine in New Orleans. I figured that would send him back to New Orleans.
Q: You figured what would send him back to New Orleans?
A: If I just missed him, come close to him and missed him — figured he’d go back.
Q: Why do you think he’d go back to New Orleans?
A: I would if somebody shot at me and missed me.
Q: All right. Now, you say — how much of his body could you see over the vehicle?
A: Prom here up.
Q: All right. Did you aim and shoot?
A: Yes, sir.
Q: Where did you aim at?
A: I just aimed for right here in the face.
Q: Why did you aim there?
A: So it would either go to the right— nine times out of ten the gun would have pulled to the right probably, four to six inches.
Q: All right, did you see the man fall after you shot?
A: Yes, sir.
Q: You did shoot?
A: Yes, sir.
Q: Did you shoot more than once?
A: No, sir.
Q: What happened then?
A: I heard the girl screaming, and I got up and I don’t remember whether I walked or run up the hill.

If this testimony by the principal witness for the State was true, and/or if the jury had believed it, then the homicide could have been viewed by them as involuntary manslaughter, a homicide committed under such circumstances that it appears that neither death nor bodily harm was intended by the party doing the killing, and that death was accidently caused by some unlawful act on his part. Harper v. State, 206 Tenn. 509, 334 S.W.2d 933, (1960). The jury simply did not believe the incredible testimony of Parker insofar as it would tend to prove that he did not intend to kill Roland Hargis.

Although there was a request for him to do so, the trial judge did not instruct the jury on the elements of involuntary manslaughter. This action may well have been because of the recognition that one may not be an accessory before the fact to an accidental slaying for much the same reason that one may not be guilty of an attempt to commit involuntary manslaughter. See Stevens v. State, 91 Tenn. 726, 20 S.W. 423 (1892). There is just no such crime as would require proof that one .intended a result that accidentally occurred.

Parker’s testimony might well have justified the trial judge, upon special request, to instruct the jury on death from accident or misadventure. In the absence of a special request, the trial judge will not be held in error for failure to give such specific instructions. See Crawford v. State, 197 Tenn. 411, 273 S.W.2d 689 (1954).

In affirming we are constrained to hold that it was error, albeit not of a reversible nature in the overall context of this case, for the Assistant District Attorney General to ascribe to counsel for the State the prerogative “to wear the white hats” as being indicative that those who might side with the defendant are, by contrast, somewhat less than the “good guys” usually associated with that phrase. Just as the United States Supreme Court admonished in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970): “(t)he adversary system [of justice] is hardly an end in itself; it is not yet a poker game . . ”, neither is it a T.V. drama nor a cowboy movie. Instead it is, or at least should be, an impartial search for truth.

We do not find that the obvious appeal for the jury to view the State’s side of the controversy with more sympathy than they might accord the defendant’s affected the verdict of the jury and we hold the error was harmless. T.C.A. § 27-116.

We have carefully considered all the assignments of error and affirm the judgment below.

RUSSELL and DAUGHTREY, JJ., concur.


author: WALKER, Presiding Judge.

text:
    Billy Carmack BROWN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    May 20, 1977.

      Dicken E. Kidwell, Murfreesboro, for appellant.
    Brooks McLemore, Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Baxter Key, Jr., Dist. Atty. Gen., Carthage, R. David Allen, Asst. Dist. Atty. Gen., William D. Baird, Sp. Prosecutor, Lebanon, for ap-pellee.
   OPINION

WALKER, Presiding Judge.

Convicted of first degree murder and sentenced to death by electrocution, the appellant, Billy Carmack Brown, appeals in error.

The state’s evidence, including that of his accomplice, Jackie Baker, showed that Brown and Baker had been drinking heavily on August 23,1975; in a Lebanon restaurant they were loud and abusive of a waitress. They annoyed the deceased, Royal Tidwell, by hiding his hat, but Tidwell agreed to take them home in his car.

After leaving the restaurant with Tidwell driving, Brown put his arm around Tid-well’s neck several times in a rowdy manner, almost wrecking the car. When they stopped, he pulled Tidwell into the back seat and they began to fight. Either Brown or Baker cursed Tidwell and told him to get out. Tidwell got out of his car and ran up the street. By Baker’s testimony, Brown pursued Tidwell in the car, ran him down in a ditch and killed him.

After running over Tidwell, Brown and Baker fled. Baker was arrested for drunkenness that night; Brown was not found until the next day.

The evidence, both by the state and the defendant, is that a few hours before this incident Chief Deputy Sheriff A1 Cook arrested Brown and Baker at the fairgrounds for public drunkenness. He was thoroughly familiar with Brown when he was drunk. By his testimony Brown was highly intoxicated. He turned them over to a new officer to be taken to the city jail. For some reason, this officer released them at a cab stand. There they bought another half-pint of whiskey, according to Baker, and continued their drinking.

Brown did not testify.

In challenging his conviction, Brown urges that the trial judge erred in his instructions on intoxication as a defense to first degree murder. He charged:

“I charge you, Ladies and Gentlemen of the Jury, that if a person voluntarily consumes alcohol to such an extent that he beeomes intoxicated, and as a result of said intoxication, commits a crime, that said voluntary intoxication is no excuse for the crime alleged to have been committed.”

This instruction is erroneous because it omitted the rule that intoxication can negate a finding of premeditation which is essential to a conviction for first degree murder. State v. Bullington, Tenn., 532 S.W.2d 556 (1976). The failure to apply intoxication to the issue of premeditation and the mental state of the appellant could easily mislead the jury. This is fundamental error.

The positive descriptions of Brown as being intoxicated established the necessity for an instruction on intoxication applicable to first degree murder without a special request. Brown was clearly prejudiced here which requires reversal.

Brown contends the court erred by denying his motion for a continuance. Counsel was appointed on December 9,1975, and the state moved for trial that term. By his affidavit counsel objected to the setting, pointing out to the court that he already had set for the December term two serious felony cases, for felonious assault, bank robbery and kidnapping, as well as a number of trials in general sessions court. Over his objection the case was set for December 18. On one of those cases previously set, counsel worked until midnight December 15 in its preparation, tried it December 16 with the jury receiving it at about 11:30 a.m., December 17. At that time, the court, announced that jury selection in the Brown case would begin at 12:30 p.m. that day. Counsel again moved and was denied a continuance.

According to the affidavit, the jury selection was completed at 5:15 p.m., December 17, and the proof began at 9:00 a.m., December 18. Counsel had no opportunity to interview any witness other than the appellant or to visit the site of the incident or to make any investigation of the facts. Although he had represented the appellant by appointment at the preliminary hearing, he had felt he had no authority or duty to conduct an investigation without further appointment.

In overruling the new trial motion, the trial judge commended counsel for his work and said he did not think counsel could have done better with much more time. It is true that counsel conducted a spirited and skillful defense, under the circumstances, in opposition to the well-prepared case presented by the district attorney general aided by the special prosecutor.

TCA 40 — 2017 provides:

“ . . . Upon the appointment of an attorney hereunder, no further proceeding shall be had until the attorney so appointed has had sufficient opportunity to prepare the case.”

“Sufficient” opportunity means a reasonable time under the facts and circumstances of the case. Each case must stand on its own facts in the determination of what is a reasonable time to prepare a defense. Some cases require less pretrial investigation and preparation than others. For the trial of a capital charge as here, additional time for preparation should have been granted to appointed counsel who had been engaged in the trial of other cases and had actually been in the trial of another case an hour before jury selection. See Johnson v. State, 213 Tenn. 55, 372 S.W.2d 192 (1963). Perhaps more time would have 'availed the appellant nothing but his counsel was entitled to sufficient time to formulate, prepare and present his case. The court erred in denying a resetting. This assignment is sustained.

After the conviction appointed counsel was relieved and another attorney was retained who represented Brown at the new trial motion and represents him on this appeal.

In view of our reversal, the Governor’s commutation of the death penalty to life imprisonment becomes moot.

We have examined the other assignments and find them to be without error. On retrial, if the evidence is substantially the same, the court should not permit into evidence the character of the accused and the deceased.

The photographs were properly admitted. These pictures, showing Tidwell’s body, established that death was the result of great force. Since the manner of killing is important in establishing premeditation, the photographs had probative value and were properly admitted. Parks v. State, Tenn.Cr.App., 543 S.W.2d 855 (1976).

Reversed and remanded for a new trial.

DWYER and TATUM, JJ., concur.


author: DANIEL, Justice.

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Petitioner, v. Mason Don PAGE, Respondent.
    No. B-6449.
    Supreme Court of Texas.
    May 25, 1977.

      Gardere, Porter & DeHay, Gordon H. Rowe, Jr., Dallas, for petitioner.
    Carter, Jones, McGee, Rudberg, Moss & Mayes, Albert E. Andres, Dallas, for respondent.
   DANIEL, Justice.

This is a workmen’s compensation case filed by Mason Don Page, an employee of the Preston State Bank in Dallas, against Texas Employers Insurance Association, the workmen’s compensation insurance carrier for the bank, seeking compensation benefits for an injury alleged to have been sustained or aggravated while on the job. The principal question to be decided is whether Page was injured in the course of his employment within the meaning of Section 1 of Article 8309.

Trial was before a jury. At the conclusion of Page’s evidence, the trial court granted an instructed verdict for Texas Employers. Upon appeal by Page, the Court of Civil Appeals reversed and remanded. 544 S.W.2d 452. We affirm the judgment of the Court of Civil Appeals.

Prior to the injury in question, Page had been employed as a bank security guard for sixteen years. Each morning his principal duty was to walk from the main bank building, across the bank’s parking lot and driveway, open the motorbank teller windows and return to the main bank premises. On December 2, 1974, Page’s right knee “buckled” as he walked across the bank parking lot after opening the teller windows. He fell, striking his right knee, wrist and left arm on the parking lot surface. The surface was relatively flat and paved. The evidence shows that Page’s fall was related solely to his right knee “buckling.” There is evidence of skin abrasions and swelling in the right knee allegedly sustained as a result of the fall. After attempts to treat the knee failed, doctors performed a total knee implant operation. Page has not worked for the bank since December 2, 1974.

Some three and one-half years prior to this incident, Page, who was on vacation from his regular bank job, sustained a com-pensable injury to his right knee while working as a temporary security guard at the Dr. Pepper Bottling Company. That particular injury forced Page to miss almost four and one-half months of work. Upon returning to work at the bank, Page resumed his normal duties with little difficulty. In November 1974, Page took two weeks sick leave to rest his knee when it became swollen. On December 2, 1974, he returned to work at the bank and sustained the injury complained of here.

Section 1 of Article 8309 provides that the term “injury sustained in the course of employment” shall include with certain exceptions not relevant here, “all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.” Thus, for a claimant to recover under our statute he must meet two requirements. First, the injury must have occurred while the claimant was engaged in or about the furtherance of his employer’s affairs or business. Second, the claimant must show that the injury was of a kind and character that had to do with and originated in the employer’s work, trade, business or profession. Shelton v. Standard Insurance Co., 389 S.W.2d 290 (Tex.1965); Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350 (Tex.1963); Smith v. Texas Employers’ Ins. Ass’n., 129 Tex. 573, 105 S.W.2d 192 (1937).

The record conclusively shows that Page satisfied the first requirement. At the time of his injury, Page was performing his duties as a bank security guard in furtherance of his employer’s business. Texas Employers argues, however, that the evidence shows that Page failed to meet the second requirement: that the injury was of a kind and character that had to do with and originated in the employer’s business. Texas Employers contends that Page’s injury resulted solely from the pre-existing infirmity of his right knee joint or that, in any event, idiopathic falls to level ground are not compensable under the statute.

As for prior injury, the mere fact that a claimant has a pre-existing injury or disease which enhances or aggravates the injury complained of, does not in itself defeat his right to recover under the statute. Sowell v. Travelers Ins. Co., 374 S.W.2d 412 (Tex.1963); Texas State Highway Dept. v. Fillmon, 150 Tex. 460, 242 S.W.2d 172 (1951); Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356 (1937); Commercial Standard Ins. Co. v. Noack, 62 S.W.2d 72 (Tex.Com.App., holding approved). To defeat Page’s claims for compensation because of the pre-existing injury, Texas Employers must show that the prior injury is the sole cause of Page’s present incapacity. The evidence does not lend itself to that finding. Moreover, it was incumbent upon Texas Employers to plead sole cause and having failed to do so, Page was under no burden to negate that issue. See Argonaut Southwest Insurance Company v. Morris, 420 S.W.2d 760 (Tex.Civ.App.1967, writ ref’d n. r. e.); Texas Employers Insurance Association v. Beard, 390 S.W.2d 59 (Tex.Civ.App.1965, writ ref’d n. r. e.).

Texas Employers also contends that idiopathic falls to level ground are not com-pensable, and that a majority of jurisdictions refuse to allow claimants recovery for the very kind of injury that Page suffered here, citing 1 Larson’s Workmen’s Compensation Law § 12.14 (1972). Larson lists Texas as representative of a “significant minority” of jurisdictions which allow compensation for idiopathic level-floor falls.

In Garcia v. Texas Indemnity Co., 146 Tex. 413, 209 S.W.2d 333 (1948), a similar issue was before this Court. Garcia was a dockhand whose principal duty was to load and unload trucks. In the course of his employment, Garcia suffered an epileptic attack in which he fell to the ground, apparently striking his head on a steel edging which protruded from the base of a concrete pole. The jury found that the accidental injury to Garcia’s head was the producing cause of his death. The question before this Court was whether there was a causal connection between the conditions under which Garcia’s work was required to be performed and his resulting injury. This Court held that Garcia’s inj dries arose out of his employment, because “it had ‘causal connection with’ his injuries, ‘either through its activities, its conditions, or its environments.’. ” This Court explicitly held that injuries may be compensable although the fall may have been due to a pre-existing idiopathic condition.

Texas Employers attempts to distinguish Garcia in that Garcia’s injury was caused by an object which presented a peculiar hazard encountered in the scope of his employment. Texas Employers argues that the level ground or surface upon which Page fell presents no hazard which was peculiar to his employment. In General Ins. Corp. v. Wickersham, 235 S.W.2d 215 (Tex.Civ.App. 1950, writ ref’d n. r. e.), Wickersham was employed as a janitor in a restaurant. He fell onto a tile floor sustaining a fatal injury to his head. The cause of the fall was unknown, although the court assumed that it was caused by a dizzy spell. The court noted that cases denying compensation for level-floor falls do so on the theory that a floor presents no risk or hazard that is not encountered everywhere, and that such risks and perils as they do present are only those which confront all members of the public. On the other hand, the court noted that those cases which allow compensation do so on the theory that the injury need not be the product of a peril or hazard which exposes the employee to extraordinary risk, in order to be compensable, not because it should have been foreseen or expected, but because it is a hazard that is peculiar to the employment, and is one that is incidental to and grows out of the employment. The court said that Garcia, supra, made no attempt to pass on the question of whether falls to level ground are compensable since the facts of that case did not involve the necessity for a finding on that question. However, the court added:

“We can find no sound reason for denying a recovery where the fall is to the floor, when recovery is allowed where the fall is from a ladder, or platform or similar place, or into a hole, or against some object such as a table, machine, or post. Suppose the employee had fallen against a counter or showcase. It seems clear that a recovery would be allowed under the Garcia case . . ..” 235 S.W.2d at 219.

This Court found no reversible error in that judgment.

In American General Insurance Company v. Barrett, 300 S.W.2d 358 (Tex.Civ.App. 1957, writ ref’d n. r. e.), Barrett suddenly “blacked out” and fell, striking his head on a paved road. The fatal accident occurred just as Barrett was leaving his place of employment on the company premises. An X-ray revealed a skull fracture. Testimony by doctors supported a conclusion that Mr. Barrett died from natural causes rather than from those of a traumatic origin. However, the testimony also supported a conclusion that the fracture could have caused the death. The trial court found that the skull fracture caused or contributed to cause the death of Mr. Barrett. The Court of Civil Appeals affirmed, stating that the injury originated out of the work of the employer.

“In the instant case it can be said the hard-surfaced road was an instrumentality essential to the work of the employer and falling against it was a hazard to which Barrett was exposed because of his employment and injury and death came to him because he was then working in the course of his employment. . . . ” 300 S.W.2d at 363.

The court noted that the Wickersham holding was with the minority view, stating: “The Wickersham reasoning and decision and the support that the Garcia case indicates is persuasive and this Court is not free to depart from it.”

Again, as in Wickersham, supra, this Court found no reversible error in the judgment. Texas Employers contends that Wickersham and Barrett are “mavericks,” and because of their peculiar factual situations, they distort Garcia. Texas Employers also attempts to distinguish the instant case from Wickersham and Barrett on two grounds. First, it contends that in both cases workmen fell from unexplained causes while Page’s fall was due solely to a pre-existing injury. This argument is without merit. Garcia expressly recognizes that injuries caused or aggravated by known idiopathic conditions can be compensable. Second, the employees in Wickersham and Barrett prior to their falls appeared to be in good physical condition. This argument is likewise without merit. See Sowell v. Travelers Ins. Co., supra.

Texas Employers’ motion for an instructed verdict was based on three grounds. First, the knee “buckling” is in itself the injury complained of and since it was not produced nor did it originate out of the employer’s work, it was not compensable. Second, the evidence showed that the knee “buckling” was caused by a degenerative joint disease. Third, the evidence showed that Page’s problems with his knee had originated several years before and that his knee “buckled” while walking on an essentially level driveway. The trial court found in its ruling that the injury stemmed from the internal collapse of Page’s “skeletal structure maintaining his erectness.” Neither Texas Employers’ motion for an instructed verdict nor the trial court’s order dispenses with the issue of whether the parking lot surface contributed to Page’s injury and if so, whether the surface represented such a hazard within the scope of Page’s employment as to allow recovery for the fall and resultant injury.

The courts of this State have repeatedly held that it is error to instruct a verdict when the evidence raises any material fact issue. In passing upon the question of the trial court’s authority to instruct a verdict, the evidence must be considered in the light most favorable to the party against whom the verdict is instructed. Where there is any conflicting evidence in the record of probative nature, a determination of the issue is for the jury. Air Conditioning Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422 (1952); White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725 (1930).

As heretofore stated, Texas Employers’ motion for an instructed verdict did not state the specific grounds on which it now seeks our reversal. Although Rule 268, Texas Rules of Civil Procedure, provides that a motion for instructed verdict shall state the specific grounds therefor, failure to so state is not always fatal, especially if there are no fact issues raised by the evidence. See In re Estate of Nora A. Price v. State National Bank of El Paso, 375 S.W.2d 900 (Tex.1964); F. W. B. Rockett, M. D. v. Texas State Board of Medical Examiners, 287 S.W.2d 190 (Tex.Civ.App.1956, writ ref’d n. r. e.). However, we cannot say that the facts in the instant case are undisputed. There is evidence that after the fall Page’s knee was swollen and that abrasions were apparent. Hospital records also support the conclusion that the injury to Page’s hand and knee were of recent origin. Page’s testimony surrounding the event also creates a fact issue as to the nature and extent of the injury.

As we stated in Garcia, a fall due to an idiopathic origin will not necessarily preclude recovery. Moreover, this Court has found no reversible error in two judgments which have allowed recovery in level-floor falls. We hold that the evidence in this case presented a fact issue of whether the injury originated out of Page’s employment, that is whether there was a sufficient causal connection between the conditions under which his work was required to be performed and his resulting injury.

Accordingly, the judgment of the Court of Civil Appeals, which remanded the cause for trial, is affirmed.

      . All citations to statutes refer to Vernon’s Annotated Texas Civil Statutes, unless otherwise noted.

      . An idiopathic fall is defined as a fall due to a diseased state of spontaneous origin which is neither sympathetic nor traumatic; that which is self-originated; of unknown causation. See The American Illustrated Medical Dictionary 723 (22 ed. 1951).


text:
    The STATE of Texas, Petitioner, v. Rudolph DUGAR, Respondent.
    No. B-6249.
    Supreme Court of Texas.
    June 29, 1977.
    Rehearing Denied July 27, 1977.

      Ronald L. Wilson, Crim. Dist. Atty., Michael J. Guarino II, Asst. Crim. Dist. Atty., Galveston, for petitioner.
    Philip E. Hosey, Galveston, for respondent.
   DANIEL, Justice.

At issue in this case is whether the district court exceeded its authority under Article 18.18, Texas Code of Criminal Procedure, in ordering $7,692.39 of respondent Dugar’s funds forfeited to the State as gambling proceeds. No statement of facts was brought forward. Having only the transcript before us, we must assume that any necessary fact issues were properly decided against Dugar.

The funds in question were seized from Dugar on December 6, 1974, during a gambling raid. On December 16, 1974, the criminal district attorney of Galveston County, acting on behalf of the State of Texas, filed suit in the Tenth District Court to have the money forfeited as gambling proceeds. The district judge set the matter for a hearing and directed that notice be mailed to Dugar. On March 18, 1975, Du-gar was convicted in the 122nd District Court of “Gambling Promotion: Operating a Gambling Place.” This conviction was based on the arrest of Dugar made during the December 6 raid.

Subsequently, on February 12, 1976, the judge of the Tenth District Court, after reciting the conviction in the 122nd District Court, rendered judgment ordering the funds seized from Dugar at the raid to be forfeited to the State. Dugar appealed the forfeiture judgment to the Court of Civil Appeals, which held that Section (a) of Article 18.18 did not give the Tenth District Court the authority to order the forfeiture, first, because Section (a) required that the court entering the judgment of conviction must also be the court ordering forfeiture, and secondly, because Dugar had not been convicted of any offense listed in Section (a). The Court of Civil Appeals therefore reversed the forfeiture judgment and rendered judgment that Dugar’s money be returned to him. 538 S.W.2d 852. We agree with that portion of the opinion of the Court of Civil Appeals which holds that the Section (a) was inapplicable but find that the forfeiture was properly made under Sections (b)-(f) of Article 18.18. Accordingly, we reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

Article 18.18 provides in part as follows:

“(a) Following the final conviction of a person for possession of a gambling device or equipment, altered gambling equipment, or gambling paraphernalia, for an offense involving a criminal instrument, or an offense involving a prohibited weapon, the court entering the judgment of conviction shall order that the machine, device, gambling equipment or gambling paraphernalia, instrument, or weapon be destroyed or forfeited to the state. If forfeited, the court shall order the contraband delivered to the state, any political subdivision of the state, or to any state institution or agency. If gambling proceeds were seized, the court shall order them forfeited to the state and shall transmit them to the grand jury of the county in which they were seized for use in investigating alleged violations of the Penal Code, or to the state, any political subdivision of the state, or to any state institution or agency.
“(b) If there is no prosecution or conviction following seizure, the magistrate to whom the return was made shall notify in writing the person found in possession of the alleged gambling device or equipment, altered gambling equipment or gambling paraphernalia, gambling proceeds, prohibited weapon, or criminal instrument to show cause why the property seized should not be destroyed or the proceeds forfeited.
“(c) The magistrate shall include in the notice a detailed description of the property seized and the total amount of alleged gambling proceeds; the name of the person found in possession; the address where the property or proceeds were seized; and the date and time of the seizure.”

Since the conviction of Dugar was for an offense not listed under Section (a), we hold that Section (b) et seq. are applicable. Obviously the words “no prosecution or conviction following seizure” refer to prosecutions or convictions for one of the offenses enumerated in Section (a). Although the Court of Civil Appeals held that the “State’s original petition was clearly brought under Section (b)” and the notice and hearing procedures applicable thereto, it did not write on the validity of the forfeiture under Section (b), having previously held Sections (b)-(f) to be unconstitutional in Rumfolo v. State, 535 S.W.2d 16 (Tex.Civ.App.1976). We reversed the Rumfolo decision, 545 S.W.2d 752 (Tex.1976), and held Sections (b)-(f) constitutional after the decision of the Court of Civil Appeals in the instant case had been handed down but prior to oral argument in this Court.

It has been suggested that since Dugar was convicted of a gambling offense, this negates the applicability of Section (b), which is conditioned on the absence of prosecution or conviction. Such a reading is too narrow. We have interpreted Section (a) as applying to situations where there is a conviction for the listed offenses only. If we now interpret Sections (b)-(f) to apply to situations where there is no conviction for any offense as the literal language of the statute indicates, funds that are clearly gambling proceeds could not be forfeited solely because the State obtained a conviction of an offense that was not among those listed, in Section (a). To construe the statute in such a manner would be contrary to the basic premise of an in rem forfeiture proceeding that, while the possessor may not be guilty of any criminal offense, the property seized is of such a nature that it should be destroyed or confiscated by the State. Williams v. State of Texas, 283 S.W.2d 444 (Tex.Civ.App.1955, writ ref’d). Therefore, we believe that the Legislature must have intended that Sections (b)-(f) provide the authority for forfeitures in all cases not covered by Section (a), that is, in all cases other than those in which there is a conviction for a listed offense. Under this interpretation Sections (b)-(f) apply to Dugar’s case.

Dugar argues that the judge of the Tenth District Court was not the “magistrate to whom the return was made” and therefore lacked jurisdiction. The proceeds here were subject to the order of a justice of the peace of Galveston County, presumably because that court issued the search warrant under which the December 6 raid was conducted. Dugar argues that the justice of the peace therefore should have exclusive jurisdiction to pass on the forfeiture.

Article 5, Section 8 of the Texas Constitution provides that “[t]he District Court shall have original jurisdiction . in all suits in behalf of the State to recover penalties, forfeitures and escheats.” See also Article 1906(1), Texas Revised Civil Statutes (1964). Although Article 5, Section 1 of the Texas Constitution gives the Legislature the power to “establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto,” we held in Reasonover v. Reasonover, 122 Tex. 512, 58 S.W.2d 817, 819 (1933), that:

“The amendment to section 1, article 5 adopted in 1891, does not purport to take away from the district court, or to authorize the Legislature to take away from it, its constitutional jurisdiction. It does authorize the Legislature to take from it the exclusive nature of its jurisdiction over the subjects mentioned in section 8, article 5, and permits the Legislature to give jurisdiction over them also to other courts. The Legislature cannot take away from a district court jurisdiction given it by the Constitution.”

See also State ex rel Rector v. McClelland, 148 Tex. 372, 224 S.W.2d 706 (1949). Therefore, the most that the Legislature could constitutionally accomplish in Article 18.-18(b) — (f), was to grant concurrent jurisdiction to a court to which the return was made that was not also a district court. Any district court within the county already had jurisdiction under the Constitution. When two courts have concurrent jurisdiction of a suit, the court in which the suit is first filed acquires dominant jurisdiction. State ex rel George v. Baker, 120 Tex. 307, 40 S.W.2d 41 (1931); Neal v. Texas Employers’ Insurance Association, 118 Tex. 236, 14 S.W.2d 793 (1929); Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926). In the present case the Tenth District Court acquired dominant jurisdiction. Therefore it was correct in proceeding to order the forfeiture.

The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court is affirmed.

      . All statutory inferences are to Vernon’s Annotated Texas Code of Criminal Procedure unless otherwise noted.

      . Sections (d), (e) and (f) provide further details as to notice, hearing, and evidence in forfeiture cases brought under Section (b).


author: ODOM, Judge. PHILLIPS, Judge, ROBERTS, Judge,

text:
    Edward Lincoln KING, Appellant, v. The STATE of Texas, Appellee.
    No. 53641.
    Court of Criminal Appeals of Texas.
    May 11, 1977.
    Rehearing Denied June 8, 1977.

      Paul P. Riley, Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Hagler, Jon Sparling and Stephen P. Tokoly, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted for capital murder after having been indicted for shooting and killing Leslie G. Lane, a Dallas police officer. V.T.C.A., Penal Code Sec. 19.-03(a)(1). Punishment was assessed at death after the jury affirmatively answered the issues submitted to them at the punishment stage of the trial pursuant to Art. 37.071, V.A.C.C.P.

The six grounds of error presented for our review challenge the charges submitted to the jury at the guilt and punishment stages of the trial. The sufficiency of the evidence is not contested.

Before the charge was submitted to the jury at the guilt stage of the trial, the appellant requested the court to “give instructions to the jury limiting extraneous acts to the purpose for which such evidence was admitted.” Appellant apparently desired a limiting instruction on evidence of extraneous offenses he committed both shortly before and after the murder of Officer Lane. These offenses included theft of a police officer’s car, aggravated assault, theft of a policewoman’s pistol and purse, resisting arrest, and impersonation of a police officer.

In his brief, appellant concedes that the evidence of the extraneous offenses was “probably legally admissible.” He contends, however, that the court should have instructed the jury that such evidence should be limited to the issue of appellant’s identity.

Two valid reasons exist for overruling this ground of error. First, the evidence of the extraneous offenses showed “the context in which the criminal act occurred— what has been termed the ‘res gestae’.” Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97 at 100. In Arivette v. State, 513 S.W.2d 857, at 864, we stated:

“. . . it is not necessary to give a limiting instruction on an extraneous offense which constitutes a part of the res gestae of the offense for which an accused is on trial.”

The second basis for overruling appellant’s contention is provided by the generous charge given by the trial court at the guilt stage of the trial:

“You are further instructed that if there is any testimony before you in this case regarding the defendant’s having committed offenses other than the offense alleged against him in the indictment, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed, and even then you may only consider the same in determining the context, if it does, in which the act alleged in the indictment occurred, if it did, and in determining the identification of the defendant, if any was in fact determined, in connection with the offense, if any, alleged against him in the indictment and for no other purpose.”

Appellant is in no position to challenge the charge given by the trial court since he received more than he was entitled to under our decision in Arivette v. State, supra. This ground of error is without merit.

The final five grounds of error complain of the charge submitted to the jury at the punishment stage of the trial.

Appellant asserts that the trial court committed reversible error by failing, after timely request, to define the following words contained in Art. 37.071(b), V.A.C. C.P.: deliberately; probability; criminal acts of violence; continuing threat to society. At the time of appellant’s trial, Article 3.01, V.A.C.C.P., provided:

“All words, phrases, and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specifically defined; and, unless herein specially excepted have the meaning which is given to them in the Penal Code.”

The words and phrases in issue have not been specially defined.

This Court has been faced with similar contentions in the past. In Joubert v. State, 136 Tex.Cr.R. 219, 124 S.W.2d 368, we held that the word “voluntarily” as contained in the indictment charging murder with malice need not be defined. We have also stated that “burglarious entry,” Thomas v. State, Tex.Cr.App., 543 S.W.2d 645; “sound memory and discretion,” Hogan v. State, Tex.Cr.App., 496 S.W.2d 594; “reasonable doubt,” Whitson v. State, Tex.Cr.App., 495 S.W.2d 944; and “pre-meditated design,” Mitchell v. State, Tex.Cr.App., 365 S.W.2d 804; need not be defined.

The reason for not requiring the definition of common terms and phrases was stated in Joubert v. State, supra:

“Where terms used are words simple in themselves, and are used in their ordinary meaning, jurors are supposed to know such common meaning and terms and under such circumstances such common words are not necessarily to be defined in the charge to the jury.” 124 S.W.2d at 369.

Appellant contends that the jury will not have adequate guidelines to assist its determination of the issues contained in Art. 37.071, supra, unless definitions for the terms contained therein are provided in the charge to the jury. In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929, however, the Supreme Court of the United States concluded that the submission of the issues provided by Art. 37.071, supra, constitutionally guided the jury’s determination of the punishment issues. No special definitions of the terms of that statute were required.

We hold that the court need not provide special definitions for these terms in its charge to the jury during the punishment stage of a capital murder trial. Appellant’s grounds of error are overruled.

The final ground of error asserts that the court erroneously refused to submit a charge on circumstantial evidence with regard to the issue of whether there was a probability he would commit future acts of violence constituting a continuing threat to society. (Issue number two of Art. 37.071, supra.) This contention was expressly rejected in Shippy v. State (Tex.Cr.App., No. 53,831, April 27, 1977). The final ground of error is overruled.

The judgment is affirmed.

PHILLIPS, Judge,

concurring.

For the reasons set forth in Shippy v. State (Tex.Cr.App., No. 53,831, decided April 27, 1977), I concur in the overruling of appellant’s fifth ground of error relating to the giving of a charge on circumstantial evidence at the punishment phase of the trial.

Although the issue was not raised in the brief, I believe it is the duty of this Court to pass on the sufficiency of the evidence to support the jury’s answer “yes” to the three special issues submitted under Art. 37.-071(b), V.A.C.C.P.

The Supreme Court announced in Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976):

“By providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. Because this system serves to assure that sentences of death will not be ‘wantonly’ or ‘freakishly’ imposed, it does not violate the Constitution. Furman v. Georgia, 408 U.S., [238] at 310, 92 S.Ct. at 2762 [33 L.Ed.2d 346]”.

In upholding Georgia’s capital-sentencing procedures, the Supreme Court noted in Gregg v. Georgia, 428 U.S. 153, 198, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976):

“As an important additional safeguard against arbitrariness and caprice, the Georgia statutory scheme provides for automatic appeal of all death sentences to the State’s supreme court. That court is required by statute to review each sentence of death and determine whether, it was imposed under the influence of passion or prejudice,- whether the evidence supports the jury’s finding of a statutory aggravating circumstance, > and whether the sentence is disproportionate compared to those sentences imposed in similar cases.
* * * * * *
Moreover to guard further against a situation comparable to that , presented in Furman, the Supreme Court of Georgia compares each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate. On their face these procedures seem to satisfy the concerns of Furman.”

Similarly, in Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct. 2960, 2967, 49 L.Ed.2d 913 (1976) the Supreme Court held:

“The Florida capital-sentencing procedures thus seek to assure that the death penalty will not be imposed in an arbitrary or capricious manner. Moreover, to the extent that any risk to the contrary exists, it is minimized by Florida’s appellate review system, under which the evidence of the aggravating and mitigating circumstances is reviewed and reweighed by the Supreme Court of Florida ‘to determine independently whether the imposition of the ultimate penalty is warranted.’ [Citations omitted]. The Supreme Court of Florida like that of Georgia, has not hesitated to vacate a death sentence when it has determined that the sentence should not have been imposed. Indeed, it has vacated eight of the 21 death sentences that it has reviewed to date. [Citations omitted.]
Under Florida’s capital-sentencing procedures, in sum, trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life. Moreover, their decisions are reviewed to insure that they are consistent with other sentences imposed in similar circumstances. Thus, in Florida, as in Georgia, it is no longer true that there is ‘-“no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases where it is not.” ’ Gregg v. Georgia, ante; 428 U.S. p. 188, 96 S.Ct. p. 2932, quoting Furman v. Georgia, 408 U.S. at 313, 92 S.Ct. at 2764 (White, J., concurring). On its face the Florida system thus satisfies the constitutional deficiencies identified in Fur-man.”

See also Livingston v. State, Tex.Cr.App., 542 S.W.2d 655, at page 663 (dissenting opinion).

This conviction arises out of a series of events that led to the shooting of Officer Leslie G. Lane, a Dallas police officer, during the early morning hours of March 2, 1974. About 11:00 p. m., March 1, appellant assaulted Officer Betty Robinson of the Dallas Police Department with a chrome plated pistol and he took her car which contained her service revolver, purse, badge and handcuffs. These items, along with a chrome plated pistol, were found underneath the cushions of the sofa on which appellant was sleeping at the time of his arrest around 7:00 a. m., March 2.

. About 2:00 or 2:30 a. m. on March 2, two prostitutes got into a car matching the description of Officer Robinson’s car. Appellant was identified in court as the driver of the car. One of the women escaped, but appellant drove away with the other woman, telling her he was taking her to White Rock Lake and he would kill her. The woman was forced to sit on the floor of the car between the dashboard and the front seat, but she was able to hear sirens and she could see reflections of flashing red lights. Appellant stopped the car and she heard another car door slam, saw a police officer approach the car and asked the officer to help her because the man was trying to kill her. Appellant drove off and she heard sirens at a distance. The car wrecked into a lawn; appellant crawled out the window on the driver’s side and ran behind some bushes. A uniformed police officer also went around the bushes and then she heard two gun shots.

Officer Thomas testified he was on duty in a marked police car at 2:45 a. m., March 2, when he observed a car matching the description of Officer Robinson’s car with one occupant, identified in court as appellant. After following the car for a block, Officer Thomas turned on the siren and red light and the car pulled over. Officer Thomas approached the car and noticed the man was looking in the rear view mirror and Thomas saw the head of a woman below the level of the seat. Before Officer Thomas reached the car, the man drove off, squealing the tires and fishtailing around the corner. Officer Thomas pursued the car for several blocks at a speed of over 100 miles per hour. Officer Thomas radioed the dispatcher and heard Officer Lane say he was right behind Thomas. The car driven by appellant ended up in the front yard of 4703 Live Oak. As Officer Thomas’ patrol car skidded to a stop in the driveway, he saw the man crawl out the driver’s window and told the man to halt. Officer Thomas heard two gun shots and ran toward the direction of the shots into the back yard of 4707 Live Oak. Officer Thomas could not see anyone, so he returned to the front of the house, whereupon he heard Officer Lane’s voice. He found Officer Lane lying on his back on a grassy strip between two driveways. Lane told him he had been shot and to call for an ambulance.

Testimony showed Officer Lane died as the result of two gun shot wounds in the left lateral chest area. The shots had been fired from the .38 Smith and Wesson pistol that he been issued to Officer Robinson. A known palm print of appellant matched a palm print lifted from the hood of Officer Robinson’s car.

About 3:00 a. m., March 2, a man identified as appellant approached two persons seated in a parked car. After identifying himself as a police officer and exhibiting a badge and a silver gun, appellant told the woman he would have to take her downtown in connection with a robbery at a Seven-Eleven Store. After driving for a long time, appellant stopped in a driveway of a house that was for sale and opened the woman’s purse, cursing when there was no money in it. They proceeded to another vacant house two or three blocks distant, where appellant got out of the car and left. The woman directed the police to the two houses and appellant was arrested later that morning at 3515 Frosty Trail, located across the alley from the second house.

At the punishment phase of the trial, the State introduced testimony of five witnesses that the appellant’s reputation in the community for being a peaceful and law abiding citizen was bad. By fingerprint comparison, the State established that appellant had been previously convicted eleven times. Appellant was shown to have been convicted on January 16, 1962, of two misdemeanors, theft and carrying a prohibited weapon, a pistol; on March 27,1962, of assault with intent to commit robbery; on April 9, 1963, of the misdemeanor offense of aggravated assault on a female; on April 22, 1963, of assault to murder with malice, robbery, two burglaries of a private residence at night, and three felony thefts. On April 22, 1963, appellant was sentenced to serve three ten-year terms and four twenty-year terms; he was paroled on June 26, 1972.

Appellant did not offer any evidence in his behalf at the guilt or punishment phase of the trial.

In light of the circumstances surrounding the instant offense, the evidence introduced at the punishment stage, and the lack of mitigating evidence, I would hold the evidence is sufficient to support the jury’s answer of “yes” to the three special issues submitted under Art. 37.071(b), V.A.C.C.P.

For the foregoing reasons, I concur in the affirmance of this conviction.

ROBERTS, Judge,

dissenting.

I dissent for the reasons stated in Part II of my dissenting opinion in Shippy v. State (Tex.Cr.App., No. 53,831, delivered April 27, 1977). Furthermore, the fact that the jury is instructed that the State must prove each individual punishment element beyond a reasonable doubt does not cure the error of refusing a request for a circumstantial evidence charge when direct evidence of the main fact in issue is absent. This is the federal rule, United States v. Rodriguez, 523 F.2d 738 (5th Cir. 1975), which is not followed in Texas.

      . Article 37.071(b), supra, provides: “On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; . . . ”

      . Art. 3.01, supra, was amended in 1975 and now provides: “All words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specially defined.”

      .Also see, Powell v. State, Tex.Cr.App., 538 S.W.2d 617, where we held that the meaning of the term “an act of violence or threatened violence to a person or property” as used in V.T. C.A., Penal Code Sec. 46.05, can be understood by a person of ordinary intelligence. In Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976), we concluded that the term “a probability” in Art. 37.071(b)(2), supra, is not vague or overbroad and that it does present an intelligible standard for determination of the punishment issue in a capital murder trial.

      . Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).


author: DALLY, Commissioner.

text:
    Horacio VALDEZ, Appellant, v. The STATE of Texas, Appellee.
    Nos. 54477, 54478.
    Court of Criminal Appeals of Texas.
    July 6, 1977.

      Ruben Montemayor and Harry A. Nass, Jr., San Antonio, for appellant.
    Ted Butler, Dist. Atty., Lawrence J. Sou-za and Roy R. Barrera, Jr., Asst. Dist. At-tys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

These are appeals from convictions for the offense of felony theft. The punishment in each case is imprisonment for 6 years.

The appellant was charged with and convicted of felony theft of “State Welfare Pood Stamp Coupons” under the general theft statute, V.T.C.A. Penal Code, Sec. 31.-03. The Public Welfare Act, Article 695c, V.A.C.S., which provides that the Commodity Distribution Division of the State Department of Public Welfare shall be responsible for the distribution of food stamps, also provides, that whoever obtains assistance greater than that to which he is entitled by means of a willfully false statement or representation shall be deemed guilty of a misdemeanor. This specific statute controls over the general theft statute, and the district court did not have jurisdiction of these prosecutions. Jones v. State, 552 S.W.2d 836 (Tex.Cr.App., decided June 29, 1977). See also Cuellar v. State, 521 S.W.2d 277 (Tex.Cr.App.1975); Sarratt v. State, 543 S.W.2d 391 (Tex.Cr.App.1976); Ex parte Harrell, 542 S.W.2d 169 (Tex.Cr.App.1976); Hines v. State, 515 S.W.2d 670 (Tex.Cr.App.1974).

The judgments are reversed and prosecutions under these indictments are ordered dismissed.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Genaro VARELA, Appellant, v. The STATE of Texas, Appellee.
    No. 54504.
    Court of Criminal Appeals of Texas.
    July 6, 1977.

      Bart Cox, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Thomas C. Roepke, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal involves a conviction for aggravated robbery where the jury assessed punishment at five (5) years upon appellant’s plea of guilty.

Appellant’s sole ground of error reads:

“There was sufficient evidence in this case to raise the issue of the defendant’s sanity at the time of the offense, thus requiring the court to withdraw the guilty plea and instruct on the insanity defense. Failure of the court to do so was reversible error.”

This court has for years held that when evidence introduced before a jury (when a defendant has entered a guilty or nolo contendere plea) makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is required, sua sponte, to withdraw the accused’s guilty or nolo con-tendere plea and enter a not guilty plea for the accused. E. g. Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975 (1915); Taylor v. State, 88 Tex.Cr.R. 470, 227 S.W. 679 (1921); Yantis v. State, 95 Tex.Cr.R. 541, 255 S.W. 180 (1923); Aills v. State, 114 Tex.Cr.R. 345, 24 S.W.2d 1097 (1930); Villa v. State, 122 Tex.Cr.R. 142, 53 S.W.2d 1023 (1932); Thompson v. State, 127 Tex.Cr.R. 494, 77 S.W.2d 538 (1935); Edwards v. State, 114 S.W.2d 572 (Tex.Cr.App.1938); Navarro v. State, 141 Tex.Cr.R. 196, 147 S.W.2d 1081 (1941); Rayson v. State, 160 Tex.Cr.R. 1103, 267 S.W.2d 153 (1954); Fite v. State, 163 Tex.Cr.R. 279, 290 S.W.2d 897 (1956); Richardson v. State, 164 Tex.Cr.R. 500, 300 S.W.2d 83 (1957); Edworthy v. State, 371 S.W.2d 563 (Tex.Cr.App.1963); Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App.1968); Swanson v. State, 447 S.W.2d 942 (Tex.Cr.App.1969); Hayes v. State, 484 S.W.2d 922 (Tex.Cr.App.1972); Lee v. State, 503 S.W.2d 244 (Tex.Cr.App.1973); Lewis v. State, 529 S.W.2d 550 (Tex.Cr.App.1975); Gates v. State, 543 S.W.2d 360 (Tex.Cr.App.1976); Woodberry v. State, 547 S.W.2d 629 (Tex.Cr.App.1977); Malone v. State, 548 S.W.2d 908 (Tex.Cr.App.1977).

The rule has been recognized and applied when the guilty or nolo contendere plea was before the court without a jury. Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942); Gonzales v. State, 480 S.W.2d 663 (Tex.Cr.App.1972); Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Trevino v. State, 519 S.W.2d 864 (Tex.Cr.App.1975); Cooper v. State, 537 S.W.2d 940 (Tex.Cr.App.1976); Sanchez v. State, 543 S.W.2d 132 (Tex.Cr.App.1976). It has also been held applicable to revocation of probation proceedings. Roberson v. State, 549 S.W.2d 749 (Tex.Cr.App.1977).

For the rule to come into play the evidence must go farther than just tending to show a defensive issue, it must reasonably and fairly present such issue before the trial court is required to withdraw the guilty or nolo contendere plea. Reyna v. State, supra; Galvan v. State, 525 S.W.2d 24 (Tex.Cr.App.1975); Davis v. State, 507 S.W.2d 740 (Tex.Cr.App.1974); Jones v. State, 491 S.W.2d 883 (Tex.Cr.App.1973).

With this background, a review of the facts concerning the instant case will be required. In a hearing on October 16,1975, the appellant was found by a jury to be competent to stand trial. Trial on the merits commenced on January 13, 1976 before another jury on appellant’s plea of guilty. It was during this trial that appellant contends that evidence sufficiently raised the defensive issue of insanity.

In addition to his guilty plea before the jury, the evidence of appellant’s guilt was overwhelming. Appellant, however, calls our attention to the testimony of the complaining witness that the appellant was wearing an Army field jacket “and as close as I could figure it out it VARLA, something like that on the name tag.” He further points to the appellant’s own testimony that prior to the offense he had been drinking seven days straight without eating or sleeping. He also directs our attention to the following portion of his cross-examination:

“Q. What were you all going to do with the money that you took in the robbery?
“A. Oh, I don’t know, it happened all of a sudden, just like when you are a little kid you have an intention to have something you take it that moment. I saw the money and I had an intent that I could use it and I took it.
“Q. What is the reason you went in the store, to buy Kool cigarettes or rob the store?
“A. The reason was to buy the cigarettes. After I saw the money I robbed the store, but first it was for cigarettes.”

Appellant’s brief also points to some psychiatric testimony offered at the hearing on competency on October 16, 1975, but not offered at the trial on the merits. Such evidence from another hearing cannot be considered in determining whether a defensive issue has been sufficiently raised at the trial on the merits to cause the court to withdraw the guilty plea. Faz v. State, supra. Therefore, we are limited to the testimony at the trial on the merits in passing upon appellant’s contention.

The 26 year old appellant testified clearly and lucidly. He related the various schools he had attended, mostly in special education classes, and that he graduated from Ysleta High School in 1969 in special education. That same year, he was drafted into the Army and served two and a half years, one year and half in Vietnam. He attained the rank of E — 4 before his honorable discharge in May, 1971. He then related the various jobs he held until he commenced studying in 1973 at El Paso Community classes in which he got passing grades except in mathematics.

Nicola Niglio testified he was a scoutmaster for a troop of retarded children and that the appellant at age 15 or so was a member of the troop. He recalled an instance in which the appellant became so emotionally upset before a Board of Review that he “soiled his trousers.” He related, however, that the appellant had achieved Star Badge, which is the third highest ranking for a scout.

Charles Spence, Assistant Director of Special Education, Ysleta Independent School District, met the appellant during the 1968-1969 school year but had not seen the appellant for eight years at the time of trial. He stated appellant was “always in the educable program,” but there was no special education program for students whose IQ was about 75. He testified the appellant lacked a lot of strategy for achieving and had a tremendous need to impress people, which caused him to do things which were sometimes socially unacceptable.

Appellant’s mother, Federica Varela, testified as to the various schools he attended and as to his learning difficulties.

After reviewing the foregoing evidence, as well as the particular portions called to our attention by appellant, we cannot conclude that the court erred iri failing to withdraw the guilty plea on its own motion on the basis that the evidence sufficiently raised the defensive issue of insanity as a defense.

V.T.C.A., Penal Code, § 8.01, provides: “(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of mental disease or defect, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.
“(b) The term ‘mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

The evidence does show that appellant entered the store where the robbery occurred wearing an Army jacket with his name on it. While it may be argued that this reflects stupidity on the part of a would-be robber, it was explained by appellant’s testimony he went into the store to purchase cigarettes, but suddenly committed the robbery when he saw the money. The fact that appellant had been drinking for seven days does not raise the defensive issue of insanity under said § 8.01. See V.T.C.A., Penal Code, § 8.04. Further, the extent of the drinking each day was not explored.

The fact that appellant testified in response to a question as to what he had planned to do with the money that he took it suddenly like a little kid who had an intention to have something nor his later testimony that “it was just one of those moments when you have to do something you do it. To me I don’t know, I don’t know what got into me. All I know is I done it, and I robbed the store, that was it” is not sufficient to raise an issue of whether as a result of a mental disease or defect he did not know his conduct was wrong or that he was incapable of conforming his conduct to the requirements of the law allegedly violated. See Y.T.C.A., Penal Code, § 8.01.

It is to be remembered that evidence must go farther than just tending to show a deférisive issue, it must reasonably and fairly raise such issue before the rule ündér discussion comes into play. '

The court did not eir in failing to with-' draw the guilty plea under the circumstances here discussed and the rulé involved. Further, there being no objection nor special requested instruction and no evidence sufficient to raise the issue, the court did not err in failing to charge on the defensive' issue of insanity, particularly in light of-the guilty plea before the jriry.

The judgment is affirmed:'

PHILLIPS, J., dissents.

      . Appellant seeks to distinguish Faz on the ground that in Faz there was a different judge at the preliminary hearing where evidence was offered and that in the instant case the same judge presided at the trial and at the competency hearing. Our decision in Faz was not based on the fact of different judges.


author: DAVIS, Commissioner.

text:
    Herbert Lavert PARKS, Appellant, v. The STATE of Texas, Appellee.
    No. 55085.
    Court of Criminal Appeals of Texas.
    July 6, 1977.

      Terry G. Collins, Houston (Court-appointed), for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appellant waived trial by jury and entered a plea of guilty before the court to two counts of aggravated robbery. Punishment was assessed at imprisonment for fifteen years and one day on each count.

Appellant’s court-appointed counsel has filed a brief in which he states that the appeal is wholly frivolous and without merit. Although the brief does not contain any arguable grounds of error, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), it does contain an exhaustive and professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. Currie v. State, Tex.Cr.App., 516 S.W.2d 684. A copy of counsel’s brief, “. a copy of the Record, including the judgment and sentence, all exhibits, as well as the transcript of the proceedings,” have been furnished appellant and appellant has been advised that he may file a pro se brief. No pro se brief has been filed.

We have examined the record and find no merit in the appeal except for the fact that only one sentence was pronounced in the case while the indictment contained two counts of aggravated robbery.

It appears that the indictment was drafted under the provisions of V.T.C.A., Penal Code, Secs. 3.01 and 3.02, and Art. 21.24, V.A.C.C.P., as amended.

Article 21.24, supra, provides in part:

“(a) Two or more offenses may be joined in a single indictment, information, or complaint, with each offense stated in a separate count, if the offenses arise out of the same criminal episode, as defined in Chapter 3 of the Penal Code."

Section 3.01, supra, provides:

“In this Chapter, ‘criminal episode’ means the repeated commission of any offense defined in Title 7 of this code (Offenses Against Property).”

Section 3.02, supra, provides in part:

“(a) A defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode.”

The offense of aggravated robbery is provided for in V.T.C.A., Penal Code, Sec. 29.-03, which is found in Title 7 of that code.

An examination of the record reveals that only one sentence was pronounced in this case. That sentence, which recites that appellant had “been adjudged to be guilty of aggravated robbery, as charged in two counts of the indictment” and that punishment had been assessed at fifteen years and one day, then orders appellant confined for a term of not less than five years nor more than fifteen years and one day.

V.T.C.A., Penal Code, Sec. 3.03, provides:

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

Unlike the situation found in White v. State, Tex.Cr.App., 543 S.W.2d 130, we are unable to determine upon which count of the indictment the single sentence was pronounced. In instances where two convictions have been based on the same evidence and under the doctrine of carving one of the two offenses is invalid, we have held that the accused was presumptively first convicted in the case with the lower numbered indictment. See Ex parte Calderon, Tex.Cr.App., 508 S.W.2d 360; Ex parte Adams, Tex.Cr.App., 541 S.W.2d 440; Rice v. State, Tex.Cr.App., 548 S.W.2d 725; Ex parte Birl, Tex.Cr.App., 545 S.W.2d 169.

Employing the same rationale in the instant case, appellant was presumptively first convicted on the first count of the indictment and judgment and sentence were entered thereon.

If a proper sentence was in fact pronounced on the second count of the indictment, but there was a failure to enter sentence, it may now be entered nunc pro tunc under Art. 42.06, V.A.C.C.P. See Shaw v. State, Tex.Cr.App., 539 S.W.2d 887. If, on the other hand, sentence was not pronounced, the trial court may now pronounce sentence and an appeal may be taken therefrom if appellant so desires.

The judgment is affirmed as to the conviction upon the first count of the indictment. The appeal is dismissed as to the conviction arising out of the second count of the indictment.

Opinion approved by the Court.

      . Judgment should also be entered upon the conviction arising out of the second count of the indictment. White v. State, supra.


author: GREEN, Commissioner.

text:
    Ex parte Faye BUFKIN, Juan De la Cruz and Richard Bowker.
    No. 55067.
    Court of Criminal Appeals of Texas.
    July 6, 1977.
    Michael F. Lynch, Austin, for appellant.

      Ronald D. Earle, Dist. Atty., and Richard E. Banks, Asst. Dist. Atty., Jim D. Yollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This is an appeal by three appellants seeking relief from an order of the 147th District Court of Travis County setting the bail of each at $150,000. Appellants are jointly under indictment for criminal conspiracy to commit capital murder, a first degree felony. V.T.C.A. Penal Code, Sec. 15.02. Due to their inability to furnish bail in the sum fixed by the court, each is now confined in the county jail of Travis County-

On May 4, 1977, appellants were arrested in Austin and charged with the first degree felony of criminal conspiracy to murder peace officer J. Wolsch. Bail for each appellant was set at $200,000. At a hearing in the 147th District Court on their applications to reduce the amount of bail, the court heard evidence and granted their applications to the limited extent that bail of each was reduced to $150,000.

The only evidence introduced by the State at the hearing was the indictment charging appellants with the aforementioned felony. There was no evidence introduced as to any of the facts or details of the alleged offense.

The undisputed evidence reflects that appellant Bowker is an experienced and competent carpet installer, residing and employed in Austin at the time of his arrest. He has two children living in Houston with his wife by a former marriage, whom he visited regularly and for whose support he contributed $200 monthly. Hardy Fields, his employer, testified that should Bowker be released from jail pending trial Fields would reemploy him and he “would want to know with whom he is running around, and this sort of thing, you know.” Bowker testified he had been placed on five years’ probation when he was 17 years of age, which was 15 years before this hearing, and that he had completed that term without incident and had not been in trouble with the law since.

Appellant Bufkin, 24 years of age, and divorced, sister of appellant Bowker, lived in Houston with her 3 year old daughter, and was at the time of her arrest employed at a “family type club” bar in Houston. She averaged making $900 a month as such employee. If released from jail she could get her job back, and she would go to Houston to take care of herself and daughter. She had no past criminal record.

Appellants Bowker and Bufkin and members of their families testified that efforts to make bond in the sum of $200,000 had been fruitless and that the highest bail each could make was $20,000.00.

Appellant De la Cruz, 32 years old, lived in Sugarland with his wife of 13 years and their three children. He owned his home, on which he was making payments, and another piece of property in Sugarland, also mortgaged. He was honorably discharged from the army in 1966 as a sergeant, attended college, and lacked 13 hours of securing a degree in elementary education. He is a member of the Disabled American Veterans, Veterans of Foreign Wars, and the American Legion. When he was fifteen years old he “had a little trouble while a juvenile — a bunch of kids drinking, or something like that.” Otherwise, he had no criminal record. He testified he could secure employment with “Imperial Sugar Company” where he had worked, if released from jail. The record reflects that all efforts for him to make a $200,000 bond had failed, and that the highest bail he could make was $15,000 or $20,000.

Other than the evidence of the bare fact of the indictment presented by the Travis County grand jury and the arrests, the record presents no effort by the State to suggest that any of the appellants would not appear in court for trial or for any hearing in their case.

Art. 17.15, V.A.C.C.P., Rules for filing amount of bail, provides:

“The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:
“1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
“2. The power to require bail is not to be so used as to make it an instrument of oppression.
“3. The nature of the offense and the circumstances under which it was committed are to be considered.
“4. The ability to make bail is to be regarded, and proof may be taken upon this point.”

Although the indictment charges the appellants with the first degree felony of conspiracy to commit capital murder, we are unable, in the absence of evidence, to determine any of the circumstances under which the State expects to show the offense was committed. See Ex parte Cevallos, Tex.Cr.App., 537 S.W.2d 744; Ex parte Taylor, Tex.Cr.App., 531 S.W.2d 335. The nature of the offense involves the punishment permitted by law. See Ex parte Clark, Tex.Cr.App., 537 S.W.2d 40. The punishment for a first degree felony is life or a term of not less than 5 nor more than 99 years. V.T.C.A. Penal Code, See. 12.32.

It is well established that ability or inability to make bail does not, alone, control in determining the amount; however, it is an element to be considered along with the others named in Art. 17.15, V.A.C. C.P., supra. Ex parte Clark, supra; Ex parte McClellan, Tex.Cr.App., 545 S.W.2d 483. While bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, the power to require bail is not to be used so as to make it an instrument of oppression. See Art. 17.15(1), and (2), supra; Ex parte Kerr, Tex.Cr.App., 549 S.W.2d 6; Ex parte Clark, supra.

Taking into consideration all of the foregoing, we find the bail set by the trial court is excessive. It is ordered reduced, and bail is set for each appellant in the sum of $15,000.

It is so ordered.

Opinion approved by the Court.

ODOM, J., concurs, but would set the amount of bail at $25,000.

DOUGLAS, J., dissents.