author: ONION, Presiding Judge.

text:
    Johnny HOLLINS, Appellant, v. The STATE of Texas, Appellee.
    No. 55433.
    Court of Criminal Appeals of Texas.
    Oct. 11, 1978.

      Ralph E. Hutchmacher, Craig M. Shivers, Houston, for appellant.
    Carol S. Yance, Dist. Atty., James C. Brough and Keno M. Henderson, Jr., Asst. Dist. Attys., Houston, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for burglary of a building. After the jury found the enhancement paragraphs of the indictment alleging two prior felony convictions were true, the court assessed appellant’s punishment at life imprisonment. See V.T.C.A., Penal Code, § 12.42(d). On appeal we are confronted with a claim as to the invalidity of the enhancement portion of the indictment and a contention that jury note-taking was improperly permitted.

I.

Initially, appellant urges the trial court “erred in failing to grant defendant’s motion to quash the enhancement paragraphs of the indictment because the enhancement paragraphs were at a fatal variance with the proof.”

Appellant directs our attention to two oral motions to quash urged during the trial on the merits, but neither is based on the foregoing contention. Thus, the matter urged on appeal was never presented to the trial court. Nothing is presented for review.

Further, and more importantly, we observe that if the proof failed to support the enhancement allegations the punishment could not be legally enhanced, but this would not be grounds to quash that portion of the indictment. The office of a motion to quash an indictment is normally addressed to the sufficiency of the allegations therein, and not to whether there may be or is a variance between the allegata and the probata.

II.

After reviewing and construing the argument submitted in support of the foregoing ground of error, we conclude that the stated ground of error is not the real thrust of appellant’s argument. In Article 40.09, § 9, V.A.C.C.P., it is stated in part:

“. . .If the defendant includes in his brief arguments supporting a particular ground of error, they shall be construed with it in determining what point of objection is sought to be presented by such ground of error; and if the court, upon consideration of such ground of error in the light of arguments made in support thereof in the brief, can identify and understand such point of objection, the same shall be reviewed notwithstanding any generality, vagueness or any other technical defect that may exist in the language employed to set forth such ground of error.”

The arguments advanced in appellant’s brief under this ground of error are confusing and somewhat multifarious, but the real thrust of appellant’s contention is that the allegations as to the prior convictions used for enhancement did not allege the particular courts in which said convictions occurred so as to enable him to take issue thereon, and to show, if possible, there was a mistake in identity or that there was no final formal conviction or the like. We do observe that the appellant did make an oral motion to quash the enhancement portion of the indictment on this basis late in the trial on the merits. We shall therefore consider, under the mandate of Article 40.-09, § 9, supra, appellant’s contention.

The enhancement paragraphs (so designated in indictment) alleged:

“Before the commission of the offenses alleged in Counts One and Two on July 23, 1951, in Cause Nos. 64148 and 64601, in Harris County, Texas, the Defendant was convicted of the felony offenses of Attempted Burglary and Theft, respectively.
“Before the commission of the offenses alleged in Counts One and Two, and after the convictions in Cause Nos. 64148 and 64601 were final, the Defendant committed the felony of Unlawfully Breaking and Entering a Motor Vehicle and was convicted on April 14,1959, in Cause No. 86566, in Harris County, Texas.”

Count No. 2 was waived and abandoned by the State, and the jury found the appellant guilty of burglary as charged in Count No. 1. At the beginning of the penalty stage of the trial, upon the motion to quash being made, the State asked to delete from the allegations of the prior convictions those concerning the attempted burglary conviction. Thereafter, the court submitted to the jury the question of whether the appellant had been previously convicted of theft and breaking and entering a motor vehicle.

It is well settled that it is not necessary to allege prior convictions for the purpose of the enhancement of punishment with the same particularity as must be used in charging the original offense. Broughton v. State, 148 Tex.Cr.R. 445, 188 S.W.2d 393 (1945); Farris v. State, 155 Tex.Cr. 261, 233 S.W.2d 856 (1950); Tucker v. State, 155 Tex.Cr.R. 304, 234 S.W.2d 877 (1950); Bailey v. State, 163 Tex.Cr.R. 459, 293 S.W.2d 649 (1956); Jones v. State, 164 Tex.Cr.R. 253, 298 S.W.2d 569 (1957); Warden v. State, 366 S.W.2d 786 (Tex.Cr.App.1963); Cooper v. State, 500 S.W.2d 837 (Tex.Cr. App.1973). See also 1 Branch’s Ann.P.C., 2nd ed., § 697, p. 679.

Nevertheless, it has been held that in alleging prior convictions for enhancement definiteness and certainty are required in the State’s pleadings. Papageorge v. State, 157 Tex.Cr.R. 119, 246 S.W.2d 880 (1952). This is so because an accused is entitled to proper notice of any prior conviction alleged for enhancement of punishment. Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697 (1959). In Morman v. State, 127 Tex.Cr.R. 264, 75 S.W.2d 886 (1934), this court wrote:

“The accused is entitled to a description of the judgment of former conviction that will enable him to find the record and make preparation for a trial of the question whether he is the convict named therein.”

In Childress v. State, 134 Tex.Cr.R. 504,116 S.W.2d 396 (1938), it was stated:

“. . . It is true that the appellant has the right to be advised by averments in the indictment as to the records of the former convictions, and also the right to be guarded against the hazard of the use by the state on a subsequent occasion of a conviction that has theretofore been used to enhance the penalty. Childress v. State, 131 Tex.Cr.R. 487, 100 S.W.2d 102

In Palmer v. State, 128 Tex.Cr.R. 293, 81 S.W.2d 76, 79 (1934), this court quoted from 12 Tex.Jur.2d 795 and stated:

“This averment is necessary in order to give the accused notice that a greater penalty is to be sought than for a first offense, and to enable him to take issue thereon, and if possible show there is a mistake in identity, or that there was no final former conviction or the like.”

It has been frequently held that in alleging a prior conviction for enhancement of punishment the allegations should include the court in which the conviction was obtained, the time of the conviction and the nature of the offense. Neece v. State, 62 Tex.Cr.R. 378, 137 S.W. 919 (1911); Morman v. State, supra; Palmer v. State, supra ; Childress v. State, 131 Tex.Cr.R. 487, 100 S.W.2d 102 (1936); Walker v. State, 138 Tex.Cr.R. 230, 135 S.W.2d 498 (1940).

In Arce v. State, 552 S.W.2d 163 (Tex.Cr. App.1977); Prodon v. State, 555 S.W.2d 451 (Tex.Cr.App.1977); and Teamer v. State, 557 S.W .2d 110 (Tex.Cr .App.1977), the indictments, like the one in the instant case, fail to allege the district courts in which the prior convictions occurred. In Arce, Pro-don and Teamer there were no motions to quash and in each case it was held that the failure to so allege could not be raised for the first time on appeal as fundamental error.

In the instant case there was a motion to quash the enhancement portion of the indictment since the district courts in which the prior felony convictions occurred were not named or designated.

The enhancement allegations do describe the prior convictions as being for felony offenses, giving the nature of the offense, the case numbers of the causes in Harris County in which the convictions were obtained and the dates of such convictions. The allegations, in their own way, also state that each offense was committed after a final conviction in the preceding case. The allegations do not, however, mention the name or designation of any court. The State argues that since only the district court has jurisdiction of felonies, Article V, § 8, Texas Constitution, and all the prior convictions were alleged to have occurred in Harris County the appellant would have no difficulty in ascertaining the records of the prior convictions, particularly in light of the cause numbers given. The State calls attention to Article 199(11), V.A.C.S., as amended in 1963 which provides in part:

“In all suits, actions, or proceedings in said Courts, it shall be sufficient for the address or designation to be merely ‘District Court of Harris County.’ ”

It appears to be the State’s argument that while the above designation was not even alleged the same was clearly inferable from the allegations made.

The State notes that although appellant’s counsel claimed at the time of the motion to quash he had been unable to locate the records of the prior convictions, he offered no proof of the same, and that the colloquy at the bench on an earlier motion to quash on another basis clearly indicated appellant personally was familiar with the records.

The State points out that such colloquy reveals appellant, acting as co-counsel with permission of the court, argued to the court that the prior convictions alleged had been previously used for enhancement of punishment in another case, giving the date of such trial, etc. The prosecutor responded that only one of the prior convictions alleged (Cause No. 86,566 — breaking and entering a motor vehicle) had been previously used in another cause, but the conviction there obtained had to be set aside and that prior conviction thus had not been successfully used for enhancement and was available in the instant case. No proof or further argument was offered, and the court overruled the motion to quash then made.

We conclude, although not without difficulty, that the enhancement of punishment allegations are sufficient. The prior convictions were described as felonies, the exact nature of the offenses was given, the cause numbers in which the convictions were obtained and the dates of such convictions were set forth. Although the courts were not named, it was alleged that all convictions occurred in Harris County, and that each felony offense was committed after a final conviction in the preceding case. Since only district courts have jurisdiction of felony cases, the convictions alleged were all in the same county with the cause numbers stated, and given the particular circumstances of this case, the trial court did not err in overruling the motion to quash the enhancement portion of the indictment.

We conclude the appellant was not misled and that under the circumstances was given adequate notice by the allegations in the indictment.

Nothing in this holding, however, should be construed as the approval by this court of this type of pleading. The drafter of the enhancement allegations, although not required to use the same particularity in regards to a primary offense, should keep in mind that definiteness and certainty are required and the accused is always entitled to proper notice of any prior conviction alleged for enhancement of punishment, etc., as previously discussed.

Far too often it appears the drafter of the indictment, a member of the prosecution’s team, concerns himself with lightening the prosecution’s burden and alleges as little as possible to avoid variances between the allegations and the proof, clerical errors and other things which might affect effective prosecution. While these are legitimate concerns of the State, the drafter should never overlook the primary purpose of allegations relating to enhancement of punishment.

III.

Next, appellant contends the trial court erred in not granting his motion for a mistrial upon discovery of jury misconduct, to-wit: the taking of notes and the discussing of the same during deliberations.

On the third morning during the guilt stage of the trial the court informed the jury that it had come to the court’s attention that some jurors may have been taking notes. They were instructed not to take any further notes, if notes had been taken, that written notes were not to be used in the jury’s deliberations nor disclosed to other members of the jury. The appellant asked to interrogate the jurors concerning note-taking, but the court denied such interrogation until the conclusion of the trial. When the trial ended, the appellant moved for a mistrial on the basis of the note-taking and it was denied. The jurors were then interrogated. Nine jurors stated they had not taken any notes and that notes were not used in their deliberations. The foreman Dutton and jurors White and Ernst testified they had taken notes until such time as the court had instructed them not to do so. Dutton, who had read his notes from the first two days of trial on the third morning, handed his notes to the bailiff following the court’s instructions. White and Ernst testified they ceased note-taking upon the court’s instructions, put them away and did not read them at all. The three note-taking jurors testified the notes were not referred to or used in any way during jury deliberations.

In Watkins v. State, 216 Tenn. 545, 393 S.W.2d 141, 14 A.L.R.3d 818, the Tennessee Supreme Court indicated that at common law there was a general rule that jurors were not allowed to take any writing not under seal to the jury room for the reason that most jurors were unlettered men. The Court reasoned that out of this general rule came the rule that jurors were not allowed to take notes during the trial. However, in Buzard, Jury Note-Taking in Criminal Trials, 42 J.Crim.L. & Crim. 490 (1951), the author concludes that a common law origin cannot be perceived from the cases (footnote # 10, p. 491).

Nonetheless, there is a wide difference of opinion among the authorities in this country as to the propriety of jurors taking notes and their subsequent use in the jury room. 154 A.L.R. 876; 14 A.L.R.3d 831; 75 Am.Jur.2d, § 934, p. 795; 89 C.J.S. Trial § 456, p. 80; Buzard, Jury Note-Taking in Criminal Cases, 42 J.Crim.L. & Crim. 490-493 (1952); Note, 37 N.Car.L.Rev. 518 (1959); Note, 18 U.Pitt.L.Rev. 800 (1957); Petroff, The Practice of Jury Note Taking —Misconduct, Right, or Privilege?, 18 Okla. L.Rev. 125 (1965); 32 J.Am.Jud.Soc’y. 57-58 (1948).

In State v. Ledet, 298 So.2d 761 (La.1974), the Louisiana Supreme Court, speaking through Justice Albert Tate, observed that note-taking by jurors and reference to them during jury deliberations is either permissible or expressly authorized by statute or court rule in at least twenty-six American state jurisdictions and in the federal courts. It was noted that the practice was prohibited in only four states, including Louisiana, although most of the decisions in these states refused to reverse unless prejudice and gross misconduct were clearly shown.

There is substantial body of authority which holds jurors may not take notes of the trial proceedings and a trial judge may forbid them doing so. The reasons behind the prohibition have been stated in several cases. In United States v. Davis, 103 F. 457 (C.C.W.D.Tenn.1900), it was written:

. . It gives the juror taking notes an undue influence in discussing the case when he appeals to his notes to settle conflicts of memory. Without corrupt purpose, his notes may be inaccurate, or meager or careless, and loosely deficient, partial, and altogether incomplete. With a corrupt purpose, they may be false in fact, entered for the purpose of misleading or deceiving his fellows when he comes to appeal to them. There is no protection against such dangers except to forbid the practice. . . . ”

In Cheek v. State, 35 Ind. 492 (1871), the Indiana court observed the taking of notes “was well calculated to divert the attention of the jurors while they were busy, pencil or pen in hand, from the evidence, as it would naturally be progressing while such notes were being made. The juror is to register the evidence, as it is given, on the tablets of his memory, and not otherwise . The jury should not be allowed to take the evidence with them to their room, except in their memory. It can make no difference whether the notes are written by a juror or by someone else. Jurors would be too apt to rely on what might be imperfectly written, and thus make the case turn on a part only of the facts.”

In Thornton v. Weaber, 380 Pa. 590, 112 A.2d 344 (1955), in an action for wrongful death, where the trial judge invited the jurors to take notes, the making of notes was held reversible error. The state Supreme Court asserted that the writing of memoranda by jurors is not encouraged in the courts of Pennsylvania and generally is forbidden because by taking notes a juror emphasizes to himself and perhaps later to other jurors one feature of the case over other equally important features and thus a resulting distorted view may be gained of the whole picture which is before the jury for deliberation. The Court also observed that unless the juror taking notes is a skilled shorthand writer he is most likely to miss what is being said while he is trying to record what has already been heard. The Court added that a further criticism is that a juror hurriedly scribbling notes is apt to divert the attention of the other jurors and possibly also create the impression he is more alert and to be regarded as more informed than the other jurors who have not taken notes.

The Wisconsin Supreme Court has also apparently subscribed to the view that note-taking is improper. In Fischer v. Fischer, 31 Wis.2d 293, 142 N.W.2d 857 (1966), it was said that jurors should not in the ordinary case be permitted to take notes.

For other cases which do not commend the practice of note-taking, see Gipson v. Commonwealth, 133 Ky. 398, 118 S.W. 334 (1909).

Most authorities, however, take the view that the making and use of trial notes by the jury is not misconduct but is proper and may even be desirable where it is unattended by undue consumption of time. 14 A.L. R.3d 831, 834; Goodloe v. United States, 88 App.D.C. 102, 188 F.2d 621 (1950), cert. den. 342 U.S. 819, 72 S.Ct. 35, 96 L.Ed. 619; Toles v. United States, 308 F.2d 590 (9th Cir. 1962), cert. den. 375 U.S. 836, 84 S.Ct. 79,11 L.Ed.2d 66; United States v. Carlisi, 32 F.Supp. 479 (D.C.N.Y.1940); United States v. Campbell, 138 F.Supp. 344 (N.D. Iowa 1956); Watkins v. State, 216 Tenn. 545, 393 S.W.2d 141 (1965). The courts which have held note-taking proper describe it as a legitimate aid to the memory which enables jurors to reach a more equitable verdict, and dismiss contrary considerations as anachronisms from times when few men were literate.

In Davis Die Co. v. Beltzhoover Electric Co., 40 Ohio App. 308, 178 N.E. 418, 419 (1931), the court said:

“It is urged that the notes might be taken incorrectly and thus improperly influence the jurors in their deliberations. Certainly there would be as great danger of error upon the ‘tablets of their memory’ as upon the tablets in their hands. In the days when fewer men could read or write it might have been possible for one who could do so to use these abilities improperly. Today it is hardly likely that such a state of affairs would exist. While the stability of rule and precedent is desirable, it is not so important as to require inflexibility in the presence of changed conditions, indicating the necessity, or at least reason, for adaptation to modern conveniences and practices adopted by men in the conduct of the ordinary affairs of life.”

In United States v. Campbell, supra, the Court wrote:

“In the opinions of some of the appellate courts which disapprove [of] the taking of notes by jurors, the view is expressed that where one or more of the jurors take notes they will in the event of disagreement in the jury room as to the evidence given by a certain witness or witnesses persuade the other members of the jury to accept their version of such testimony even though such version might be erroneous. In the days prior to the advent of court reporting, in the event of disagreement among the jurors as to certain testimony, there would not have been any satisfactory way of verifying what a witness or witnesses did actually testify. Since the advent of court reporting, when jurors get into a disagreement as to certain testimony, they can and do request that the testimony in question be read to them by the reporter.”

In United States v. Chiarella, 184 F.2d 903, 907 (2nd Cir. 1950), the Court, speaking through Judge Learned Hand, said:

“The notion has at times been countenanced that jurors should not be allowed to take notes, on the theory that they take on an undue importance when the jury deliberates. . . . The supposed dangers appear to us far-fetched, if not imaginary; but even if we are wrong, it has never been suggested that the judge must permit the practice; the question has always been whether he must forbid it. Moreover, it is at most a matter of discretion.”

The American Bar Association Standards for Criminal Justice Relating to Trial by Jury approves the taking and use of notes by jurors. Standard 4.2 provides:

“Jurors may take notes regarding the evidence presented to them and keep these notes with them when they retire for their deliberations. Such notes should be treated as confidential between the juror making them and his fellow jurors.”

Under the Uniform Rules of Criminal Procedure, if note-taking by the jurors will likely assist them in their deliberations, the court may permit them to take notes under appropriate conditions and admonitions. The notes may be disclosed only to fellow jurors during deliberations. Unif.R. Crim.P., Rule 513(e).

It clearly appears that in the absence of statute the majority view in this country is that the matter of note-taking by jurors and their subsequent use during deliberations is left to the sound discretion of the trial court. Wharton’s Criminal Law and Procedure, Vol. V, § 2112, p. 295; 89 C.J.S. Trial § 456, p. 80; State v. Jackson, 201 Kan. 795, 443 P.2d 279 (1968).

Strangely enough, it does not appear that this court has passed on the specific question of the propriety of the taking of notes by jurors in a criminal case in this state. This may be due to the fact that most criminal trial judges do not permit such note-taking. Suprisingly, the Supreme Court of Texas has not passed on the question either in civil cases. There are, however, several opinions by the various Courts of Civil Appeals, but they are not entirely harmonious and have not definitely answered the question but have found the practice harmless when the notes pertained to undisputed issues or where the notes were not held out to the other jurors as evidence. Brooks v. Temple Lumber Co., 105 S.W.2d 386 (Tex.Civ.App. — Beaumont, 1937 — no writ), some of the jurors, during their deliberations, went into the courtroom and made notes from the figures placed on the blackboard by one of the attorneys during jury argument. The jury used these figures in returning its verdict. Without discussing the propriety of note-taking, the court on appeal held that action of jurors was not such misconduct so as to warrant a new trial where there was no conflict in the evidence as to such figures and under the circumstances the appellants in the cases were not injured by the conduct of the jurors.

In Commercial Music Co. v. Klag, 288 S.W.2d 168 (Tex.Civ.App. — San Antonio, 1955 — no writ), it was held not to be reversible error for the attorney for the appellee to hand to each juror a pencil and paper pad and suggest that the jurors make notes of this argument as they might desire and carry them into the jury room when they retired to deliberate. While the case was reversed for other reasons, the court said it would have been better for the attorney to have requested that the court have some court official furnish the supplies to the jury so that the attorney would not have been placed in the attitude of attempting to incur favor with the jury. However, the court added the mere fact the jurors were provided with pencils and pads so they might make notes did not constitute reversible error. Here again, the propriety of note-taking was not discussed, the court seeking only to answer the contention that the attorney’s action constituted reversible error.

In Guest v. American Petrofina Co., 485 S.W.2d 926 (Tex.Civ.App. — Texarkana, 1972), the court frowned upon the taking of notes although the judgment was affirmed. There the court wrote:

“. . . It was not conclusively shown that the use of the notes affected the verdict of the jury, but we quickly announce the admonition that the taking of notes into the jury room is to be frowned upon by the courts until such time as the Supreme Court prescribes a rule that all jurors may take notes during the trial and use them during their deliberations^ As the testimony reflects in this case, only one person took notes, and it would be easy for such juror to influence the decision of other jurors if they thought his notes reflected a better recollection of the facts as they came from the witness stand than their personal memories.”

A somewhat different view was taken in Manges v. Willoughby, 505 S.W.2d 379 (Tex.Civ.App. — San Antonio, 1974, writ ref’d. n. r. e.). There the court, speaking through then Chief Justice Barrow, found no prohibition in the Texas Rules of Civil Procedure against note-taking by jurors and no Texas authority holding such practice erroneous or even condemning it. The view was taken that such practice might be desirable in an accounting or other complicated suits, citing 89 C.J.S. Trial § 456. Trial judges were cautioned, however, that if they observe note-taking by jurors the jurors should be instructed that such notes are not evidence and if the jury should disagree as to the testimony of any witness the foreman may apply to the court and have the court reporter’s notes read to them.

In the Manges case the court noted the trial court had found the notes taken on the item of damages were not held out as evidence and there was no showing that the notes did not correctly reflect the testimony. Under these circumstances, the court held that action of taking notes resulted at most in harmless error. See Texas Rules of Civil Procedure, 226a, 287 and 327.

In English v. American Foreign Ins. Co., 529 S.W.2d 810 (Tex.Civ.App. — Texarkana, 1975), the court that had earlier frowned upon the taking of jury notes held that the use of a juror’s written notes as evidence or as authority on their face as being a true representation of a portion of the testimony in order to persuade the other jurors as to a disputed issue would seem to violate the spirit, if not the letter, of Tex.R.Civ., p. 281 (which prescribes the material which may be taken into the jury room during deliberations) and of Tex.R.Civ., p. 287 (providing an exclusive method of making a witness’ testimony available to the jurors in case they disagree in their recollection of such testimony).

Nevertheless, the court concluded the record failed to show the use of notes resulted in probable injury. They were read and referred to only to determine the exact date of the plaintiff’s hospitalizations and evidence as to such was undisputed.

In Twin City Fire Ins. Co. v. Gibson, 488 S.W.2d 565 (Tex.Civ.App. — Amarillo, 1972, err. ref’d., n. r. e.), it was claimed by appellant the jurors took notes during oral argument of suggested answers to special issues made by appellee’s counsel and took them to the jury room. In disposing of the contention, the court wrote:

. The taking of notes during the trial of a cause by a juror and the subsequent use of such notes should be attacked by a motion for mistrial based upon jury misconduct. No motion and accompanying evidence was tendered in this case. Further, a litigant in order to avail himself of the benefit of such motion must show by competent proof that such conduct on the part of the jury was prejudicial and harmful. See: 3 McDonald, Texas Civil Practice, §§ 14:15 and 14:16.1.”

The decision leaves the inference that jury note-taking is improper but such action was not properly attacked. For other cases holding that the lack of a timely objection waives any error resulting from jury note-taking, see State v. Trent, 234 S.C. 26, 106 S.E.2d 527 (1959). See also Annotation in 154 A.L.R. at p. 885.

After due consideration of the facts in the instant case, we cannot conclude that this is the proper vehicle to lay down a hard and fast rule in criminal cases as to the propriety of jury note-taking and subsequent use in deliberations.

Assuming that note-taking is improper, reversible error is not here indicated. It has been held that the taking of notes by some members of a jury does not amount to such jury misconduct as to warrant a new trial where the practice is discontinued upon admonishment by the court. Batterson v. State, 63 Ind. 531 (1878); 154 A.L.R. 878, 884, Anno., “Taking of Notes by Jury.” This is what occurred in the instant case. We are not thus confronted with a situation where, over the objection of the defense, jurors persisted in taking notes after the court told them not to do so. See Cheek v. State, 35 Ind. 492 (1871). Further, reversal need not result where it is not shown the offending juror used his notes during the jury’s deliberations or otherwise made their existence known to his fellow jurors. Miller v. Commonwealth, 175 Ky. 241, 194 S.W. 320 (1917); State v. Joseph, 45 La.Ann. 903, 12 So. 934 (1893); Fisher v. Strader, 399 Pa. 222, 160 A.2d 203 (1960).

Still further, it has been consistently held that the taking of notes by a juror is not a ground for a new trial where the accused was not injured thereby. See 24 C.J.S. Crim.Law § 1449(5), p. 113; Brooks v. Temple Lumber Co., supra; Guest v. American Petrofina Co., supra; Manges v. Willoughby, supra; English v. American Foreign Ins. Co., supra; Twin City Fire Ins. Co. v. Gibson, supra; State v. Jackson, 201 Kan. 795, 443 P.2d 279 (1968), cert. den. 394 U.S. 908, 89 S.Ct. 1019, 22 L.Ed.2d 219; State v. Keehn, 85 Kan. 765, 118 P. 851 (1911); Hooks v. State, 45 Ala.App. 221, 228 So.2d 833 (Ala.Crim.App.1969); Gann v. State, 330 N.E.2d 88 (Ind.1975).

In the instant case the taking of notes by three jurors was discontinued upon admonishment by the court. The notes were not referred to or used in the jury’s deliberations. As soon as the trial was concluded, the trial judge permitted interrogation of the jurors concerning the note-taking, and the notes taken were made part of the record and the same have been examined by this court. We cannot conclude there has been any showing that the appellant was harmed by such note-taking. The trial court did not err in overruling the mistrial motion. Appellant’s contention is overruled.

The judgment is affirmed.

      . While it is better practice to also allege the style of the case in which the prior judgment of conviction was entered, the failure to so allege does not render the pleading fatally defective. Riley v. State, 162 Tex.Cr.R. 367, 285 S.W.2d 229 (1955); Crume v. State, 165 Tex.Cr.R. 555, 309 S.W.2d 241 (1958). In Plessinger v. State, 536 S.W.2d 380 (Tex.Cr.App.1976), the indictment alleged a prior Arizona conviction for enhancement of punishment, but in alleging the style of the case, the indictment stated the prior conviction was styled “The State of Texas vs. Delbert Lorrain Plessinger, Jr." Proof, of course, showed the style was “State of Arizona vs. Delbert Lorrain Plessinger, Jr.” There was no objection as to the ground of error later raised on appeal as to the defect in the indictment. In Plessinger this court wrote:
      “While the carelessness here involved is not to be condoned, we are unable to say that appellant has shown surprise or that he was misled to his prejudice. See Burton v. State, 493 S.W.2d 837 (Tex.Civ.App.1973); Loud v. State, 499 S.W.2d 295 (Tex.Cr.App.1973).”
      To the extent that Corley v. State, 158 Tex. Cr.R. 207, 254 S.W.2d 394 (1953), was in conflict with the holding it was overruled. It must be kept in mind, however, that Plessinger and Corley involved variances between the allegations and the proof and did not concern the sufficiency of the allegations as to the prior convictions standing alone.
      Further, it should be noted that it is not necessary to allege the dates of the commission of the prior offenses (resulting in convictions) which are used for enhancement of punishment. Loud v. State, supra; Hernandez v. State, 530 S.W.2d 563 (Tex.Cr.App.1975). Still further, it is not necessary to allege the dates on which the convictions became final so long as the proof at trial shows the necessary succession of offenses and final convictions. Burton v. State, supra; Kessler v. State, 514 S.W.2d 260 (Tex.Cr.App.1974). [Where a prior conviction is final on its face, the burden of showing the same not to be final is on the defendant. Ashley v. State, 527 S.W.2d 302 (Tex.Cr.App. 1975).] And it is also noted that allegations that each offense was committed after a final conviction in the preceding case is sufficient for enhancement purposes. Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781 (1956); Hernandez v. State, supra; Branch’s Ann.P.C., 3rd Ed., § 12.42, p. 598 (1974).

      . Arce, Prodon and Teamer, as well as the instant appeal, are all Harris County cases.

      . No ground of error is advanced on this basis.

      . Variance problems can present themselves during a trial where enhancement of punishment is sought. In Goodale v. State, 146 Tex. Cr.R. 568, 177 S.W.2d 211 (1944), it was held reversible error where there was a variance in the date of the prior conviction alleged and the proof of the date of such conviction. Cf., however, Baity v. State, 455 S.W.2d 305 (Tex.Cr. App.1970). It has also been held that there is a fatal variance where one cause number of a prior conviction is alleged and another cause number is proved. Green v. State, 153 Tex. Cr.R. 273, 219 S.W.2d 687 (1949). Cf., however, McGill v. United States, 10 F.2d 972 (5th Cir. 1926). Further, where there is a variance in the name and designation of the court in which the prior conviction was alleged to have occurred and the proof, a reversal will result. Morman v. State, 127 Tex.Cr.R. 264, 75 S.W.2d 886 (1934); Corley v. State, 158 Tex.Cr.R. 207, 254 S.W.2d 394 (1953); Elton v. State, 158 Tex.Cr.R. 11, 252 S.W.2d 700 (1952). See and cf. Bray v. State, 531 S.W.2d 633 (Tex.Cr.App. 1976), and Plessinger v. State, 536 S.W.2d 380 (Tex.Cr.App. 1976) (which overruled Corley to the extent of any conflict though Plessinger involved a variance in the style of the case alleged concerning the prior conviction and the proof).

      . At least nine states have enacted statutes which expressly authorize jurors to take notes in criminal cases. Cal.Pen.Code, § 1137; Idaho Code Ann., § 19-2203 (1947); Iowa Code, § 784.1 (1954); Minn.Stat.Ann., § 631.10 (1947); Mont.Rev.Codes Ann., § 94-7303 (1947); Nev.Rev.Stat., § 175.390 (1957); N.Y. Code Crim.Proc., § 426; N.D.Rev.Code, § 29-2204 (1943); Utah Code Ann., § 77-32-2 (1953). Louisiana has a statute that prohibits the use of juror’s notes. La.C.Cr.P., Article 793. See State v. Ledet, 298 So.2d 761 (La. 1974). In Georgia it appears jurors are free to take notes during the trial more or less as a matter of right, even in the absence of a statute. See Thomas v. State, 90 Ga. 437, 16 S.E. 94 (1892); Lilly v. Griffin, 71 Ga. 535 (1883). A later case from the same jurisdiction seems, however, to adopt the position that it is discretionary with the trial court. Vaughn v. State, 17 Ga.App. 268, 86 S.E. 461 (1915).
      In State v. Ledet, supra, the court held that the statutory policy of R.S. 15:470 (prohibiting impeachment of verdict by a juror) prevails over C.C.P., Article 793 (jurors should not take notes). The decision in State v. Fortenberry, 307 So.2d 296 (La. 1975), adhered to the decision in Ledet regarding policy.
      In Ledet juror Gros took notes, referred to them occasionally to verify his own memory and in one or two instances used the notes in deliberation to verify other jurors’ recollection of testimony. After noting that discovery of a violation of the statute after the verdict was not necessarily prejudicial and reversible error, the court wrote:
      “. . . Nor are we here faced with a situation where the state encouraged an open violation, nor where the trial court refused over defense objection to prohibit compliance with this legislative direction, so that reversal is the only way to enforce this legislative mandate.”

      . See Thornton v. Weaber, 380 Pa. 590, 112 A.2d 344 (1955); Cheek v. State, 35 Ind. 492 (1871); Batterson v. State, 63 Ind. 531 (1878); Fischer v. Fischer, 31 Wis.2d 293, 142 N.W.2d 857 (1966).

      . It has been also suggested that a juror may make copious notes at the commencement of the trial as the plaintiff or State presents the case, but as the novelty of note-taking wears off decreases his note-taking activities or ceases note-taking at all, resulting in notes taken into deliberations that are top heavy in favor of one party to the lawsuit.

      . For later Indiana cases holding note-taking discretionary with the trial court, see Dudley v. State, 263 N.E.2d 161, 164 (Ind.1970); Gann v. State, 330 N.E.2d 88 (Ind. 1975).

      . In Denson v. Stanley, 17 Ala.App. 198, 84 So. 770 (1919), the court held that the taking of notes by a juror was not objectionable so long as it did not cause delay or undue consumption of time. See also 89 C.J.S. Trial, § 456, p. 80.

      . Those who argue in favor of the taking and use of juror’s notes contend that judges and lawyers take notes so why shouldn’t jurors? Dudley v. State, 263 N.E.2d 161 (Ind.1970); Gann v. State, 330 N.E.2d 88 (Ind.1975); State v. Ledet, supra, at p. 765, footnote 7. This argument overlooks the fact that judges and lawyers are legally trained when most jurors are not, that they are familiar with the elements of the criminal offense and evidence which may bear on these issues in a criminal case and their notes are taken to assist them in their roles in the judicial framework, which does not include being fact finders when a jury has been impaneled. When a dispute of evidence occurs, they are less likely to rely upon their notes than the official record made by the court reporter.


source: Caselaw Access Project

author: ONION, Presiding Judge. DALLY, Judge,

license: Public Domain

text:
    Anthony G. JORDAN, Appellant, v. The STATE of Texas, Appellee.
    No. 55450.
    Court of Criminal Appeals of Texas.
    Oct. 11, 1978.

      Faires P. Wade, Corpus Christi, for appellant.
    Mike Westergren, County Atty. and Andrew J. Lehman, Asst. County Atty., Corpus Christi, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction of causing bodily injury. Appellant waived his right to a jury trial. The court conducted a hearing, found appellant guilty and sentenced him to one (1) year’s probation.

Appellant’s sole ground of error is that the trial court erred in not appointing counsel to defend appellant at his trial. It is the State’s contention, however, that appellant knowingly and intelligently waived this right.

It is well settled that criminal defendants in misdemeanor cases are entitled to counsel if there exists a possibility that imprisonment may be imposed. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Ex parte Herrin, 537 S.W.2d 33 (Tex.Cr.App.1976); Walker v. State, 486 S.W.2d 330 (Tex.Cr.App.1972). However, an accused may waive his right to counsel if such waiver is made voluntarily with knowledge of the consequences there of. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Barbour v. State, 551 S.W.2d 371 (Tex.Cr.App.1977); Thomas v. State, 550 S.W.2d 64 (Tex.Cr. App.1977). To assure protection of so fundamental a right, courts indulge every reasonable presumption against waiver of counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Barbour v. State, supra; Thomas v. State, supra. To this extent, this court has held that the record must clearly show that the accused voluntarily, knowingly and intelligently waived his right to counsel in order to assert his right to represent himself. Thomas v. State, supra; Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976). In Faretta v. California, supra, the Supreme Court held that the record should reflect that the defendant waived his right to counsel only after being made aware of the advantages and disadvantages of self-representation so that it is clear that he “knows what he is doing and his choice is made with eyes open.” 425 U.S at 835, 95 S.Ct. at 2541.

The only evidence reflected in the record concerning appellant’s waiver of right to counsel and decision to represent himself at trial is contained in a hearing on defendant’s motion for new trial. In that hearing, several references to a waiver were made. On cross-examination of defendant, the State elicited the following testimony:

“Q Have you ever had any problems before with the law?
“A That’s correct.
“Q Did you have lawyers at those various times?
“A That’s correct.”

The State urges an application of the rule in Ex parte Ross, 522 S.W.2d 214 (Tex.Cr. App.1975). In that case we held that it is proper to consider such previous experience with criminal proceedings in determining whether waiver of counsel was knowingly and intelligently made. However, in that case, the defendant had had previous experience in misdemeanor trials, during at least one of which he had waived counsel. There is nothing in the record before us to indicate that this appellant had ever before waived representation or that he had done so intelligently in this instance.

In addition to the above testimony, the trial judge made the following statement at the same hearing:

“THE COURT: All right. I would like for the record to reflect also that the Court on the 17th of November asked the defendant whether he wanted an attorney and he said no, he didn’t want an attorney. I believe the record will reflect that.”

We find nothing in the record which reflects that this did in fact occur. If the event was unrecorded, the fact the appellant may have stated he didn’t want an attorney would not alone constitute an affirmative waiver.

We are unable to conclude from the testimony and remarks in the hearing on the motion for new trial that appellant’s waiver was intelligent or that appellant was made aware of the danger and disadvantages of self-representation. As the Supreme Court held in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962):

“. . Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”

The record not being sufficiently developed to show that appellant knowingly and intelligently waived his right to counsel after being made aware of the advantages and disadvantages of self-representation, the judgment is reversed and the cause remanded.

DALLY, Judge,

concurring.

I concur in the result since the punishment assessed was imprisonment for one year. The statement in the majority opinion that, “[i]t is well settled that criminal defendants in misdemeanor cases are entitled to counsel if there exists a possibility that imprisonment may be imposed,” is contrary to the rule in this jurisdiction as well as in many others. See Empy v. State, 571 S.W.2d 526 (No. 55,957, decided 9/20/78); Aldrighetti v. State, 507 S.W.2d 770 (Tex. Cr.App.1974).

In this case there existed more than a possibility of imprisonment. The punishment actually assessed, although probated, was imprisonment for one year. I concur in the result.


author: PHILLIPS, Judge.

text:
    David Michael HOLDER, Appellant, v. The STATE of Texas, Appellee.
    No. 58811.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.
    Rehearing En Banc Denied Nov. 1, 1978.

      George S. Gault, Mineral Wells, court appointed, for appellant.
    Robert J. Glasgow, Dist. Atty. and Robert S. Lee, Asst. Dist. Atty., Stephenville, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a revocation of probation. Appellant was originally convicted for burglary of a building and was assessed a punishment of four years’ imprisonment and a $800.00 fine, probated. On February 6, 1978, the State filed a motion to revoke probation. On March 7, 1978, the State filed an amended motion to revoke probation alleging that the appellant violated State law in that the appellant appeared “in a public place, to-wit: US Highway 180 approximately four (4) miles west of Mineral Wells, Texas under the influence of a substance, to-wit: clear acrylic plastic aerosol spray paint, to the degree that the said David Michael Holder might endanger himself and others.” On the 17th of March, 1978, an order revoking appellant’s probation was entered based on the trial court’s finding that the State’s allegation in its amended motion to revoke probation was true.

Appellant’s single ground of error alleges that the evidence adduced by the State in support of its motion to revoke probation was insufficient, as a matter of law, to sustain the trial court’s finding that the appellant was indeed under the “influence of a substance, to-wit: clear acrylic plastic aerosol spray paint, . . ..”

The amended motion to revoke probation upon which appellant and the State proceeded in the instant cause alleged that the appellant violated that condition of his probation which required that he not violate the “laws of this state . ..” The amended motion to revoke probation alleged the offense of public intoxication. See V.T.C.A., Penal Code, Section 42.08. The arresting police officer testified at the hearing that he had experience with over a thousand individuals who were intoxicated by alcohol or drugs. He further testified that he observed a vehicle on Highway 180 weaving and crossing the center stripe and driving erratically. He proceeded to signal the vehicle to stop. The driver’s response was slow, sharp, and jerky. The appellant was unsteady as he exited the vehicle and approached the police officer. He appeared unkempt, glassy-eyed, and had a strong chemical smell about him like glue or thinner. Appellant’s speech was slurred and he appeared “like he was in a fog” or “distant.” The police officer observed a roll of baggies, a can of spray acrylic lacquer, and a single baggie with the lacquer substance within it on the transmission hump beside the driver’s position. He also observed more baggies and another can of similar substance in the rear of the vehicle. Finally, he testified that he was of the opinion, based on his experience and observations, that the appellant was intoxicated and to such a degree that he was a danger to himself and others. This testimony clearly establishes the violation of V.T.C.A., Penal Code, Section 42.08. See Scamardo v. State, Tex.Cr.App., 517 S.W.2d 293. Appellant cites Malone v. State, 135 Tex.Cr.R. 169, 117 S.W.2d 779; Daulton v. State, 155 Tex.Cr.R. 335, 235 S.W.2d 165; and Schubach v. State, 170 Tex.Cr.R. 276, 340 S.W.2d 42, for the proposition that descriptive aver-ments in the allegation of an offense must be proven as charged.

Were we to conclude that the State was obliged to prove, by a preponderance of the evidence, that appellant was indeed intoxicated under the precise substance alleged, i. e., clear acrylic plastic aerosol paint, we consider the evidence in this record to be sufficient in establishing that descriptive allegation. As noted previously, the arresting officer noticed a strong chemical smell about the appellant like glue or thinner and observed a roll of baggies, a can of spray acrylic lacquer, and a single baggie with the lacquer substance within it on the transmission hump beside the driver’s position. The arresting officer made similar observations in the rear seat area. Thus, the State’s proof that the appellant “smelled like airplane glue or paint thinner” and the close proximity of the can of acrylic lacquer and the baggie with the acrylic substance within it to the driver’s position in the automobile driven by appellant is sufficient to establish that the acrylic lacquer paint was the cause of appellant’s public intoxication.

Appellant’s single ground of error is overruled. There bfeing no abuse of discretion in revoking appellant’s probation, the judgment is affirmed.

      . “(a) An individual commits an offense if he appears in a public place under the influence of alcohol or any other substance, to the degree that he may endanger himself or another.
      (b)A peace officer or magistrate may release from custody an individual arrested under this section if he believes imprisonment is unnecessary for the protection of the individual or others.
      (c) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes by a licensed physician.
      (d) An offense under this section is a Class C misdemeanor.”

      . The arresting officer’s testimony shows the following:
      A As I recall in his appearance, it was unkempt, he had his shirttail out, his eyes were glassy, there was a strong chemical smell about him which to me it smelled like airplane glue or paint thinner, something like that.
      ******
      Q Did you look inside the car?
      A Yes, sir. I did. I had him wait at the rear of his vehicle and I stepped to the car and shined my light through the driver’s window. I first observed what appeared to me to be a baggie with a substance inside of it.
      Q Did you inspect that baggie?
      A Yes, sir. I did. 1 opened the car door and reached in. As it turned out, there was a roll of baggies, these plastic bags, alligator bags I guess is what they are called. As I was looking at those, I observed a can of spray can substance, acrylic lacquer laying next to the baggies under the seat. As I was looking through the vehicle, I found on the transmission hump in the front floorboard, a baggie with some of this same acrylic substance sprayed into it, it was still wet.
      Q Did it give off an odor?
      A Yes, sir. It did.
      On cross-examination:
      Q Well, you have testified that you don’t know what chemicals are in this spray paint, but you have a suspicion that it does contain some intoxicating type chemicals or something that could impair the judgment or affect somebody?
      A Yes, sir. I base my opinion on the defendant’s behavior at the time of the arrest.
      Q Well, do you know for a certainty that his behavior was a direct result of the use of this spray paint?
      A I have no chemical proof that nothing— nothing like a breath test or something like that I can offer for that, but I believe it is — it is my opinion, yes.
      Q You don’t have anything to base it on because you don’t know what chemical the spray paint contains or whether or not for sure it could produce an intoxicating effect?
      A I can’t say whether or not these chemicals produce an intoxicating effect, no, sir.
      Q So it’s possible this clear acrylic plastic paint did not bring about an intoxicating effect?
      A Yes, sir. I guess that’s possible.
      Q You can’t say with any degree of probability that it did, based on your knowledge? A Based on my opinion alone, I believe that that’s what caused the intoxication, but I cannot substantiate that other than by my opinion.
      On re-direct:
      Q I believe you said you didn’t know for sure if the acrylic would induce an intoxicated state, but in your opinion, was he in an intoxicated state?
      A Yes, sir. I believe that he was.
      Q Sufficient enough to endanger himself?
      A Yes, sir. I believe so.


author: ONION, Presiding Judge. PHILLIPS, Judge, DALLY, Judge,

text:
    Ex parte Richard GROVES.
    No. 58945.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 4, 1978.

      Roy A. Davis, Irving, for appellant.
    Tim Curry, Dist. Atty., and Howard M. Fender, Asst. Dist. Atty., Fort Worth, for the State.
   OPINION

EN BANC.

ONION, Presiding Judge.

Richard Groves was indicted by a Tarrant County grand jury for rape of a child, a violation of V.T.C.A., Penal Code, Sec. 21.-09. That statute, literally read, makes it a second degree felony for a person to have sexual intercourse with a female not his wife and younger than 17 years. The term “sexual intercourse” is defined by V.T.C.A., Penal Code, Sec. 21.01(3), to mean “any penetration of the female sex organ by the male sex organ.”

Groves was subsequently tried in the Criminal District Court No. 3 of Tarrant County. There, a jury found him guilty as charged and assessed his punishment at 15 years’ imprisonment in the Department of Corrections. The trial judge entered judgment in accordance with the jury’s verdict on June 7, 1978.

On June 12, 1978, Groves filed a petition for writ of habeas corpus in the trial court, contending that his conviction was unconstitutional and void. He cited as authority for his contention the decision of the United States Court of Appeals for First Circuit in Meloon v. Helgemoe, 564 F.2d 602 (1st Cir.1977), which held the New Hampshire crime of “statutory rape” unconstitutional on the ground that it denied equal protection in violation of the Fourteenth Amendment to the United States Constitution. Noting that the United States Supreme Court had denied certiorari in Helgemoe v. Meloon, - U.S. -, 98 S.Ct. 2858, 56 L.Ed.2d 793 (1978), and inferring that the New Hampshire statute is similar to Sec. 21.09, he prayed that he be discharged from further confinement by virtue of his conviction.

On June 12,1978, a writ of habeas corpus issued on order of the trial judge to the Honorable Lon Evans, Sheriff of Tarrant County, who held Groves in custody. The sheriff filed a response, and a hearing was held on June 13, 1978. After the hearing the trial judge entered an order denying relief, and Groves gave notice of appeal. The case is thus before us as a habeas corpus appeal pursuant to Art. 44.34, Vernon’s Ann.C.C.P. See Ex parte Mayes, 538 S.W.2d 637 (Tex.Cr.App.1976); Ex parte Weston, 556 S.W.2d 347 (Tex.Cr.App.1977).

I.

Habeas corpus is an extraordinary remedy; and, ordinarily, neither a trial court nor this Court, either in the exercise of our original or appellate jurisdiction, should entertain an application for writ of habeas corpus where there is an adequate remedy at law. See the cases cited in annotations 6-15, Art. 11.01, Vernon’s Ann.C. C.P. Of course, Groves has such a remedy — an appeal of his conviction. Moreover, we have consistently held that habeas corpus will not lie as a substitute for an appeal. See the cases cited in annotations 16-19, Art. 11.01, supra. However, these rules are not absolute. In Ex parte Becker, 459 S.W.2d 442 (Tex.Cr.App.1970), we entertained a habeas corpus appeal where a defendant challenged the validity of his indictment, contending that the grand jury which returned it had been illegally organized and was void. Because the challenged grand jury was then in session and returning indictments, we noted that a prompt determination as to the legality of the grand jury was in order. See also Ex parte Matthews, 488 S.W.2d 434 (Tex.Cr. App.1973).

There appears to be some concern among the bench, bar, and law enforcement officers of this state as to what effect, if any, the First Circuit’s decision in Meloon has upon the validity of our rape of a child statute, Sec. 21.09, supra. In view of this concern and because it is contended that Sec. 21.09 violates the Equal Protection Clause of the Fourteenth Amendment, we believe a prompt decision is necessary; and, we will entertain this habeas corpus appeal. We note that otherwise it might be several years before the appeal reaches this court and is finally submitted.

II.

Any concern as to the effect of Meloon should be diminished by the last full paragraph of that opinion. There the Court concluded:

“We want to take care to indicate the limited nature of our holding. We have found only one particular statutory rape law to be unconstitutional. We have not reflected on nor do we intend to question the constitutionality of the laws of other states. We express no opinion as to whether on a different record some other statute would pass constitutional scrutiny.”

However, even if Sec. 21.09 were identical (which it is not) to the New Hampshire statute invalidated in Meloon, we are not bound by that decision. Moreover, the denial of certiorari by the United States Supreme Court in that case does not mean that that court agreed with the First Circuit. In Wade v. Mayo, 334 U.S. 672, 680-681, 68 S.Ct. 1270, 1274-1275, 92 L.Ed. 1647 (1947), it is stated:

“. . . Writs of certiorari are matters of grace. Matters relevant to the exercise of our certiorari discretion frequently result in denials of the writ without any consideration of the merits. The constitutional issue may thus have no bearing upon the denial of the writ. . .”

See also Rule 19, Revised Rules of the Supreme Court of the United States, which states some of the considerations governing review on certiorari, and the cases cited in annotation 1, U.S.Sup.Ct. Rule 25, 28 U.S. C.A.

Meloon, then, is no authority for holding Sec. 21.09 unconstitutional. In fact, we have taken a contrary position in a similar situation in Finley v. State, 527 S.W.2d 553 (Tex.Cr.App.1975), where it was contended that V.T.C.A., Penal Code, Sec. 21.02 violated Art. 1, Sec. 3a of the Texas Constitution, commonly known as the Equal Rights Amendment. In rejecting that argument, we stated:

“A contention similar to appellant’s was answered in favor of the constitutionality of the statute in Buchanan v. State, 480 S.W.2d 207 (Tex.Cr.App.1972), appeal dismissed for want of substantial federal question, 409 U.S. 814, 93 S.Ct. 175, 34 L.Ed.2d 71 (1972). Appellant in that case challenged Art. 1147(9), V.A. P.C. on the grounds that it discriminated against men. The statute made any assault by an adult male upon an adult female an aggravated assault, but an assault by an adult woman upon a man or another woman remained a simple assault. This Court found that the purpose of the statute was to prevent serious bodily injuries and that, because of the relative sizes of men and women, the statutory classification was rationally related to the accomplishment of that end.
“Likewise, the object of the rape statute challenged here is designed to accomplish a legitimate state interest. It is a matter of common knowledge that most sexual assaults are perpetrated by men against women. These assaults carry with them the danger of serious bodily injury. The State also has an interest in preventing unwanted pregnancies. Men are protected from assaults, sexual or otherwise, by women by several other provisions of the Penal Code. See, generally, Title 5, V.T.C.A., Penal Code. Furthermore, a unique characteristics test can be applied to justify the statutory classification. Hymen and uterine injury to female rape victims, the possibility of pregnancy, and the physiological difficulty of a woman forcing a man to have sexual intercourse with her all suggest a justification for the sexual distinction embodied in Art. 21.02. Comment, ‘An Overview of the Equal Rights Amendment in Texas,’ 11 Houston L.Rev. 136, 146-150 (1973).
“We note also that almost all of our sister states which have confronted this question recently have reached decisions upholding the constitutionality of their respective rape statutes against equal protection attacks. People v. Gould [188 Colo. 113,] 532 P.2d 953 (Colo.1975); People v. Mackey, 46 Cal.App.3d 755, 120 Cal.Rptr. 157 (1975); Brooks v. State, 24 Md.App. 334, 330 A.2d 670 (1975); State v. Price, 215 Kan. 718, 529 P.2d 85 (1974); People v. Medrano, 24 Ill.App.3d 429, 321 N.E.2d 97 (1974); State v. Kelly, 111 Arte. 181, 526 P.2d 720 (1974); State v. Ewald, 63 Wis.2d 165, 216 N.W.2d 213, 218 (1974); State v. Drake, 219 N.W.2d 492 (Iowa 1974); In re W.E.P., 318 A.2d 286 (D.C.App.1974); cf. Wilson v. State, 288 So.2d 480 (Fla.1974).”

The so-called “statutory rape” laws have been on the books of many states for years. In United States v. Garrett, 521 F.2d 444 (8th Cir. 1975), an attack was made on the Mann Act, 18 U.S.C. Sec. 2421, on the ground that it denied equal protection. That Court stated: “It is rather late in the history of the Mann Act to still be contending for its unconstitutionality.” The Court concluded by saying:

“. . . The statute may be violated by either males or females; it is thus sexually neutral and does not raise questions of an illegal classification. See United States v. Caesar, 368 F.Supp. 328, 333 (E.D.Wis.1973). Compare McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). The fact that the class of possible victims is limited to females does not present defendant with a ground to attack the statute’s constitutionality.”

In United States v. Green, 554 F.2d 372 (9th Cir. 1977), the same argument was made. The Ninth Circuit rejected the argument, relying on United States v. Garrett, supra, and stated: “We adopt Garrett as the law of this circuit. See also United States v. Caesar, 368 F.2d 328 (E.D.Wis.1978), aff'd. 519 F.2d 1405 (C.A.7 1975).”

To paraphrase the Eighth Circuit, we think it a little bit late in the history of “statutory rape” laws to now contend they violate equal protection, Meloon notwithstanding. Moreover, we do not believe that “statutory rape” laws deny equal protection because of the “fact that the class of possible victims is limited to females . . . .”

United States v. Garrett, supra. Furthermore, we do not believe that the Supreme Court decisions in Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); or Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), require a different result. If we be wrong in this regard, then it would appear that the “statutory rape” laws of several states will fall, including an Act of Congress, 18 U.S.C., Sec. 2032, which prohibits the carnal knowledge of a female under 16. Moreover, if the “fact that the class of possible victims is limited to females” in the definition of a criminal offense denies equal protection, then it would appear that many laws, state and federal, which prohibit forcible rape upon females (and not males) must fall as constitutionally invalid.

III.

In Finley v. State, supra, it is stated:

“We do note, however, that the definition of ‘sexual intercourse’ given in Art. 21.01, V.T.C.A., Penal Code, makes it impossible for a woman to be the actual perpetrator of the crime of rape. To this extent, the statute does constrain men and not women. And it is equally obvious that the protections of the statute extend only to women and not to men. The statute thus sets up a classification on the basis of sex and we must determine if that classification is rationally related to the furthering of a legitimate state interest. Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975).”

These statements, however, are dicta, as they were not necessary to the decision in the case. We now specifically disavow the above quoted language. Sec. 21.01(3) merely defines what “sexual intercourse” is; it does not purport to define the “actual perpetrator” of the intercourse. Moreover, although the male sex organ must penetrate the female sex organ in order for sexual intercourse to occur, such penetration may be initiated and that result caused by action of the female as well as the male.

The Code Construction Act, Art. 5429b-2, Sec. 3.01, Vernon’s Ann.Civ.St., provides that, in enacting a statute, it is presumed that compliance with the constitutions of this state and the United States is intended. Further, that section governs the construction of the Penal Code. V.T. C.A., Penal Code, Sec. 1.05(b). Moreover, it is our duty to construe statutes so that the Legislature’s intent of enacting constitutional statutes will be carried out. Consequently, even if it could be said that Sec. 21.09 were unconstitutional on its face, we should construe it in a constitutional manner.

Although not before or considered by us when Finley v. State, supra, was decided, it has now been called to our attention that the Code Construction Act, supra, Sec. 2.02(c) provides that “(w)ords of one gender include the other genders.” Sec. 2.02 applies to the construction of the Penal Code. V.T.C.A., Penal Code, Sec. 1.05(b). Consequently, as, used in Sec. 21.09, the words “female,” “his,” “wife,” and “she” include “male,” “her,” “husband,” and “him.” Therefore, Sec. 21.09, as construed pursuant to the Code Construction Act, also makes it a second degree felony for any person to have “sexual intercourse with a male not her husband and he is younger than 17 years.”

This construction is consistent with V.T. C.A., Penal Code, Sec. 1.05(a), which states:

“The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.”

To “promote justice” necessarily implies the promotion of equal justice. We believe that the Legislature intended to protect both male and female victims of rape; and, we so hold. Under our interpretation there can be no possible violation of equal protection of the laws under Sec. 21.09 on the basis of sex.

The relief prayed for is denied; and, the judgment of the trial court is affirmed.

PHILLIPS, Judge,

concurring.

I agree with Presiding Judge Onion that Section 2.02(c) of our Code Construction Act (Article 5429b-2, V.A.C.S.) operates to defeat the petitioner’s claim that V.T.C.A., Penal Code, Section 21.09 operates to deprive him of the equal protection of the laws on its face. Further, as noted in the Presiding Judge’s opinion, there is nothing to preclude the prosecution of a woman for the same acts.

DALLY, Judge,

dissenting in part and concurring in part.

I dissent to the granting of a writ of habeas corpus. Although I fully agree and concur with the opinion it should be deferred for an appeal. The aberration of the United States Court of Appeals for the 1st Circuit in Meloon v. Helgemoe, 564 F.2d 602 (1st Cir. 1977) should be of little concern to the trial bench of this State.

DOUGLAS and ROBERTS, JJ., join in this opinion.

      . The full text of Sec. 21.09 is as follows:
      “(a) A person commits an offense if he has sexual intercourse with a female not his wife and she is younger than 17 years.
      “(b) It is a defense to prosecution under this section that the female was at the time of the alleged offense 14 years or older and had, prior to the time of the alleged offense, engaged promiscuously in sexual intercourse or deviate sexual intercourse.
      “(c) It is an affirmative defense to prosecution under this section that the actor was not more than two years older than the victim.
      “(d) An offense under this section is a felony of the second degree.”
      The indictment, in pertinent part, alleged that Groves, on or about January 10, 1978, did “. . . intentionally and knowingly have sexual intercourse with C_R_, and at the same time of said intercourse C_ R_was a person younger than 17 years of age and was not the spouse of the said Richard Groves, . .

      . The pertinent part of the New Hampshire statute is as follows:
      “A male who has sexual intercourse with a female not his wife is guilty of a Class A felony if
      ‡ * * ‡ * ⅜
      “(c) the female is . . . less than [15] fifteen years old . . . ”

      . See part III., infra.

      . Sec. 21.02, supra, provides:
      “(a) A person commits an offense if he has sexual intercourse with a female not his wife without the female’s consent.
      “(b) The intercourse is without the female’s consent under one or more of the following circumstances:
      “(1) he compels her to submit or participate by force that overcomes such earnest resistance as might reasonably be expected under the circumstances;
      “(2) he compels her to submit or participate by any threat, communicated by actions, words, or deeds, that would prevent resistance by a woman of ordinary resolution, under the same or similar circumstances, because of a reasonable fear of harm;
      “(3) she has not consented and he knows she is unconscious or physically unable to resist;
      “(4) he knows that as a result of mental disease or defect she is at the time of the intercourse incapable either of appraising the nature of the act or of resisting it;
      “(5) she has not consented and he knows that she is unaware that sexual intercourse is occurring;
      “(6) he knows that she submits or participates because she erroneously believes that he is her husband; or '
      “(7) he has intentionally impaired her power to appraise or control her conduct by administering any substance without her knowledge.
      “(c) An offense under this section is a felony of the second degree.”

      . Art. 1, Sec. 3a, supra, provides as follows: “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.”

      . Some of these cases were discussed in footnote 4 in Meloon, 564 F.2d at 605.

      . As noted in Finley, a woman may be guilty of rape under Texas law. 527 S.W.2d at 555.

      . 18 U.S.C., Sec. 2032, supra, reads as follows:
      “Whoever, within the special maritime and territorial jurisdiction of the United States, carnally knows any female, not his wife, who has not attained the age of sixteen years, shall, for a first offense, be imprisoned not more than fifteen years, and for a subsequent offense, be imprisoned not more than thirty years.”

      .Compare Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), in which three members of the Court thought the penalty of death was not cruel and unusual punishment under certain circumstances in forcible rape cases. 97 S.Ct. at 2870 (Powell, J., concurring in part and dissenting in part), and 97 S.Ct. at 2872 (Burger, C. J., with whom Rehnquist, J., joined, dissenting).


author: ODOM, Judge.

text:
    Billy Eugene SCOTT, Appellant, v. The STATE of Texas, Appellee.
    No. 55943.
    Court of Criminal Appeals of Texas, Panel 1.
    Oct. 11, 1978.

      Lawrence B. Mitchell, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John Tatum, Bob Whaley .and Bob Flynn, Asst. Dist. Attys., Dallas, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for unlawful possession of a firearm by a felon, V.T.C.A., Penal Code Sec. 46.05; punishment, enhanced by proof of two prior felony convictions, was set at life.

In seven grounds of error appellant raises issues challenging the sufficiency of the evidence, the jury instructions, admission of a statement, and denial of his motion to quash the indictment.

Y.T.C.A., Penal Code Sec. 46.05(a) provides:

“A person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives.”

V.T.C.A., Penal Code Sec. 46.01(3) provides:

“ ‘Firearm’ means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include antique or curio firearms that were manufactured prior to 1899 and that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter.”

The indictment alleged, inter alia, that appellant possessed a handgun away from the premises where he lived and that he had been convicted of robbery by assault, a felony involving an act of violence and threatened violence against a person. Appellant contends the evidence is insufficient to show the handgun was not manufactured before 1899, and to show his robbery by assault involved an act of violence or threatened violence against a person.

The handgun possessed by appellant was introduced at trial. The terms of Sec. 46.01 quoted above exclude from the definition of “firearm” those antique or curio firearms manufactured before 1899; it does not automatically exclude all firearms made before that date. The jury was instructed on the law and had the weapon before them. Mere failure of the proof to show the date of manufacture does not render the evidence insufficient.

The records of appellant’s robbery conviction were introduced. Robbery by assault is a felony involving violence or threatened violence against a person as a matter of law. Art. 1408, V.A.P.C. (1925). It was not necessary for the state to present evidence regarding the circumstances of the commission of the offense. Cf. Men a v. State, Tex.Cr.App., 504 S.W.2d 410, 414. Contrast with Tew v. State, Tex.Cr.App., 551 S.W.2d 375.

These grounds of error are, overruled.

The court overruled these objections to the charge to the jury:

“Defendant objects to that part of the charge instructing the jury that robbery by assault is a felony involving an act of violence in that such is a comment on the weight of the evidence and amounts to an instructed verdict on an element of the offense alleged.”
“Defendant objects to the failure of the court to instruct the jury that a finding that both paragraphs two and three are true will result in the court assessing, as required by law, a sentence of life in the Texas Department of Corrections.”

The court’s instruction that robbery by assault is a felony involving an act of violence or threatened violence to a person was not a comment on the weight of the evidence. The instruction was correct in that robbery by assault is such an offense as a matter of law. See the discussion above on the sufficiency of the evidence on this issue, and compare with Mena v. State and Tew v. State, supra.

Appellant acknowledges that his second objection to the charge takes a position contrary to the established law in this jurisdiction. See, Thomas v. State, Tex.Cr.App., 543 S.W.2d 645. We decline appellant’s invitation to reconsider this rule.

Appellant challenges the admission of his statement made to police officers shortly after he was arrested. Appellant was seen firing a pistol in the parking lot of a convenience store. The police were summoned and arrived as appellant fled. He was cornered in a dead end alley and ordered to throw out his gun and come out with his hands up. When he walked out with his hands in the air he was frisked and no weapon was found. The arresting officers asked appellant where his gun was, and he replied it was behind the box in the alley. Appellant was under arrest at this time and had not been given his Miranda warnings. The statement was a direct and responsive answer to the officer’s question. The statement should have been excluded from evidence. Smith v. State, Tex.Cr. App., 507 S.W.2d 779. The error, however, is harmless beyond a reasonable doubt. Two witnesses who observed appellant’s possession of the gun before the officers arrived at the scene so testified at trial, and the gun itself was admitted without objection. The grounds of error are overruled.

Finally, appellant contends his motion to quash the indictment should have been granted. He challenged the sufficiency of the description of the gun he possessed as a “handgun.” The motion to quash asserted that under Art. 21.09, V.A.C. C.P., the property should be described by name, kind, number and ownership. The motion did not allege that the description was insufficient to give him adequate notice, e. g., on the issue of whether the gun was an “antique or curio . . . manufactured prior to 1899.” (Sec. 46.01(3), supra). Cf. Drumm v. State, Tex.Cr.App., 560 S.W.2d 944. Inasmuch as complaint was based on Art. 21.09, supra, the court did not err in overruling the motion to quash. Welch v. State, Tex.Cr.App., 543 S.W.2d 378, 379-380.

The ground of error is overruled.

The judgment is affirmed.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.


text:
    Mary GARCIA, Appellant, v. The STATE of Texas, Appellee.
    Nos. 58046-58048.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 11, 1978.

      Bobby R. Taylor, Austin, for appellant.
    Ronald Earle, Dist. Atty. and Bill White, Asst. Dist. Atty., Austin, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation.

On December 22, 1975 the appellant entered pleas of guilty before the court to three indictments, two charging burglary of a habitation and one charging unauthorized use of a vehicle. Punishment was assessed at ten (10) years’ imprisonment on each case, but the imposition of the sentences was suspended and the appellant was placed on probation in each case. Among the conditions of probation were the requirements that appellant commit no offense against the laws of this state or any other state of the United States and that appellant avoid injurious or vicious habits, including the use of narcotic or habit-forming drugs and alcoholic beverages.

On May 11, 1976 the State filed motions to revoke probation alleging the appellant had committed the offense of burglary of a habitation with intent to commit theft on or about April 13, 1976, and further had violated her probation to avoid injurious or vicious habits in that her urine specimen submitted on March 17, 1976 was found to contain opiates.

On June 4, 1976 the court conducted a hearing on said motions, and at the conclusion of the same probation in each case was revoked, but the punishment was reduced in each case to five (5) years’ imprisonment prior to sentencing. Notice of appeal was given.

While the trial court did not announce its findings orally, the written order revoking probation reflects that revocation was based on the commission of a burglary of a habitation with intent to commit theft and that appellant’s urine specimen submitted on March 17, 1976 was found to contain opiates.

On appeal appellant complains the evidence was insufficient to sustain revocation on the basis of the alleged burglary because the State attempted to reduce the offense alleged to theft.

At the revocation hearing the prosecutor orally stated, “We will go on theft . . .” There was no amendment of the motion to revoke. Thereafter, the court informed the appellant at the motion to revoke alleged burglary of a habitation with intent to commit theft included the charge of theft.

Then the record reflects the following: “THE COURT: The State announces that it elects to proceed not on the burglary alleged in the Motion to Revoke, but on the lesser included offense of theft in the Motion to Revoke. To that Charge in the Motion to Revoke do you plead true or not true?
“THE DEFENDANT: True.”

The evidence then offered pertained to theft and no evidence was offered to show a burglary of a habitation.

Under the former Penal Code (1925) theft was not a lesser included offense of burglary with intent to commit theft. Hardin v. State, 458 S.W.2d 822 (Tex.Cr.App. 1970). As noted in Hardin, the offense of burglary with intent to commit theft may be complete whether any theft ever occurs or not. See also Martin v. State, 148 Tex. Cr.R. 232, 186 S.W.2d 80 (1945); Article 1389, V.A.P.C. (1925).

In 4 Branch’s Ann.P.C., 2d ed., § 2535, p. 863, it was written:

“It is the intent, and not the character or value of the article stolen after the burglarious entry, which characterizes and makes the offense of burglary complete.”

In Franks v. State, 516 S.W.2d 185 (Tex. Cr.App.1974), the revocation motion alleged the commission of a burglary on or about November 11, 1973, prior to the effective day of the current Penal Code. After a hearing, the trial judge orally stated he was revoking probation on a finding of theft. In reversing that case on appeal, this court observed that theft was not a lesser included offense of burglary, and since theft was not alleged in the revocation motion, the revocation could not be sustained on that basis. The court noted that the written order of revocation reflected the revocation for the offense of burglary rather than theft, but the evidence was insufficient to show burglary, hence the reversal.

V.T.C.A., Penal Code, § 30.02 (Burglary), provides in part:

“(a) A person commits an offense if, without the effective consent of the owner, he:
“(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; or
“(2) remains concealed, with intent to commit a felony or theft, in a building or habitation; or
“(3) enters a building or habitation and commits or attempts to commit a felony or theft.

The statute thus provides for (1) burglary with intent to commit felony or theft, (2) burglary by remaining concealed, and (3) burglary by committing or attempting to commit a felony or theft.

The third mode of burglary above could well include the commission of theft, but the revocation motion in the instant case alleged the first mode of burglary above. The elements of that mode of burglary are: (1) a person, (2) without the effective consent of the owner, (3) enters a habitation or building, not then open to the public, with intent to commit a felony or theft.

As under the former Code, it can be readily seen that the offense of burglary in the first mode may be complete whether any theft ever occurs or not. If the bur-glarious entry is made with the intent to commit a felony or theft, the offense is complete whether any felony or the crime of theft ever subsequently happens.

Article 37.09, V.A.C.C.P., as amended in 1973, provides:

“An offense is a lesser included offense if:
“(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
“(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
“(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
“(4) it consists of an attempt to commit the offense charged or an otherwise included offense.”

It is clear from the above that theft is not a lesser included offense of burglary of the first mode. We so hold. Therefore, theft is not a lesser included offense of the burglary alleged in the revocation motion. Here, the State attempted to reduce the offense charged as a violation of probation to theft, apparently believing theft was a lesser included offense of burglary of a habitation with intent to commit theft. No effort was made to amend the motion to revoke to charge theft. The evidence offered showed theft but not burglary. Although the written order of revocation, as in Franks, reflects the court found that a burglary was committed by appellant, no evidence was offered which supports such finding. Thus, appellant’s revocation cannot be sustained upon a finding of theft because it was not charged in the motion to revoke probation. Probation may not be revoked upon a finding of any violation of any probationary condition other than that alleged or necessarily included within the allegations of that alleged in the motion to revoke probation. Pickett v. State, 542 S.W.2d 868, 870 (Tex.Cr.App. 1976); Chacon v. State, 558 S.W.2d 874, 876 (Tex.Cr.App.1977). Further, the revocation cannot be sustained on a finding of the commission of a burglary because the evidence does not support the same.

We now turn to the question of whether the revocation can be sustained on the second ground alleged in the revocation motion that appellant had not avoided injurious and vicious habits because her urine specimen submitted on March 17, 1976 was found to contain opiates.

The record does not reflect that the court obtained appellant’s plea to the portion of the revocation motion alleging injurious and vicious habits. Further, no evidence was offered to show that appellant had ever submitted any urine test nor the results thereof. Thus, there was no evidence to support the trial court’s findings to this effect. If it had been proved, it should be remembered that proof of a single instance of the use of a drug cannot be characterized as a habit under the decisions of this court. Chacon v. State, supra; Morales v. State, 538 S.W.2d 629 (Tex.Cr.App.1976); Marshall v. State, 466 S.W.2d 582 (Tex.Cr. App.1971); Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970).

The State calls attention to an instrument entitled, “Defendant’s Plea of True, Waiver, Stipulation and Judicial Confession,” which is a printed form and contains the following language:

“I do further admit and judicially confess that I knowingly, intentionally and unlawfully committed the acts alleged in the Motion to Revoke Probation in this cause at the time and place and the manner alleged, and that I in fact plead true to the act or acts alleged in the Motion to Revoke Probation, and that I enter my plea of true to said act or acts, and that my plea of true is voluntary and is not influenced by any consideration of fear or any persuasion or any delusive hope of pardon.”

The instrument was sworn to by the appellant, but it was not introduced at the revocation hearing and therefore does not constitute a judicial confession or a stipulation.

The judgment is reversed and the motion to revoke dismissed.

      . The prosecutor expressly stated to the court that the revocation motion had not been amended.

      . Said Article 1389, V.A.P.C., provided:
      “The offense of burglary is constituted by entering a house by force, threats or fraud, at night, or in like manner by entering a house at any time, either day or night, and remaining concealed therein, with the intent in either case of committing a felony or the crime of theft.”

      . It is observed that Franks and the instant case are from the same county, the same court.

      . This is so despite the appellant’s plea of “true” because the plea was to an offense not alleged.

      . Trial judges confronted with proof at a revocation hearing of violations of other probationary conditions than those alleged in the revocation motion should permit the State the opportunity to amend its revocation motion to include such violations and give the probationer time to respond to the same if desired, if these other violations are to be used as the basis of revocation. Far too often trial judges rely on proof of one violation and no effort is made to base the revocation on all violations of probation so that if one falls there are other grounds in which to sustain the revocation.

      . The revocation motion did not allege that appellant had used narcotics or habit-forming drugs as included in the same probationary condition.


author: VOLLERS, Judge.

text:
    Ex parte Charles HILL.
    No. 58183.
    Court of Criminal Appeals of Texas, Panel 2.
    Oct. 11, 1978.

      Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

VOLLERS, Judge.

This is a petition for writ of habeas corpus brought pursuant to Article 11.07, V.A. C.C.P.

In 1972, petitioner was convicted on a plea of not guilty of the offense of burglary; two prior felony convictions were alleged and used to fix the punishment at life as an habitual offender under the provisions of Article 63, Vernon’s Ann.P.C. (1925).

Petitioner now complains that the three felonies alleged by the State as enhancement paragraphs in the indictment were unavailable for such use because two of the three were used to enhance the third in a 1961 Oklahoma conviction. Finding from the record that petitioner is confined pursuant to that conviction of which he now complains, we conclude that this Court has jurisdiction of this cause. See Article 11.07, Section 2(b), V.A.C.C.P.

The record reflects that in 1951 petitioner was convicted in Cause No. 1762 of the offense of assault with a dangerous weapon in the District Court of Jackson County, Oklahoma and received a four year sentence. In 1957, petitioner was convicted of the offense of forgery in Cause No. 2056 in the District Court of Lea County, New Mexico and was assessed a five year sentence.

In 1961, petitioner was charged by information with having committed the offense of sodomy in Cause No. 2093 in the District Court of Jackson County, Oklahoma. Such charge was alleged in the information as being “a third and subsequent offense in the manner and form as follows:” The 1951 conviction (No. 1762) and the 1957 conviction (No. 2056) were then alleged and the information concluded with the allegations of the primary sodomy offense and the statement that such had occurred “ . . . after having been twice before convicted of a felony.” On conviction the jury assessed petitioner’s punishment at ten years.

In 1971, petitioner was indicted for the offense of burglary in Cause No. 6906 in Wilbarger County, Texas. The indictment further alleged, for purposes of enhancement, the 1951 Oklahoma conviction (No. 1762), the 1957 New Mexico conviction (No. 2056) and the 1961 Oklahoma conviction (No. 2093). The jury returned a guilty verdict and petitioner’s sentence was assessed at life imprisonment in the Texas Department of Corrections, from which no appeal was perfected.

Petitioner’s contention before this Court is two-fold: first he contends that since the 1961 Oklahoma conviction was itself enhanced with two priors, it was unavailable for subsequent enhancement use in 1972; secondly, petitioner asserts that since the 1951 and 1957 convictions were previously used to enhance the 1961 Oklahoma conviction, they were unavailable to the State of Texas for enhancement use in 1971. We disagree.

This Court has consistently held that the fact that a defendant has suffered increased punishment on conviction of a second or subsequent offense by reason of his being a prior offender will not prevent imposition of a life sentence when a third conviction fixes his status as an habitual criminal. West v. State, 511 S.W.2d 502 (Tex.Cr.App.1974); Head v. State, 419 S.W.2d 375 (Tex.Cr.App.1967); Tuley v. State, 151 Tex.Cr.R. 442, 208 S.W.2d 366 (1948); Mayo v. State, 166 Tex.Cr.R. 470, 314 S.W.2d 834 (1947), cert. denied, 357 U.S. 935, 78 S.Ct. 1385,2 L.Ed.2d 1550; Ex Parte Calloway, 151 Tex.Cr.R. 90, 205 S.W.2d 583 (1947).

It is clear, if only by virtue of the fact that the 1961 “enhanced” conviction was obtained in a sister state, that the priors of which petitioner now complains had never before been utilized to enhance a punishment under Article 63 of the Texas Penal Code. The prohibition against use of a prior conviction more than one time for the purpose of enhancing punishment applies only when such double use is attempted by the State under the same statutory provision. Id.; [See also Ex Parte White, 538 S.W.2d 417, 418 n.2 (Tex.Cr.App.1976.)]

The writ is denied.

      . The record reflects that petitioner’s 1951 conviction was final before the time at which he was convicted in 1957. Likewise, the 1957 conviction was final when petitioner was charged with sodomy in 1961, and the 1961 conviction was final when Wilbarger County charged him with burglary in 1971.

      . The record before us contains a transcription of the Oklahoma trial court’s instructions given to the jury in Cause No. 2093 at petitioner’s sodomy trial in 1972. Salient portions follow and emphasis is supplied:
      * * * * * *
      (2)
      The statute under which the defendant is being prosecuted is as follows:
      “Every person who is guilty of the detestable and abominable crime against nature, committed with mankind or a beast, is pun-ishably [sic] by imprisonment in the penitentiary not exceeding ten years.”

      * * * * * *
      (3)
      The statute provides:
      That any person who, having been convicted of any offense punishable by imprisonment in the penitentiary, commits any crime after such conviction, is punishable therefor as follows:
      If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the penitentiary for any term exceeding five years, such person is punishable by imprisonment in the penitentiary for a term not less than ten years.

      (4)
      Certain evidence has been introduced tending to show that the defendant has heretofore been convicted of another and distinct offenses [sic] from that charged in the Information . . .. [B]ut should you find from the evidence that such other conviction has been had, you may, in your discretion, consider the same, as such facts may or may not, in your judgment, affect the weight and credit which you will give to the testimony of the defendant

      (5)
      The defendant stands charged with Soda-my [sic], After Former conviction of a Felony. Should you find from the evidence and beyond a reasonable doubt, under these instructions, that the defendant has heretofore been convicted of a felony, as charged in the information, you may, in that event, consider such fact in so far as the same bears upon the charge made in the information of a former or prior conviction, which has to do only with punishment, .