author: McGEE, Justice.

text:
    PARK CITIES CORPORATION, Petitioner, v. D. Harold BYRD et al., Respondents.
    No. B-5369.
    Supreme Court of Texas.
    Feb. 18, 1976.
    Rehearing Denied March 24,1976.
    Jackson, Walker, Winstead, Cantwell & Miller, Vester T. Hughes, Jr., and Sam J. Dealey, Dallas, for petitioner.
    Turner, Rodgers, Sailers, Jordan & Callo-way, John H. McElhaney, Dallas, John L. Hill, Atty. Gen., Martha E. Smiley, Asst. Atty. Gen., Austin, for respondents.
   McGEE, Justice.

This suit was brought by the executors of the estate of Mattie Caruth Byrd against Park Cities Corporation. On September 30, 1961 Mrs. Byrd and Park Cities Corporation entered into a limited partnership agreement for the purpose of building, owning and operating a large apartment complex in Dallas, Texas. The limited partnership, called Mattie Caruth Byrd Limited, was to exist until September 30, 2011 unless otherwise terminated under the provisions of the agreement. It was agreed that Mrs. Byrd was to be the managing general partner and Park Cities was to be a limited partner. No additional partners ever existed. On February 12, 1972 Mrs. Byrd died, which effectively dissolved the limited partnership as of that date pursuant to their agreement. Thereafter, a dispute arose between the executors of Mrs. Byrd’s estate and Park Cities Corporation. The executors of Mrs. Byrd’s estate brought this suit as an action for declaratory judgment to determine the correct method of winding up the limited partnership previously existent between Mrs. Byrd and Park Cities. In a non-jury trial, the trial court held on all points favorably to the position taken by the executors of Mrs. Byrd’s estate and denied all relief sought by Park Cities. The court of civil appeals affirmed the judgment of the trial court. 522 S.W.2d 572. The only problem to be resolved is whether or not the $1,987,-344 deficit in Mrs. Byrd’s capital account, created mainly by annual allocation of depreciation losses, is to be treated as an asset of the partnership, and as a liability of Mrs. Byrd. The court of civil appeals held that the deficit was not an asset of the partnership. We disagree.

The articles of agreement naming Mrs. Byrd as general partner and Park Cities as limited partner was carefully tailored to comply with the provisions of Tex.Rev.Civ. Stat.Ann. art. 6132a (1970). Park Cities was required to make a capital contribution of $100 and Mrs. Byrd was required to contribute her financial resources, skill, efforts and abilities to the mutual benefit of the partnership.

Park Cities Corporation was wholly owned by the Mattie Caruth Byrd Trust and the W. W. Caruth, Jr. Trust. The Mattie Caruth Byrd Trust benefited the general partner during her lifetime while the W. W. Caruth, Jr. Trust benefited her brother during his lifetime. Each trust provided a remainder interest to the children of the lifetime beneficiary.

The books of the partnership were audited each year by a national accounting firm and pursuant to Article VI of the partnership agreement, the books of the partnership were to be kept in accordance with generally accepted partnership accounting principles and the net income, profit or loss, and all items of income or expense were to be determined in accordance therewith. Other governing articles of agreement signed by the parties which are crucial and controlling of our ultimate decision, reveal the following:

“V. The parties hereby agree to divide the net income of the partnership at least annually and to share same in the percentages set forth opposite their names below:
Mattie Caruth Byrd, General Partner 50%
Park Cities Corporation, Limited Partner 50%
“And in the event the Limited Partner’s interest in the partnership is transferred, its successor in interest shall be entitled to the share set forth opposite the Limited Partner’s name.
“The parties further agree that for tax purposes they will share all net losses of the partnership according to the actual losses suffered by each party, and it is further expressly agreed that Park Cities Corporation shall not be financially responsible for any of the losses of the partnership in excess of its capital contribution as herein elsewhere set forth.
“X. The Limited Partner shall not be responsible for the debts of the partnership in excess of a capital contribution as herein provided and any losses shall be borne entirely by the General Partner, Mattie Caruth Byrd.
“VIII. In the event it is desired and the parties enter into an agreement to sell the property, or on the retirement, death or insanity of the General Partner, the partnership shall terminate and a final accounting and distribution be made as provided by law; . . .” [Emphasis added]

As per article VIII, upon the death of Mrs. Byrd on February 12, 1972 the partnership was dissolved and under article IX the assets of the partnership were to be distributed in the following manner and in the priority set forth:

“1. All charges, debts and obligations of the partnership shall be paid.
“2. The contribution of the Limited Partner shall be returned to it.
“3. The parties hereto shall each own and hold and be entitled to receive the percentages of the remaining partnership assets set out opposite their names below:
Mattie Caruth Byrd,
General Partner 50%
Park Cities Corporation,
Limited Partner 50%
“And in the event of the transfer of the interest of the Limited Partner, its successor in interest shall be entitled to the share set forth opposite the Limited Partner’s name.
“. . .” [Emphasis added].

Over the years, due to the negative cash flow position of Limited in its ownership and management of the University Gardens apartment complex, Mrs. Byrd extended a number of advances to Limited in the form of loans in order that the partnership could continue in operation by meeting its pressing financial obligations. The amount of the loans she made to Limited totalled $1,431,827 inclusive of interest. Mrs. Byrd also made contributions to the capital of Limited in 1964 and 1965 in the amount of $88,833.47. There was a controversy in the courts below as to whether some of the monies expended by Mrs. Byrd throughout the life of Limited, and evidenced by promissory notes were in reality “loans” to Limited or whether they were “unsecured capital contributions.” The lower courts held these monetary extensions to be “loans” and as such subject to full repayment to her by Limited upon dissolution. As a result, an issue below was also whether the debit balance in Mrs. Byrd’s capital account should be offset against these “loans” to the partnership before any final cash distribution was made as between the partners. The lower court holdings on the points relative to the loans are not before us for review. We are concerned only with the parties’ arguments relative to the questions presented which involve the deficit evident in Mrs. Byrd’s capital account.

The key to the present dispute involves the $1,987,344 capital deficit evident in Mrs. Byrd’s capital account as substantially created by depreciation. The partnership computed depreciation upon its buildings on an accelerated basis known as the declining balance method, then allowed at a rate of 200 percent of the straight line rate over the estimated useful lives of the assets. The controversial deficit of nearly $2,000,-000 came into existence in the following manner. As the articles of agreement earlier set out reveal, the parties agreed that “for tax purposes they will share all net losses of the partnership according to the actual losses suffered by each party.” In order to clarify the amount of loss each party was intended to suffer, the agreement further provided, “Park Cities Corporation shall not be financially responsible for any of the losses of the partnership in excess of its capital contribution” which was set at $100. Thus, it seems clear that when taken together, these two provisions reveal that Mrs. Byrd as the general partner was to be financially responsible for all losses incurred by the partnership in excess of the initial capital contribution of $100 made by Park Cities. It was this allocation of 100 percent of the depreciation losses to Mrs. Byrd’s capital account that created the controversy now before us. Each of the accountant’s reports showed clearly that Mrs. Byrd had used the depreciation allowance upon the partnership properties as a credit upon her personal income tax obligations to the extent allowed by law.

The dispute before us has resolved itself into two central points that Park Cities as petitioner has urged throughout the litigation. Park Cities maintains that the courts below erred in failing to conclude that the debit balance or deficit in Mrs. Byrd’s capital account is an asset of the partnership. Further, Park Cities urges as error the failure of the courts below to declare that Mrs. Byrd was liable to the partnership for this $1,987,344 ultimate debit balance or deficit in her capital account. Cumulative losses on the books of the partnership in the amount of $2,076,177 were debited to Mrs. Byrd’s capital account. She had made capital contributions of $88,833 in 1964 and 1965. This left Mrs. Byrd with the capital deficit in controversy totaling $1,987,344 as of February 12, 1972. Both parties’ arguments are based upon the theory that the final accumulated depreciation charged to Mrs. Byrd’s capital account exceeded $1,987,344 and thus depreciation alone fully accounts for the controversial deficit. The depreciation allocation is the major concern of the parties here since the court of civil appeals has apparently held that the debit balance in a partner’s capital account is to be disregarded if an approximately corresponding amount of depreciation has been charged against the partnership assets and income.

If the deficit created by the allocation of all of the depreciation charges to Mrs. Byrd’s capital account is to be treated as an asset, her estate will presently be liable to the partnership for the $1,987,344 deficit. If under the law, and more particularly under the agreement between the partners, this capital deficit is held not to be an asset of the partnership, the estate of Mrs. Byrd will not be subjected to liability for payment of that amount into the limited partnership now being wound up. Park Cities contends that the capital deficit is definitely an asset under their agreement with Mrs. Byrd, and consequently, she should be required to suffer the actual present financial loss for the entire sum. Under their theory, Mrs. Byrd’s estate would be liable to contribute to the capital of the partnership an amount sufficient to bring the debit balance of her capital account to zero.

It is also evident that the agreement provides for an equal division of the partnership assets upon dissolution. Thus, throughout this controversy the executors of Mrs. Byrd’s estate have argued that Park Cities by its attempt to have Mrs. Byrd’s capital deficit declared an asset, has simply been trying to maximize its final distributive share by increasing the scope of the assets available for distribution. The trial court and the court of civil appeals disagreed with the arguments forwarded by Park Cities and held that the closing of non-case depreciation from the profit and loss account to the capital account of the general partner is not something for which the general partner should be liable.

It has been held that upon dissolution, a partner whose capital account evidences a deficit is required to make a contribution to the capital of the partnership in an amount equal to the deficit. Conrad v. Judson, 465 S.W.2d 819 (Tex.Civ.App. — Dallas 1971, writ, refd n. r. e., cert, denied, 405 U.S. 1041, 92 S.Ct. 1312, 31 L.Ed.2d 582 (1972)). See, Tex.Rev.Civ.Stat.Ann. art. 6132b § 40. The executors of Mrs. Byrd’s estate, as respondents, argue that this principle can have no application to the present situation in which depreciation charges fully account for Mrs. Byrd’s capital deficit. They argue that the general partner’s capital account was merely a “receptacle or repository” to which such items as “non-cash depreciation” were to be allocated for “bookkeeping purposes.” They maintain that unlike a cash withdrawal situation, the present factual pattern reveals that Mrs. Byrd never “withdrew” anything from the partnership. They argue that none of the capital deficit involved in this suit reflects any “withdrawal” by Mrs. Byrd.

Park Cities, as petitioner, contends that Mrs. Byrd indeed received a valuable benefit in the form of this non-cash depreciation allocation and that she should be required to repay this amount into the partnership as it constituted an asset of the partnership. One portion of their argument is that due to the taxation benefits Mrs. Byrd realized by having all of the depreciation losses allocated to her capital account, that as between partners, this non-cash depreciation figure represents an item of clear economic value. They maintain that their interests were affected by such a loss allocation agreement and the deficit is not simply evidence of a mere bookkeeping item. Thus, they contend that Mrs. Byrd fully intended to bear all these annual depreciation losses as is clearly evident under article X of their agreement and that it was to her distinct advantage to do so. Park Cities further argues that as the limited partner they gave up the right to utilize their one-half of these depreciation losses, and therefore surrendered the right to realization of the annual tax benefits such losses would allow. This was allegedly done in sole reliance upon Mrs. Byrd’s agreement to suffer an equivalent dollar financial loss upon dissolution of the partnership in the future which presently amounts to almost $2,000,-000.

At the time of dissolution the limited partner’s capital account had a zero balance and Mrs. Byrd’s capital account revealed this $1,987,344 capital deficit. The agreement of the parties is to be controlling of our decision and we shall construe and interpret their agreement pursuant to the applicable law of contracts. See, City of Pinehurst v. Spooner Addition Water Company, 432 S.W.2d 515 (Tex.1968). We look to the Texas Uniform Partnership Act for guidance only when the partnership agreement is silent. In this case we shall often consider it only as an interpretive aid. Section 40 of the Texas Uniform Partnership Act reveals that a partner’s capital deficit may often be considered to be a partnership asset. Section 40(a) states that “[t]he assets of the partnership are: (I) The partnership property, (II) The contributions of the partners necessary for the payment of all the liabilities specified in clause (b) of this paragraph.” [Emphasis added].

Thus, it is clear that the assets of the partnership are to be utilized in paying off the liabilities of the partnership. Further, Section 40(d) also states that partners shall contribute the amount necessary to satisfy the liabilities as set out in Section 18(a) of the Act. Section 18(l)(a) of the Texas Uniform Partnership Act reveals that each partner must contribute toward the partnership losses, “whether of capital or otherwise,” according to his share in the profits unless varied by an agreement such as in the present controversy. Park Cities was not liable for any losses in excess of its capital contribution. Aside from the Partnership Act, under the present agreement, the depreciation of partnership assets in excess of income was a loss to which partners needed to contribute according to the loss ratios they agreed upon. Thus, Mrs. Byrd was required upon dissolution to contribute toward all of the partnership’s losses. See, Cortez v. Corsi, 513 S.W.2d 648 (Tex.Civ.App. — Corpus Christi 1974, writ ref’d n. r. e.).

In Conrad v. Judson, 465 S.W.2d 819 (Tex.Civ.App. — Dallas 1971, writ ref’d n. r. e., cert, denied, 405 U.S. 1041, 92 S.Ct. 1312, 31 L.Ed.2d 582 (1972)), the court held Conrad’s estate to be liable for a capital deficit of $40,298.12. Conrad had withdrawn substantially more cash than had the other partners and thus, Conrad’s capital account was charged with each withdrawal. The court held that upon liquidation the surviving partner was entitled to a judgment against Conrad’s estate in the amount of $40,298.12. Such amount was to be held for the benefit of the partnership. In the present controversy Park Cities argues that analogously it occupies the position of the surviving partner and Mrs. Byrd’s executors occupy the position of Conrad’s executors. Nevertheless, Mrs. Byrd’s executors and the court of civil appeals below in the present controversy attempted to distinguish Conrad on the basis of how that capital deficit was created. The court below stated that Conrad was inapposite:

“Conrad did not involve depreciation; instead, the court noted that Conrad ‘withdrew sums largely in excess of his share of earnings and profits and caused these salary items to be credited to his account, without the semblance of any agreement on the part of appellees, or either of them, in order to convert the overdraft in his account to a credit balance.’ (465 S.W.2d at 824) These unauthorized withdrawals were properly held to be in the nature of a debt and accountable in the dissolution.” 522 S.W.2d 572, 575.

The trial court and court of civil appeals in deciding the present case correctly stated that none of the capital deficit attributed to Mrs. Byrd’s capital account resulted from any withdrawal by, or distribution to, Mrs. Byrd. Her capital deficit was brought about by the depreciation allocation taken in accordance with the terms of the agreement entered into between her and Park Cities. The court below adopted Mrs. Byrd’s executors’ argument that closing the non-cash depreciation from the profit and loss account to the capital account is not in fact a withdrawal and that she therefore was under no obligation to pay this amount back into the partnership upon dissolution. We believe that under the agreement, this capital deficiency created a valid claim of the partnership against Mrs. Byrd. This is because a capital deficit may be created by the charging of losses against a partner’s capital account as well as by the withdrawal of funds by a partner. See, Cortez v. Corsi, 513 S.W.2d 648 (Tex.Civ.App. — Corpus Christi 1974, writ ref’d n. r. e.). Mrs. Byrd’s capital account was not merely a receptacle or a repository to which such items as non-cash depreciation were to be allocated for bookkeeping purposes as the respondents contend. It is obvious from a practical standpoint that the allocation of all of the partnership losses to the capital account of Mrs. Byrd was intended to have, and did result in, beneficial financial consequences to her.

It seems that these parties would not intend that Mrs. Byrd should receive the entire tax benefit from the nearly $2,000,-000 in partnership losses and never be required to suffer any actual financial loss as a result of those allocations. Park Cities could have made use of some of these losses to offset its taxation burden had they not agreed to allow Mrs. Byrd to make full use of this benefit. Mrs. Byrd made use of a potentially deductible loss which was an economic benefit to the partner to whom it was allocated. Due to the nature of the agreement entered into in this particular case, the liability of Mrs. Byrd because of her capital deficit is founded upon the fact that the deficit exists and not upon what created this particular deficit.

What is made clear in this case is the fact that Park Cities was to receive a potentially substantial benefit from a seemingly meager investment. As the limited partner, Park Cities was not liable for any of the partnership’s debts beyond' its $100 capital contribution and further, it was not required to bear any of the partnership’s losses. Indeed, Park Cities did not at any time make any further contribution to the capital of Limited. Nevertheless, Park Cities was to receive 50 percent of the income as well as 50 percent of the assets remaining after final distribution. Obviously, it was intended that Park Cities benefit materially from this limited partnership arrangement. Though the specific intent of the parties is not clear, the articles of agreement signed by these partners are clear and concise and will admit of only one interpretation:

“The Limited Partner shall not be responsible for the debts of the partnership in excess of a capital contribution as herein provided and any losses shall be borne entirely by the General Partner, Mattie Caruth Byrd.” [Emphasis added].

As agreed, the cumulative net loss of Mattie Caruth Byrd Limited was reflected in Mrs. Byrd’s capital account. The agreement does not even attempt to exclude depreciation from the scope of the term “losses.” “Loss is a generic relative term, it is not a word of limited, hard and fast meaning.” Black’s Law Dictionary, 1094 (4th Ed. 1968). As depreciation is normally viewed as being a loss, though not always entirely a real economic loss to the partnership, we may not construe the above agreement in any fashion other than as is generally set out. In the absence of anything indicating a contrary intent, we must view the broad phrase, “any losses,” as it is normally viewed. If the parties had intended to allocate only certain types of losses, they should have set this out in their agreement. Finally, aside from the fact that such loss allocation gave rise to economic benefits favoring Mrs. Byrd, the parties expressly agreed that she was to bear the total financial burden of all losses. Having agreed to bear the losses and agreeing to the method of accounting for such losses, and having accepted those charges and using them as an income tax deduction, we will not now allow the agreement and its intended consequences to be subverted.

The terms of the agreement indicate that the general partner was to receive the partnership losses, including those caused by depreciation, so long as the general partner actually bore the ultimate financial responsibility for the losses. Based upon the agreement and the applicable law, we hold that upon dissolution Mrs. Byrd’s capital deficit, resulting from the special allocation of depreciation to her account as the general partner, was an asset of the partnership and her estate is to account to the partnership for that amount. Mrs. Byrd’s estate is therefore presently liable to suffer the financial loss for this $1,987,344 as per the articles of agreement by contributing such amount to bring the balance of her capital account to zero.

The judgment of the court of civil appeals on this point is reversed and the cause is remanded to the trial court for final proceedings consistent with this opinion.

      . Throughout this opinion we will refer to the Mattie Caruth Byrd limited Partnership as “Limited,” the general partner as “Mrs. Byrd,” the executors of Mrs. Byrd’s estate as “Respondents,” and the limited partner as “Park Cities” or “Petitioner.”

      . Cumulative net losses on the books of the partnership of $2,076,177 were debited to Mrs. Byrd’s account whereas her final capital deficit totaled $1,987,344. Thus, as stated by respondents in their brief, the final accumulated depreciation exceeds and fully accounts for the deficit. We analyze the question strictly from this depreciation-effect point of view. The court of civil appeals in essence maintains that in this case, a capital deficit, created solely by depreciation, is not an asset of the partnership.

      . Texas Uniform Partnership Act, Tex.Rev. Civ.Stat.Ann. art. 6132b § 6(2) (1970) states that the Uniform Partnership Act shall apply to limited partnerships except insofar as the statutes relating to such limited partnerships are inconsistent.
      Article 6132b, Section 40(b) states:
      “(b) The liabilities of the partnership shall rank in order of payment, as follows:
      “I. Those owing to creditors other than partners,
      “ÍI. Those owing to partners other than for capital and profits,
      “III. Those owing to partners in respect of capital,
      “IV. Those owing to partners in respect of profits.”

      . See also, Texas Uniform Limited Partnership Act, Tex.Rev.Civ.Stat.Ann. art. 6132a, § 24(a) (1970). The comments to § 40 of the Texas Uniform Partnership Act reveal that Section 40(a) “includes as partnership as- ' sets the contributions from the partners necessary to meet partnership liabilities.

        This, in effect makes the assets equal the liabilities (except where all the partners are insolvent).”

      . The Cortez case discusses the liability of individual partners to another partner for capital deficits created as analyzed under Section 18(l)(a) of the Texas Uniform Partnership Act.

      . For a Texas case remotely analogous to our present controversy see, Bivins v. Proctor, 125 Tex. 137, 80 S.W.2d 307 (1935). See also, Essay v. Essay, 180 Neb. 47, 141 N.W.2d 436 (Neb. 1966); Kennedy v. Yost, 32 Del.Ch. 386, 88 A.2d 297 (Del.Ch.1952); Greiss v. Piatzer⅛ 131 N.J.Eq. 160, 24 A.2d 408 (N.J.Eq.1942).


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Wesley Bernard NEAL, Appellant, v. The STATE of Texas, Appellee.
    No. 50561.
    Court of Criminal Appeals of Texas.
    Dec. 10, 1975.
    Gilbert M. Spring, Lufkin, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was found guilty by a jury of the offense of assault with intent to murder with malice. The jury assessed punishment at twenty-five years.

The sufficiency of the evidence is challenged. The record reflects that the appellant kidnapped at gun point Mike Capps and his date Rohnda Fullen, forced them to drive to an adjacent county where he raped Fullen, and then forced them into the trunk of the car for the drive back to Lufkin. After circumstances required the,three to abandon the car, they arrived on foot in Lufkin at about 4:00 a. m. Verman Perry, a uniformed police officer, approached them in a patrol car and inquired as to their identity and business at that hour of the morning.

When Perry noticed Capps nodding toward the appellant, he asked Capps to get into the car with him. As Capps entered the car he told Perry that appellant had a gun in his belt and had just raped the girl. Perry then turned toward the appellant, who had pulled up his shirt so that a pistol was visible. Simultaneously, the officer testified, appellant was “reaching for it.” Perry drew his own gun and fired a single shot at him that missed. The appellant then threw his pistol to the ground and surrendered.

Appellant contends that the evidence is insufficient to show an intent to kill. We agree.

An intent to kill may be shown where a victim has been shot with a firearm. E. g., Hartman v. State, Tex.Cr.App., 507 S.W.2d 553; Hemphill v. State, Tex.Cr. App., 505 S.W.2d 560; Ortiz v. State, Tex. Cr.App., 490 S.W.2d 594; Carlisle v. State, Tex.Cr.App., 488 S.W.2d 428; Stallings v. State, Tex.Cr.App., 476 S.W.2d 679; Gamblin v. State, Tex.Cr.App., 476 S.W.2d 18; Rawlins v. State, Tex.Cr.App., 466 S.W.2d 308; Schulz v. State, Tex.Cr.App., 446 S.W.2d 872; Walker v. State, Tex.Cr.App., 440 S.W.2d 653; Valle v. State, Tex.Cr.App., 438 S.W.2d 583. Also, the evidence may be sufficient where a shot has been fired at an intended victim. E. g., Bell v. State, Tex.Cr.App., 501 S.W.2d 137; Klechka v. State, Tex.Cr.App., 475 S.W.2d 257; Hall v. State, Tex.Cr.App., 418 S.W.2d 810; Peterson v. State, Tex.Cr.App., 399 S.W.2d 813; Kincaid v. State, 150 Tex.Cr.R. 45,198 S.W.2d 899. But this Court has consistently required more evidence than was shown here. Convictions have been overturned that were supported by even more evidence of specific intent than presented in the instant case. For example, in Davis v. State, Tex.Cr.App., 516 S.W.2d 157, the police officer was unsure whether defendant had pointed his pistol at him; in Barnes v. State, 172 Tex.Cr.R. 303, 356 S.W.2d 679, defendant cut the victim with a knife and fired his pistol in the air as the victim was fleeing; in King v. State, 166 Tex.Cr.R. 230, 312 S.W.2d 677, defendant fired his rifle at four officers who “heard the bullet ‘whistle’ by them.” See also Thompson v. State, Tex.Cr.App., 521 S.W.2d 621; Hargrove v. State, Tex.Cr.App., 501 S.W.2d 878; Blount v. State, Tex.Cr.App., 376 S.W.2d 844; Watts v. State, 151 Tex.Cr.R. 349, 207 S.W.2d 94, 97 (on motion for rehearing).

Here, the appellant only made a motion toward his gun and immediately threw it down when the officer fired a shot at him. The record does not reflect that appellant ever pulled the trigger, pointed the pistol toward the officer, or even grasped the weapon in such a manner that it could be discharged intentionally. The officer testified that appellant had ample opportunity to kill him. Appellant testified that “I didn’t try to kill that policeman. If I had tried to kill him, he would be dead.” Clearly, the evidence is insufficient to support a finding of intent to kill.

The judgment is reversed and the cause remanded.


author: ONION, Presiding Judge

text:
    John WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 44437.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1975.
    Garland G. Wier, San Antonio, for appellant.
    Ted Butler, Dist. Atty., and Arthur A. Estefan, Charles E. Campion, Lucien B. Campbell and Douglas Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   Appeal from 187th Judicial District Court, Bexar County; Wallace C. Moore, Special Judge.

ONION, Presiding Judge

(dissenting on appellant’s motion to withdraw mandate).

Appellant’s motion to withdraw mandate is denied without written opinion by the majority. To such action I dissent.

This conviction for indecent exposure was affirmed by this court in Williams v. State, 481 S.W.2d 815 (Tex.Cr.App.1972), in a 3-2 decision on February 23, 1972. The dissent was based on the fact that the appellant had not been shown to be the perpetrator of the extraneous offense admitted into evidence against him. Rehearing was denied on July 12, 1972.

Subsequently, his post-convietion application for writ of habeas corpus under Article 11.07, Vernon’s Ann.C.C.P., was denied without written order by this court on September 25,1972. His application for writ of habeas corpus in federal court was denied on March 27, 1973, by the United States District Court for the Western District of Texas. The denial of the writ was affirmed by the Court of Appeals, Fifth Circuit, on December 20, 1973. It appears that while his appeal was pending in the Fifth Circuit Court of Appeals he was released on bail by the United States District Court and has remained free on such bond since that time. He has never been incarcerated in the Texas Department of Corrections.

In his motion appellant urges that long prior to the decision in his case it was well settled that an extraneous offense was inadmissible unless the accused was shown to be the perpetrator of the extraneous offense, and that consistently after the decision in his case this court has applied the same rule so that his case sticks out like a sore thumb, depriving him of due process of law, due course of the law of the land, and equal protection of the law. The State, while, arguing against the withdrawal of the mandate at this time, candidly agrees that the majority opinion in the Williams decision was contrary to the great weight of authority in this country.

Since the appellant has not yet been confined in the Texas Department of Corrections, he argues that it is not too late for this court to withdraw its mandate and correct the error of its ways. It is true that in Deramee v. State, 379 S.W.2d 908 (Tex. Cr.App.1964), this court withdrew its mandate where the motion to withdraw was filed within the same term of this court as the issuance of the mandate and the court acknowledged that error existed which would call for reversal.

Without detailing the myriad of problems of withdrawing a mandate many terms after the issuance of the mandate, although term time should not be talismanic, I conclude that appellant’s motion should be considered as an original application for writ of habeas corpus which I would grant.

Long prior to the decision in this case the law was well settled that even if proof of extraneous offenses comes within any of the exceptions to the general rule that the accused can be convicted, if at all, only by evidence that shows he is guilty of the offense charged, such evidence is not admissible unless it is shown that the accused is guilty of that extraneous offense. See Shepherd v. State, 143 Tex.Cr.R. 387, 158 S.W.2d 1010, 1011 (1942), citing with approval Fountain v. State, 90 Tex.Cr.R. 474, 241 S.W. 489 (1921); Denton v. State, 42 Tex.Cr.R. 427, 60 S.W. 670 (1901), and Nichols v. State, 138 Tex.Cr.R. 324, 136 S.W.2d 221 (1940). See also Perez v. State, 165 Tex.Cr.R. 639, 310 S.W.2d 334 (1958); Carmean v. State, 163 Tex.Cr.R. 218, 290 S.W .2d 240 (1956); Wells v. State, 118 Tex. Cr.R. 355, 42 S.W.2d 607 (1931); Hughitt v. State, 123 Tex.Cr.R. 168, 58 S.W.2d 509 (1933); 1 Branch’s Ann.P.C., 2d ed., Sec. 188, p. 204.

In Tomlinson v. State, 422 S.W.2d 474 (Tex.Cr.App.1967), this court, speaking through Judge Morrison, pointed out that “no extraneous offense should be offered unless the State is prepared to prove that the accused committed the same.” (Emphasis supplied).

In Le Blanc v. State, 441 S.W.2d 847 (Tex.Cr.App.1969), the rule was noted and it was held on rehearing that if extraneous offenses are admitted into evidence it is incumbent upon the State to prove that the accused is the person who committed such offenses.

In the instant Williams case the majority refused to adhere to this rule of evidence that arises out of a fundamental demand for justice and fairness, Gordy v. State, 159 Tex.Cr.R. 390, 264 S.W.2d 103 (1953). The conviction was upheld despite the introduction of an extraneous offense of indecent exposure without evidence that Williams was the perpetrator thereof.

Since that time, the court has returned to the rule of evidence discussed and has consistently applied it.

In Shaver v. State, 496 S.W.2d 604 (Tex.Cr.App.1973), it was again held that evidence of extraneous offenses should not be admitted unless the State can prove that the defendant committed them.

In Ransom v. State, 503 S.W.2d 810, 813 (Tex.Cr.App.1974), the rule of evidence involved was noted, citing 23 Tex.Jur.2d, Evidence, Sec. 195, p. 300, with approval.

In Landers v. State, 519 S.W.2d 115, 120 (Tex.Cr.App.1975), the opinion on rehearing stated, in discussing the rule of evidence:

“The authorities supporting this proposition of law are numerous indeed. Only in the controversial case of Williams v. State, 481 S.W.2d 815 (Tex.Cr.App.1972) (indecent exposure ease from Bexar County) does there seem to have been any serious departure.”
The rule was applied in Landers.

In Fentis v. State, 528. S.W.2d 590 (Tex. Cr.App.1975), this court said:

“It is elementary that an accused’s connection with an extraneous offense must be shown with some degree of certainty before evidence of that offense can come in, assuming it is relevant. Carmean v. State, 163 Tex.Cr.R. 218, 290 S.W.2d 240 (1956) [and other citations].”

The conviction was reversed.

It is clear then that the rule of evidence involved has been consistently applied before and after the Williams case, but not applied to him, treating his case differently than all those other appellants who come before this court. Thus, it is clear that Williams has been denied the equal protection of the law under the provisions of Article I, Sec. 3 of our State Constitution, as well as under the equal protection of the law clause of the Fourteenth Amendment of the United States Constitution. He has likewise been deprived of “the due course of the law of the land” as provided by Article I, Sec. 19 of the State Constitution, as well as due process as provided by the Fourteenth Amendment of the United States Constitution.

Treating appellant’s motion as an original application for habeas corpus, I would grant the cause and order the conviction set aside and the cause remanded since he was deprived of a fair and impartial trial.

ROBERTS, J., joins in this dissent.

      . See'Article I, Sec. 19, Texas Const. This is the due process of law provision of the Texas Constitution equivalent to the phrase “law of the land” in Magna Carta.

      . As to terms of this court, see Article V, Sec. 5, Texas Const., as amended November 8, 1966. At the time of the Deramee decision Article V, Sec. 5, as amended 1891, controlled term time.


author: DALLY, Commissioner.

text:
    Clifford Bernard TATUM aka Clifton Bernard Tatum, Appellant, v. The STATE of Texas, Appellee.
    Nos. 51659-51663.
    Court of Criminal Appeals of Texas.
    March 10, 1976.
    Rehearing Denied April 14, 1976.

      Delmar L. Cain and Edsam M. Ingram, Court appointed, Austin, for appellant.
    Robert O. Smith, Dist. Atty., and Stephen H. Capelle, Asst. Dist. Atty., Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

These are appeals from convictions for the following offenses:

Cause Number 51,659 — attempted aggravated rape
Cause Number 51,660 — aggravated rape Cause Number 51,661 — aggravated sexual abuse
Cause Number 51,662 — aggravated rape Cause Number 51,663 — aggravated robbery

The punishment assessed by the court, after the appellant entered pleas of guilty before the court to each offense, is imprisonment for 16 years; the sentences are to be served concurrently.

The appellant was fifteen years old when each of the offenses was committed. On July 19, 1974, under the provisions of V.T. C.A. Family Code, Sec. 54.02, the judge of the 98th Judicial District Court of Travis County, sitting as a juvenile judge, waived jurisdiction, certified, and transferred the appellant for appropriate criminal proceedings to the 147th Judicial District Court of Travis County.

On September 3, 1974, pursuant to the provisions of V.T.C.A. Family Code, Sec. 54.02(h), an examining trial was held in the 167th Judicial District Court of Travis County. At the conclusion of the examining trial the court found probable cause to bind the appellant over for grand jury action. On September 24, 1974, a grand jury returned the indictments charging the appellant with the commission of the offenses for which he was convicted.

On October 3, 1974, the appellant appeared in the 167th Judicial District Court of Travis County, accompanied by his two court-appointed attorneys, waived a jury trial, and entered pleas of guilty before the court to each indictment. The record reflects that the appellant was duly admonished of the consequences of his pleas in accordance with Article 26.13, V.A.C.C.P., and made judicial confessions admitting his guilt of each offense.

Appellant’s first contention is that the order of the juvenile court transferring jurisdiction to the district court is void because it does not apprise him of the specific crimes for which he might be charged in district court. It would appear that the proper forum for testing the juvenile court’s order was the Court of Civil Appeals pursuant to V.T.C.A. Family Code, Secs. 56.01 and 56.02, and the applicable Rules of Civil Procedure. Nevertheless, we have reviewed this contention and find nothing in V.T.C.A. Family Code, Sec. 54.02, which required the juvenile court’s transfer order to apprise appellant of the specific crimes for which he might be charged. Moreover, it would have been difficult for the juvenile court to predict the crimes for which the grand jury would indict appellant or that the grand jury would indict him at all.

The remaining contention is that an examining trial was not held in the 147th Judicial District Court, the court into which the appellant’s cases were transferred from the juvenile court. V.T.C.A. Family Code, Sec. 54.02(h), provides:

“(h) If the juvenile court waives jurisdiction, it shall state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court, and transfer the child to the appropriate court for criminal proceedings. On transfer of the child for criminal proceedings, he shall be dealt with as an adult and in accordance with the Texas Code of Criminal Procedure, 1965. The transfer of custody is an arrest. The examining trial shall be conducted by the court to which the case was transferred, which may remand the child to the jurisdiction of the juvenile court.”

The examining trial was held in the 167th Judicial District Court where the cases could properly have been transferred. See Article 199, Sec. 167(G), V.A.C.S.; cf. Hall v. State, 485 S.W.2d 563 (Tex.Cr.App. 1972). Although we have not found in the record an order transferring the cases before indictment from the 147th Judicial District Court to the 167th Judicial District Court, the absence of such a transfer order may not be attacked for the first time on appeal. See Duran v. State, 505 S.W.2d 863 (Tex.Cr.App.1974); Torres v. State, 161 Tex.Cr.R. 480, 278 S.W.2d 853 (1955); Eggleston v. State, 422 S.W.2d 460 (Tex.Cr.App.1967). The failure to hold an examining trial in the 147th Judicial District Court where the cases were originally transferred from the juvenile court was not error and does not render the convictions void as it is asserted by the appellant.

We have here, as we did in Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970), a question of jeopardy not raised in the appellate briefs that involves both a violation of the state and the federal constitution; it requires our review in the interest of justice. See Article 40.09, Sec. 13, V.A.C.C.P. In Cause Numbers 51,661, 51,-662, and 51,663, the appellant was charged with the offenses of aggravated sexual abuse, aggravated rape and aggravated robbery. The record shows that these three offenses were committed against the same complainant in the same transaction; under our holdings in Duckett v. State, supra; Price v. State, 475 S.W.2d 742 (Tex.Cr.App.1972); Ex parte Seelies, 511 S.W.2d 300 (Tex.Cr.App.1974); Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr.App.1974); Ellis v. State, 502 S.W.2d 146 (Tex.Cr.App.1973), the state may carve only one of these offenses from this transaction. A conviction for all three offenses constitutes a violation of the double jeopardy clauses of both the state and federal constitution. As in Ex parte Calderon, supra, two of the three judgments of conviction must be reversed. The indictment in Cause Number 51,663 also contains two other counts of aggravated robbery; the victims of the aggravated robberies alleged in these counts are the same victims of the offenses alleged in Cause Numbers 51,659 and 51,660. The record shows that these alleged aggravated robbery offenses were committed in the same transactions alleged in Cause Numbers 51,659 and 51,660, therefore neither of these additional counts for aggravated robbery may be used to sustain the conviction in Cause Number 51,663. Applying the same rule as applied in Ex parte Calderon, supra, we reverse the judgments of conviction in Cause Numbers 51,662 and 51,663.

We also note that in applying the indeterminate sentence law, Article 42.09, V.A.C.C.P., the trial court ordered the appellant confined in Cause Number 51,659 for not less than 5 years nor more than 16 years. The minimum punishment for attempted aggravated rape is 2 years, it being a second degree felony. See V.T.C.A. Penal Code, Secs. 21.03(b), 15.01(c), 12.33. Accordingly, the sentence is reformed to order appellant confined for not less than 2 years nor more than 16 years.

In Cause Number 51,659, the sentence is reformed and, as reformed, the judgment is affirmed. In Cause Numbers 51,660 and 51,661, the judgments are affirmed. In Cause Numbers 51,662 and 51,663, the judgments are reversed and the prosecutions are ordered dismissed.

Opinion approved by the Court.


author:
ODOM, Judge.
      DOUGLAS, Judge

text:
    Billy Ray DAY, Appellant, v. The STATE of Texas, Appellee.
    No. 50875.
    Court of Criminal Appeals of Texas.
    March 17, 1976.
    Rehearing Denied April 7, 1976.

      Larry D. Robertson, Abilene, for appellant.
    Ed Paynter, Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of burglary under V.T.C.A., Penal Code Sec. 30.02(a)(1); punishment, enhanced under V.T.C.A., Penal Code Sec. 12.42(d), is life.

Appellant challenges the sufficiency of the evidence to show a building was entered.

Y.T.C.A., Penal Code Sec. 30.02 defines burglary, in relevant part, as:

“(a) A person commits an offense if, without the effective consent of the owner:
(1) he 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; . . . .”

“Building” for purposes of the burglary section is defined in V.T.C.A., Penal Code Sec. 30.01(2), as “any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.”

The premises in question may accurately be described as consisting of a structure built of concrete blocks with three large doorways that were not capable of being closed, which structure with the surrounding yard was ¡enclosed by a chain link fence. The record reflects a cutting and entry through the chain link fence and a taking of property from the concrete block structure.

The State cites the Court’s holding in Anthony v. State, 151 Tex.Cr.R. 240, 207 S.W.2d 84, that a similar structure was a “house” under the former Penal Code.

“House” under the former Penal Code, as quoted in Anthony, supra, was defined as “any building or structure erected for public or private use . . . .”

Clearly the definitions are different and the holding in Anthony v. State, supra, is not controlling. The new Penal Code was prepared, enacted, and intended to be construed as a systematic whole, and should be interpreted in light of that legislative purpose. It is not sufficient for this Court to blindly adopt holdings under the old Code as controlling, because to do so would violate the legislative intent and would in short time render the new Code a difficult maze to understand. It would set a bad precedent for this Court to automatically adopt old Code decisions without discussion of the reasons for doing so, particularly where, as here, an entirely new definition of the statutory concept was adopted. This Court must do its duty to insure that changes in the law effected by enactment of the new Code are not rendered meaningless by judicial construction that merely reinstates the old Code. Only in those instances in which the Legislature brought forward old Code concepts or principles, and there are such instances, should the decisions of this Court construing the old Code be held controlling authority on the interpretation of the new Code. But where the Legislature has seen fit to abandon old Code concepts or definitions and has replaced them with new ones, it is the duty of this Court to give effect to that legislative action. Whether the structure here involved was a building within the meaning-of Sec. 30.01, supra, is a case of first impression and will be addressed as such.

Crucial in addressing the issue is the meaning of “enclosed structure.” We think it clear that the language used by the Legislature means the structure itself must be of an enclosed character. A structure that is merely enclosed by something else would not for that reason alone be an enclosed structure under the statute. If the latter were true, a windmill, water tower, or any other structure, if enclosed by a fence, would be included in the statutory definition. The Legislature did not intend such structures to be within the scope of the interests protected by the burglary statute.

The cutting and entry through the chain link fence in this case, although in violation of Y.T.C.A., Penal Code Sec. 28.03, Criminal Mischief, in its injury to the owner’s interest in the fence, and in violation of V.T.C.A., Penal Code See. 30.05, Criminal Trespass, in its injury to the owner’s interest in the premises enclosed by the fence, nevertheless was not an entry into a building in violation of V.T.C.A., Penal Code Sec. 30.02, Burglary, which is designed to protect the interests of owners in the security of habitations and buildings as those terms are defined in Sec. 30.01, supra. If a burglary was committed, it was not until the concrete block structure was entered. It must be determined, then, whether the concrete block structure itself constituted an enclosed structure.

The record contains a photograph of one face of the concrete block structure in question (State’s Exhibit 6), which shows three large portals or openings (see appendix). In describing the structure, the owner testified:

“Q. Would you describe briefly the nature of the buildings that you have there on your location?
“A. Okay. Now, the large main building is about 1,500 square feet, fronts on North First where our sales floor is. Behind that, there is a large concrete block building where we store our plywood, paneling, and some lumber so it will stay out of the weather.”

In identifying the photograph, the owner testified:

“THE WITNESS: A. Yes, sir. That is our concrete block building where we store out [sic] lumber, plywood, and paneling, and things, to keep them out of the weather.”

On cross-examination, the owner testified:

“Q. Mr. Varner, in State’s Exhibit Six, where this lumber is stacked outside, that is not in a building or anything, is it?
“A. No, sir.
“Q. It is sitting on the ground?
“A. Under the overhang, yeah.
“Q. And what you referred to as a building there, has no doors on it?
“A. Correct.
“Q. Never was any doors on it?
“A. Correct.
“Q. Does not lock or anything?
“A. No, sir.
“Q. Actually, it is a shed, isn’t it?
“A. It’s completely enclosed, except for those three doors.
“Q. Except for the holes in it?
“A. Right.
“Q. Which are big enough for a truck?
“A. Yes, sir.”

On cross-examination, an employee of the business testified:

“Q. This State’s Exhibit Number Six, which you referred to as a block building, has no doors on it, does it?
“A. No, sir.
“Q. It is wide open for trucks to go in and out of?
“A. Yes, sir.
“Q. Is that correct?
“A. Yes, sir.
“Q. All right. There is no doors broken open are [sic] anything like that?
“A. No, sir.”

It appears to be clear from this record that the concrete block structure was not of an enclosed character, but instead was, as existing at the time of the offense, permanently open or unenclosed. It appears to be a well-designed structure for the protection of stored lumber from the elements, being essentially a shed consisting of a roof and walls erected for as much protection from the elements as would be consistent with leaving permanently open portals for passage of persons and trucks. It also appears not to be designed for the security of its contents or occupants inasmuch as it is permanently open for entrance and exit of persons and trucks. To hold that a structure of the design shown here is a building within the definition in Sec. 30.-01, supra, would expand the scope of structures which may be the object of burglary to include open air stages with three walls and a roof, or open carports with walls on both sides but none on the ends, or even four-columned pavilions with no walls. The structure here is no more an enclosed structure than the examples just listed.

Although the record shows criminal mischief, criminal trespass, and felony theft, it does not show burglary. To hold the contrary would violate the legislative intent. If the Legislature desires to extend the protection of the burglary statute to • structures such as the one in this case, it is, of course, free to amend the definition of “building” in Sec. 30.01, supra.

We hold that the structure in this case is not a “building” within the terms of Sec. 30.01, supra, and reverse the conviction for insufficient evidence.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge

(dissenting).

State’s Exhibit No. 6 shows a photograph of the building entered by appellant. V.T. C.A., Penal Code, Section 30.02, provides that a person commits an offense if he enters a building without the owner’s consent. Building is defined as “any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, or use.”

In the present case we have a building with four walls. The witness Varner testified that it was a building and “It’s completely enclosed, except for those three doors.”

From the photograph admitted into evidence, this is an enclosed structure. There being no doors to close does not keep it from being an enclosed structure. If there are doors to a structure or residence or business building that are open, is the majority holding that those buildings would not be enclosed? I would not require that there be doors on a building and that they be closed to fit the definition of a building under the code.

The proof in the present case is sufficient to show that the building was enclosed. The judgment should be affirmed.

MORRISON, J., joins in this dissent.

      . In addition to the offenses of criminal mischief and criminal trespass, the record also reflects the commission of felony theft after the unlawful entry when construction materials and a truck were taken.

      . It appears the fence was designed for protection of this interest. But the Legislature did not provide protection for this interest by the burglary section where only a fence is erected; it extends such protection in that respect only to the extent found in the criminal trespass section. See comment on Sec. 30.05 above.

      . Compare the definition of “building” for purposes of V.T.C.A., Penal Code chapter 30 with that provided for purposes of arson in V.T.C.A., Penal Code Sec. 28.01(2):
      “ ‘Building’ means any structure or enclosure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.” (Emphasis added.)
      It is significant that the Legislature used a more restrictive definition in chapter 30, requiring an “enclosed structure” instead of a “structure or enclosure.”


author: ONION, Presiding Judge.

text:
    Gumaro Luis TAMEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 51487.
    Court of Criminal Appeals of Texas.
    March 17, 1976.
    Rehearing Denied April 14, 1976.

      Ronald D. Zipp, Edinburg, for appellant.
    Oscar B. Mclnnis, Dist. Atty., Edinburg, Jim D. Vollers, State’s Atty., and David S. MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation which presents, among other things, the question of the validity of a probationary condition which requires the probationer to submit his person, residence and vehicle to search by any peace officer at any time, night or day.

On October 24, 1973, in a bench trial, the appellant pled nolo contendere to the possession of marihuana. The imposition of the sentence was suspended and he was placed on probation for three (3) years subject to certain conditions, among which was the requirement that he “(a) Commit no offense against the laws of this State or any other State or of the United States.”

In March, 1974, the State filed a motion to revoke. On April 11, 1974, the State filed an amended motion to revoke alleging in the first count thereof that on December 11, 1973, he “did receive and possess firearms, to wit: a pistol and a shotgun in violation of the Penal Laws of the United States and in violation of condition ‘a’ of the Judgment placing him on probation.”

The second count alleged that on December 11, 1973, the appellant did intentionally and knowingly carry on and about his person a handgun in violation of the penal laws of Texas, and the third count alleged that on the same date he knowingly and intentionally possessed marihuana of more than four ounces.

On April 17, 1974, the court conducted a hearing on the amended revocation motion and at the conclusion of the hearing revoked upon the first count of the revocation motion alone.

The appellant appealed contending the court abused its discretion in revoking probation.

Gary Wheeler, United States Border Patrol Agent, testified at the revocation hearing he was conducting a stationary checkpoint on State Farm to Market Road 1017, approximately seven miles north of La Gloria, Texas, and 25 or 30 miles from the Mexican border on December 12, 1973, when he encountered the appellant. He described the checkpoint as a permanent checkpoint to cheek traffic and question people about citizenship, although there .were no permanent facilities there. He related that nearly every day some unit of the border patrol was there. On the day in question he related he stopped one Ramon Dionicio Martinez driving a pickup truck and discovered over 300 pounds of marihuana in a large metal compartment in the bed of the pickup.

Two or three minutes later Wheeler related a white over blue Cadillac approached the checkpoint. The driver was the appellant Tamez, and he was with Juan Guerra and another man.

Wheeler stated he had never seen the appellant before and did not know he was on probation and had no reason to believe the car had crossed the international boundary. The occupants stated that they were from the Donna-Weslaco area. A search of the Cadillac revealed a .25 caliber pistol under the driver’s seat, and a billfold belonging to Martinez, driver of the pickup, was found on the floorboard of the ear in the back.

Testimony as to the discovery of the pistol, etc., and the introduction of the same into evidence were over the objection that there was no probable cause for the search, no consent to search and the same was not justified as a border search. The State contended that it was in fact a border search, but relied heavily upon the condition of probation which was imposed on the appellant.

Kenneth Glick, a gun dealer in Pharr, testified that the pistol in question had been sold to a Casimiro Valdez Chapa on May 8, 1973, and he had originally obtained the pistol from the Firearms Import and Export Corporation of Miami, Florida, which had shipped the same through United Parcel Post on April 2, 1973.

Barry Jackson, Special Agent, Bureau of Alcohol, Tobacco and Firearms, testified as to procedures used in tracing a firearm and related the pistol in question had been manufactured in Germany, shipped to the named import dealer in Florida and then to Glick’s store in Pharr.

At the conclusion of the hearing the court revoked probation, finding that appellant violated his probationary conditions “in that on the 11th day of December, 1973, Defendant, Gumaro Luis Tamez, Jr., did have in his possession a firearm, to wit: a pistol, that had travelled in interstate commerce, in violation of the Penal Laws of the United States.” Sentence was then imposed.

Initially appellant contends that the court erred in failing to grant his motion to quash the revocation motion for the allegations were vague and indefinite and did not specify as to what penal laws of the United States and State of Texas were violated and did not give him fair notice so that he could prepare a defense thereto.

As earlier noted, the allegation in the revocation motion upon which revocation was based merely alleged that appellant did receive and possess a pistol and shotgun in violation of the penal laws of the United States. No statutes were cited or mentioned nor were there allegations so the appellant could readily identify the offense allegedly committed. In the revocation order the court simply found that the appellant had possessed a pistol that had trav-elled in interstate commerce in violation of federal law. It may have been that the court meant to make reference to the Gun Control Act of 1968, 18 U.S.C., Sec. 922(h), making it unlawful for a convicted felon, inter alia, “to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

We agree that the allegations of count one of the revocation motion were couched in such general terms so as to give the appellant no notice of how he had violated his probationary condition. The allegations in a motion to revoke probation do not require the same particularity of an indictment or an information, but, in all fairness, the allegations as to a violation of probation should be fully and clearly set forth in the motion to revoke so that he might be informed .as to that upon which he will be called to defend. Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970). When the motion fails to fully inform the probationer, he is denied the rudiments of due process. Kuenstler v. State, 486 S.W.2d 367, 368 (Tex.Cr.App.1972). Since the allegation in the motion upon which the revocation was predicated was in such general terms, not informing which federal gun law was supposedly violated, the revocation cannot stand. Graham v. State, 502 S.W.2d 809 (Tex.Cr.App.1973), and cases there cited.

Since in the event of another revocation hearing the other contentions raised are bound to reappear, we conclude we should also discuss them. Appellant contends the court abused its discretion in revoking probation since there was an illegal search and seizure in violation of the Fourth and Fourteenth Amendments, United States Constitution. See also Article I, Sec. 9, Texas Constitution.

First we must decide whether the fruits of the search were admissible as a border search, and if not, then we must decide the validity of the probationary condition imposed.

In Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the United States Supreme Court held that the Fourth Amendment prohibits the use of roving patrols to search vehicles, with neither a warrant nor probable cause, at points removed from the border and its functional equivalents. In United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), the court held that Alameida-Sanchez was not to be applied retroactively, but would be applicable to a roving patrol search conducted after June 21, 1973, the date of the decision in Almeida-Sanehez. See also Bowen v. United States, 422 U.S. 916, 95 S.Ct. 2569, 45 L:Ed.2d 641 (1975). In United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Court held that except at the border or its functional equivalents officers may stop vehicles only if they are aware of specific articulable facts, together with rational inferences therefrom, which would reasonably warrant suspicion that the vehicles are occupied by aliens who may be illegally in the United States; and that an officer whose observations lead him reasonably to suspect that a particular vehicle might contain illegal aliens is entitled to briefly stop the vehicles, question the occupants about their citizenship and immigration status and ask them to explain suspicious circumstances, but further detention or search must be based on consent or probable cause. In Brignoni-Ponce the Court held that the stop of a vehicle by a roving patrol was not legal where the vehicle’s occupants’ apparent Mexican ancestry furnished the only ground for suspicion that the occupants were aliens.

And in United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975), the Court extended Almeida-Sanehez and held that at traffic checkpoints removed from the border and its functional equivalents officers may not search private vehicles without consent or probable cause.

On February 4, 1976, in United States v. Martinez and United States v. Peralez, 526 F.2d 954 (5th Cir.1976), the Fifth Circuit Court of Appeals held that the Supreme Court’s decisions in Ortiz and Brignoni-Ponce would be given retrospective effect. With regard to the Martinez case, the Court noted that the search was post-Almeida-Sanchez and pr e-Ortiz and that while Al-meida-Sanehez was not to be given retrospective application Ortiz did not establish a new rule in an overruling decision as had Almeida-Sanehez, and, in fact, the Court in Ortiz pointed out it was following Almeida-Sanehez and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), in reaching its decision. The Fifth Circuit applied Ortiz to the Martinez case and reversed.

It is clear that the search in question on December 11, 1973, was post-Almeida-Sanchez and pr e-Ortiz, and under the authorities cited the search could not be upheld as a border search. It is understandable why the State does not rely upon the validity of the search as a border search.

We now turn to the probationary condition which had been imposed upon appellant and which reads:

“h — 1. Submit his person, place of residence and vehicle to search and seizure at any time of the day or night, with or without a search warrant, whenever requested to do so by the Probation Officer or any law enforcement officer.”

Article 42.12, Sec. 3, Vernon’s Ann.C.C.P., provides in part:

“The judges of the courts of the State of Texas having original jurisdiction of criminal actions, when it shall appear to ■ the satisfaction of the court that the ends of justice and the best interests of the public as well as the defendant will be subserved thereby, shall have the power, after conviction . . . and may place the defendant on probation . . . .”

Probation in the instant case was granted under the provisions of the foregoing statute, and while the probationary condition set out above is not one of the suggested statutory conditions listed in Section 6 of the Act, the court is not limited to those statutory conditions where it grants probation. Peach v. State, 498 S.W.2d 192 (Tex.Cr.App.1973).

Although the trial court has wide discretion in selecting terms and conditions of probation, Salinas v. State, 514 S.W.2d 754 (Tex.Cr.App.1974) (footnote # 1), it would appear, however, that the conditions imposed must be “reasonable” as expressly provided by statute. Article 42.12, Sec. 3d(a), Vernon’s Ann.C.C.P. And in light of the provisions of the statute, it would appear that permissible conditions should “have a reasonable relationship to the treatment of the accused and the protection of the public.” Porth v. Templar, 453 F.2d 330 (10th Cir.1971).

The imposition of a night curfew as a probationary condition was upheld as an appropriate condition under the circumstances in Salinas v. State, supra. And in Reese v. State, 167 Tex.Cr.R. 304, 320 S.W.2d 149 (1959), the requirement that the probationer enter a designated hospital for the treatment of narcotic addiction and remain there until medically discharged and then report to the probation officer was upheld.

However, in Glenn v. State, 168 Tex.Cr.R. 312, 327 S.W.2d 763 (1959), the court held that the condition “ ‘. . . that any time the said defendant’s conduct is not such that he warrants the confidence and esteem of the law abiding citizens of the State of Texas’ . . . ” he shall forfeit his right to probation was an unreasonable condition and was too indefinite and uncertain to be the.basis for revoking probation for conduct which would warrant the confidence and esteem of some law-abiding citizens but might not merit that of others. See and cf. Whitt v. State, 395 S.W.2d 39 (Tex.Cr.App.1965).

Our research has not revealed any case in this State like the instant one where the appellant was required to totally give up his federal and state constitutional rights against unreasonable searches and seizures as a condition of probation.

In People v. Peterson, 62 Mich.App. 258, 233 N.W.2d 250 (1975), the Court held that the blanket search and seizure provisions in the order of probation were invalid. The court wrote:

“ . . . But when the waiver is conditioned on the surrender of so hallowed a right, the so-called choice amounts to no choice at all. We hold the probationer’s signed acceptance thereof was in legal effect coerced and thus rendered nugatory.”

In United States ex rel. Coleman v. Smith, 395 F.Supp. 1155 (W.D.N.Y.1975), the Court held that consent to search granted as a condition to parole was involuntary and that the parole officer’s routine search of parolee’s residence, without suspicion of parole violation, was unreasonable.

The Court held that to substantiate a proper consent to search the State must prove that consent was in fact freely and voluntarily given, citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). And in determining whether the burden has been met, a court must examine the totality of the facts and circumstances surrounding the giving of consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

The Court then quoted from Schneckloth, supra, at 412 U.S. at p. 228, 93 S.Ct. at 2048 as follows:

“But the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion were applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed. . .”

The Court then held that the parolee’s consent was coerced and not voluntary where the signature to consent form was necessary to obtain parole.

In United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir.1975), the Court held that the probationary conditions which would allow any law enforcement officer to search a probationer at any time were over-broad and violated the Federal Probation Act, 18 U.S.C., Sec. 3651. The Court held that such was not reasonably related to the purpose of the Act and also abridged the Fourth Amendment, that it was too broad, too sweeping and forced the probationer to relinquish too many valuable rights with too little gain to society. The Court stated that the conditions which can be reasonably said to be proper ones are those that contribute significantly both to the rehabilitation of the convicted person and to the protection of society.

Likewise, we conclude that the probationary condition in the instant case is too broad, too sweeping and infringes upon the probationer’s rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Sec. 9, of the Texas Constitution. The condition imposed would literally permit searches, without probable cause or even suspicion, of the probationer’s person, vehicle or home at any time, day or night, by any peace officer, which could not possibly serve the ends of probation. For example, an intimidating and harassing search to serve law enforcement ends totally unrelated to either his prior conviction or his rehabilitation is authorized by the probationary condition. A probationer, like a parolee, has the right to enjoy a significant degree of privacy. United States v. Consuelo-Gonzalez, supra; Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

It is clear that protection afforded by the Fourth Amendment and Article I, Sec. 9, Texas Constitution, extends to probationers. This court has consistently and knowingly made this clear in ruling on appeals from orders revoking probation. See, e.g., Rushing v. State, 500 S.W.2d 667 (Tex.Cr.App.1973); Hegdal v. State, 488 S.W.2d 782 (Tex.Cr.App.1972). See also Martin v. United States, 183 F.2d 436, 439 (4th Cir.1950).

A diminution of Fourth Amendment protection and protection afforded by Article I, Sec. 9, Texas Constitution, can be justified only to the extent actually necessitated by the legitimate demands of the probation process. A probationer may be entitled to a diminished expectation of privacy because of the necessities of the correctional system, but his expectations may be diminished only to the extent necessary for his reformation and rehabilitation.

Further, it is clear that in accepting the condition of probation the appellant’s “consent” was not in fact freely and voluntarily given. The choice to reject probation and go to prison or accept the probationary condition was really no choice at all. It was in legal effect coerced. People v. Peterson, supra.

We hold that the probationary condition imposed was not reasonable in light of the purposes of Article 42.12, supra, and that the court erred in using the condition as a basis for admitting fruits of a search which was otherwise illegal.

We concede there is ample authority to the contrary, but we cannot agree with those cases. The wording of the condition in question seems to have been lifted verbatim from People v. Mason, 5 Cal.3d 759, 488 P.2d 630, 97 Cal.Rptr. 302 (1971), cert, denied, 405 U.S. 1016, 92 S.Ct. 1289, 31 L.Ed.2d 478. Mason held that a probationer who has been granted probation on the condition that he submit at any time to a warrantless search may have no reasonable expectation of the traditional Fourth Amendment protections. Other cases to the same effect are State v. Schlosser, 202 N.W.2d 136 (N.D.1972); State v. Mitchell, 22 N.C.App. 663, 207 S.E.2d 263 (1974); People v. Santos, 31 A.D.2d 508, 298 N.Y. S.2d 526 (1969), cert. denied, 397 U.S 969, 90 S.Ct. 1010, 25 L.Ed.2d 263.

We hold that the pistol admitted into evidence in the instant case was the fruit of an illegal search and was improperly admitted, Rushing v. State, 500 S.W.2d 667 (Tex.Cr.App.1973), and the court abused its discretion in revoking probation on the ground that it did.

The judgment is reversed and the cause remanded.

DOUGLAS and ODOM, JJ., concur in that part of the opinion which states the search was unauthorized.

      . All other evidence points to December 11, 1973, as the date in question.

      . In Barrett v. United States,-U. S.-, 96 S.Ct. 498,46 L.Ed.2d 450,18 Cr.L.R. 3033 (1976), the United c States Supreme Court held that the above provision applied to a convicted felon’s intrastate purchase from a retail dealer of a firearm that previously, but independently of the felon’s receipt, had been transported in interstate commerce from the manufacturer to a distributor and then from the distributor to the dealer.

      . We note that the State makes no effort in its brief to rely upon the fact that the search was valid as a border search, but relies upon the probationary condition.

      . This case also involved a Ramon Dionico Martinez, which was the same name of the driver of the pickup truck in the instant case. The stop there was also at a traffic checkpoint near La Gloria, but the opinion states.it was on October 11, 1973, while this record shows the stop in question was on December 11 or 12, 1973.

      . This authority is to be distinguished from the case where the jury recommends probation, in which situation the judge may impose only those conditions found in the statute. See Article 42.12, Sec. 3a, Vernon’s Ann.C.C.P.

      . It is observed that in Springer v. United States, 148 F.2d 411, 416 (9th Cir.1945), the Court rejected the condition that the probationer donate a pint of blood to Red Cross Blood Bank.

      . There now exists a dispute about the exact scope of Mason. See People v. Constancio, 42 Cal.App.3d 533, 116 Cal.Rptr. 910 (1974); People v. Bremmer, 30 Cal.App.3d 1058, 106 Cal.Rptr. 797 (1973). Further, in People v. Superior Court of San Mateo County, 12 Cal.3d 858, 117 Cal.Rptr. 433, 528 P.2d 41 (1974), it was held that where the defendant was released from the Narcotic Addict Evaluation Authority under a condition that he submit to any search by any law enforcement officer “upon request,” a subsequent search of his apartment in his absence without notice to him was invalidated for the words “upon request” meant notice to the defendant and was a prerequisite to the validity of the search.


text:
    Billy MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 51187.
    Court of Criminal Appeals of Texas.
    March 24, 1976.

      A. R. Archer, Jr., Monahans, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

Under an indictment for murder, appellant was convicted by a jury for voluntary manslaughter. The court assessed punishment at ten (10) years.

The State has filed a motion to abate the appeal on the ground that, after appellant’s conviction in the trial court, appellant’s attorney was suspended from the practice of law. The motion to abate must be granted.

Notice of completion of the record was mailed to appellant’s attorney on July 2, 1975. On September 22, 1975, a judgment was entered in the 143rd Judicial District Court of Ward County suspending such attorney from practicing law for two years. The record on appeal was approved and a brief was filed in the trial court by the suspended attorney on October 13, 1975.

In Chavez v. State, 471 S.W.2d 392 (Tex.Cr.App.1971), and Gomez v. State, 471 S.W.2d 393 (Tex.Cr.App.1971), the attorney for the respective appellants had died prior to notification of completion of the respective appellate records. In both cases the appeals were abated. In Chavez v. State, supra, we stated:

“In Steel v. State, Tex.Cr.App., 453 S.W.2d 486 (1970), we noted that the failure of non-appointed counsel in a criminal case to perfect an appeal from a conviction, when requested to do so by the accused, violates the requirement that the accused be afforded the effective aid of counsel on appeal. See Atilus v. United States, 406 F.2d 694 (5th Cir.1969). By analogy, it is clear that if the defendant manifested a desire to appeal then the absence of counsel, due to death, to pursue this appeal would also be a denial of assistance of counsel at a critical stage in a criminal proceeding.”

In Watson v. State, 532 S.W.2d 641 (Tex.Cr.App., Delivered February 18, 1976), no brief had been filed in appellant’s behalf. There, counsel had not been suspended until after notice of completion of the record had been mailed to him. Yet, during all the thirty days’ time provided under Art. 40.09, Sec. 9, Vernon’s Ann.C.C.P., in which a brief could be filed timely in the trial court in appellant’s behalf, his counsel was suspended from the practice of law and could not file a brief for appellant.

In Watson we stated:

“To avoid the possibility of depriving this appellant of the effective aid of counsel on appeal and an adequate appellate review, this appeal will be abated in order that the trial court can properly notify the appellant of his attorney’s suspension so that appellant may retain assistance of counsel on appeal or in the alternative to inquire and determine whether the circumstances would require the appointment of counsel for the appeal.”

In the instant case appellant’s counsel did file a brief, but such action on the part of counsel was unauthorized in view of the fact that he had been suspended from practicing law 21 days earlier. Consequently, we must abate the appeal for the above-quoted reasons stated in Watson.

Upon receipt of our mandate of abatement the trial court will notify appellant of his attorney’s suspension and give appellant a reasonable time to retain assistance of counsel on appeal or in the alternative to inquire and determine if the circumstances would require the appointment of counsel for the appeal. The time for filing a brief in the trial court under Art. 40.09, Sec. 9, Vernon’s Ann.C.C.P., shall begin on the date of such retention or appointment. Proceedings may then be had in the trial court under the appropriate sections of Art. 40.09, Vernon’s Ann.C.C.P.

The appeal is abated.

      . Counsel appears to have been retained.

      . An appeal from an order suspending an attorney may be taken to the Court of Civil Appeals, but such attorney “shall not be entitled to practice law in any form while the appeal is pending, and he shall have no right to supersede the judgment by bond or otherwise.” Title 14, Art. 12, Sec. 30 (State Bar Rules), Appendix to the State Bar Act, Art. 320a-l, Vernon’s Ann.Civ.Stat. Compare Phagan v. State, 510 S.W.2d 655 (Tex. Civ. App. 1974).

      . See footnote one.

      . There is nothing before us to show that appellant has previously been given such notice or that another attorney has been substituted to represent appellant on appeal. See Watson v. State, supra.

      . In this regard it should be noted that appellant filed an affidavit of indigency requesting a free transcription of the court reporter’s notes. See Art. 40.09, Sec. 5, Vernon’s Ann.C.C.P. The trial court granted appellant’s request. Consequently, if the trial court finds that appellant is not indigent and counsel is not retained, the appeal should be returned to this Court, together with the trial court’s findings and a transcription of the court reporter’s notes at the hearing on indigency, in order that this Court might properly review the same. See Stephens v. State, 509 S.W.2d 363 (Tex.Cr. App.1974).


author: MORRISON, Judge. ■ ONION, Presiding Judge

text:
    Billy Joe TYRA, Appellant, v. The STATE of Texas, Appellee.
    No. 51276.
    Court of Criminal Appeals of Texas.
    March 24, 1976.

      Charles Warren Van Cleve, Arlington, for appellant.
    Henry Wade, Dist. Atty., James B. Scott and Jerry Banks, Asst. Dist. Attys., Dallas,
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge. ■

The offense is fondling of sexual parts of a female child under the age of 14 years (Article 535d, V.A.P.C.); the punishment, enhanced by two prior felony convictions, life.

Appellant’s first ground of error alleges there is a fatal variance between the allegations of the indictment and the proof adduced at trial. The portion of the indictment in question alleged that appellant “knowingly and intentionally placed his hand against the sexual part to-wit: the vagina of . . .”

The prosecutrix testified as follows:
“A He put his hand between my legs.
Q Did he place his hand against your vagina?
A Yes.”
She further testified:
“A He put his hand where my vagina is. Q All right. When you say vagina, what do you mean by that?
A Where I use the rest room.
Q Okay. You mean the whole area around there, don’t you, isn’t that what you mean, the whole area between your legs?
A Yes.
Q So you are saying that maybe he touched, the whole area between your legs, is that what your testimony is?
A Yes.”

The State also introduced the confession of appellant in which he stated, “I did, one time while we were on the bed, play with her pussy a little.”

Appellant as part of his defense presented the testimony of a doctor that the vagina of a female was not a part of the vulva, but rather an internal sexual organ. He further testified that in his opinion it would not be possible for a man to place his hand against the vagina of a nine year old child. On cross examination the doctor admitted that the opening to the vagina is located close to the vulva and very little pressure would be required for a man to push his fingers between the lips of the vulva and touch the opening of the vagina.

We were confronted with a similar contention in Whatley v. State, Tex.Cr.R. 488, S.W.2d 422, wherein we said:

“Appellant urges that since the indictment alleged that the appellant placed the hand against the vulva of the prose-cutrix, the State was bound to prove that the appellant did in fact place his hand on the vulva of prosecutrix as alleged.
In Mounce v. State, Tex.Cr.App., 432 S.W.2d 104, this court held that ‘The testimony that the appellant placed the hands on the sexual private parts of the prosecutrix was sufficient to sustain such allegation,’ the allegation in the indictment having been that the defendant had placed his hands on the sexual parts, to-wit: the vulva.
In Ball v. State, 163 Tex.Cr.R. 214, 289 S.W.2d 926, this court concluded that prosecutrix’s testimony that defendant put his hand on her leg and on her privates was sufficient to support the indictment charging that appellant had ‘placed his hand against the sexual part, to-wit: the vulva.’
In Thomas v. State, Tex.Cr.R., 399 S.W.2d 555, it was held: ‘The testimony of the prosecutrix that appellant placed vaseline on her privates ... is sufficient to sustain the allegation in the indictment that he placed his hand against her “sexual part, to wit: the vulva.” ’
We find the testimony of the prosecutrix in the instant case sufficient to sustain the allegations in the indictment.”

The evidence in the case at bar was sufficient to support the allegation that appellant placed his hand “against” the vagina of the prosecutrix.

Appellant’s second ground of error is multifarious and not in compliance with Art. 40.09(9), V.A.C.C.P.

Ground of error three, if we properly understand the same is that the court erred in failing to submit to the jury the question of the voluntariness of appellant’s confession. No objection was made to the court’s charge on this ground, nor was a special charge on the issue of voluntariness requested. Nothing is presented for review. Langford v. State, Tex.Cr.App., 532 S.W.2d 91; Keith v. State, Tex.Cr.App., 499 S.W.2d 187.

Appellant’s fourth ground of error contends that the trial court made a comment on the weight of the evidence in its instructions to the jury. There is no written objection to this portion of the charge now complained of, therefore nothing is presented for review.

Appellant next complains that “the State utilized such inflammatory procedures and statements that the rights of the accused were denied with substantial prejudice.” Such ground of error is multifarious and not in compliance with Art. 40.09(9), V.A.C.C.P.

Finally appellant contends that the State did not offer proper proof of prior convictions for enhancement. The record reflects that appellant was indicted under Art. 63, V.A.P.C. However, the record is silent as to any proof that the commission of the offense for which he was convicted in 1963 occurred after his 1953 conviction was final. It is well established that the enhanced penalty statutes including Art. 63, supra, are to be strictly construed. Juarez v. State, Tex.Cr.App., 496 S.W.2d 638; Alvarez v. State, Tex.Cr.App., 472 S.W.2d 762; Smith v. State, 169 Tex.Cr.R. 315, 333 S.W.2d 385; Rogers v. State, Tex.Cr.App., 325 S.W.2d 697. It is error to enhance the punishment where there is no proof that each succeeding conviction is subsequent both in point of time of the commission of the offense and the conviction therefor. Cf. Villareal v. State, Tex.Cr.App., 468 S.W.2d 837; Garay v. State, Tex.Cr.App., 389 S.W.2d 952.

The error herein relates to punishment only; the court assessed the punishment. Therefore, the life sentence is set aside and the case remanded to the trial court for a new hearing or trial on the issue of punishment to be assessed by the court, at which time the State may again attempt to prove the prior convictions for the purpose of enhancing punishment. See Bullard v. State, Tex.Cr.App., 533 S.W.2d 812 (Delivered March 3, 1976).

It is so ordered.

ONION, Presiding Judge

(concurring in part and dissenting in part).

I agree that the case must be remanded to the trial court for a new hearing on punishment, but dissent for the same reason as stated in my opinion (Concurring in Part and Dissenting in Part) in Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App., Delivered March 3, 1976). Upon remand the court should be restricted to assessing punishment for the primary offense alone. Elizalde v. State, 507 S.W.2d 749 (Tex.Cr.App.1974), should not have been overruled in Bullard v. State, supra.

      . We note that the trial court held a hearing outside the presence of the jury at which time the confession was found to be freely and voluntarily made and findings to that effect were entered in the record. Further, the record fully supports these findings of the trial court.