author: PHILLIPS, Judge.

text:
    Don SIMS, Appellant, v. The STATE of Texas, Appellee.
    No. 52612.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1977.
    Rehearing Denied Feb. 16, 1977.

      Fred E. Time, Dallas, for appellant.
    Robert Glasgow, Dist. Atty., Stephenville, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

Appellant was tried by a jury on an indictment alleging the felony offense of intentionally and knowingly carrying a pistol on premises licensed by the State of Texas for the sale and service of alcoholic beverages. He was acquitted of said felony offense and convicted of the lesser included misdemeanor offense under V.T.C.A., Penal Code, Sec. 46.02, of intentionally and knowingly carrying on or about his person a handgun, and punishment was assessed at 90 days jail time and a $2,000.00 fine.

Bob McBride testified that on June 10, 1975, he owned and operated a private club known as the Timbers Club in Erath County, that shortly after closing said club after 12:00 p. m. on said date he and a fellow employee, Billy Baskel, were standing together in the parking area about ten feet out from the front door when a car, sliding and spinning its wheels, drove within about 15 feet of him and Baskel with a gun sticking out of the window on the driver’s side which was fired several times, with the driver of the automobile holding said pistol. Said Billy Baskel testified that he saw the trail come from the pistol which was on the driver’s side upon the firing of the second shot; that at the time of the said second shot said car had turned in front of him and was approximately 15 feet away from him; that he immediately ran up to within five feet of said car in an effort to get the license number of same; that as he did so, when the car went by him, the driver turned and looked back with the light in the parking , lot shining right on him; and that he could tell who the driver was and it was Don Sims, whom he then identified as the defendant in the courtroom.

Appellant’s contention of insufficient evidence is clearly shown by the above to be without merit.

Appellant’s grounds of error which raise the question of effective assistance of counsel are primarily based on allegations by appellate counsel that trial counsel should have requested a charge on circumstantial evidence, that reputation witnesses should have been called in appellant’s behalf, that appellant should have been called to the witness stand, and after acquittal of the felony an application for misdemeanor probation should have been filed, proved up and presented to the jury.

The evidence set out above unequivocally demonstrates that no charge on circumstantial evidence was required and trial counsel quite properly refrained from burdening the trial court with such frivolous request. Said other allegations pertaining to the representation afforded the accused by trial counsel are attempted to be presented by the court reporter’s notes of a hearing held approximately five months after notice of appeal which was approved by the trial court as a bill of exception. We held in Boykin v. State, 516 S.W.2d 946, Tex.Cr.App., that a motion for new trial is overruled by operation of the law 20 days after the filing of the original or amended motion and that any hearing had thereafter on same is a nullity and the evidence at said hearing would not be considered by this Court. Since Art. 40.09, V.A.C.C.P., provides that the approval of a bill of exception by the trial court after the expiration of the 90 day period allowed for filing same shall be sufficient proof that the time for filing was properly extended and since said Art. 40.09, supra, now provides, in effect, that a transcription of the reporter’s notes may serve as an informal bill of exception, we will consider all of the evidence presented at said hearing in order that appellant be now afforded a full and adequate appellate determination after a full, fair and adequate evidentiary hearing of the question of ineffective counsel alleged herein. Upon doing so, we find that trial counsel advised his client fully, fairly and accurately as to his rights pertaining to the alleged matters now raised, that he quite wisely advised him not to present reputation witnesses when it was certain that “have you heard” questions in cross examination of said witnesses would expose to the jury a highly prejudicial charge theretofore made against the appellant of a somewhat similar matter, that his advice to the appellant to forego taking the witness stand because he felt the benefits to be derived from seeking misdemeanor probation were outweighed by possible harmful effects from his examination on the stand, was advice clearly given by able and competent counsel, that said counsel was probably, at the time, better equipped to determine the wisdom of said matters than is appellate counsel or this Court. In short, after consideration of the entire record in its totality, we find and hold that appellant was afforded effective and unusually competent representation by counsel in all material matters in his trial. Ex parte Bratchett, 513 S.W.2d 851, Tex.Cr.App.; Williams v. State, 513 S.W.2d 54, Tex.Cr.App.

Appellant further contends that overruling the motion to quash the indictment for the reason same alleged the appellant carried on or about his person a pistol, instead of a handgun specifically prohibited by statute, was error; that appellant’s objection to the charge authorizing a misdemeanor conviction for carrying a handgun, when such had not been specifically pleaded, should have been sustained; and that the court erroneously rendered judgment of conviction for carrying a handgun without support in the indictment. Art. 21.17, V.A. C.C.P., provides as follows:

“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”

A pistol is necessarily a handgun and the term “pistol” clearly includes the sense and meaning of the term “handgun”. See V.T. C.A., Penal Code, Sec. 46.01(5). We overrule appellant’s said contentions thereto.

The judgment adjudges the appellant guilty of the offense of unlawfully carrying weapons on premises licensed for alcoholic beverages and the sentence recites such adjudication therein, when the appellant was, in fact, convicted by the jury’s verdict only of the misdemeanor offense of intentionally and knowingly carrying on or about his person a handgun. To conform to the verdict and indictment herein, the judgment is reformed to adjudge the appellant Don Sims guilty of, the offense of intentionally and knowingly carrying on or about his person a handgun and the sentence is reformed to recite that appellant Don Sims has been adjudged to be guilty of the offense of intentionally and knowingly carrying on or about his person a handgun, and, as so reformed, the judgment and sentence herein are affirmed.


source: Caselaw Access Project

author: ROBERTS, Judge. DOUGLAS, Judge,

license: Public Domain

text:
    Jill DANZIG, Appellant, v. The STATE of Texas, Appellee.
    No. 52317.
    Court of Criminal Appeals of Texas.
    Jan. 26, 1977.
    Rehearing Denied Feb. 23, 1977.
    Terry L. Belt, Austin, for appellant.
    Joe Carroll, Dist. Atty. & Troy C. Hurley, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated assault by using a deadly weapon. After finding the appellant guilty, the jury assessed her punishment at five years.

Appellant’s only contention is that the evidence is insufficient to show that the weapon used was deadly. We agree and reverse.

Omitting the formal parts, the indictment alleges that on May 5, 1975, the appellant “did then and there use a knife, a deadly weapon, intentionally threaten imminent bodily injury to James A. Naraine.” This is sufficient to charge aggravated assault under Y.T.C.A., Penal Code, Secs. 22.01(a)(2) and 22.02(a)(3), a third degree felony.

The record reflects that at approximately 2:00 a.m. on May 5, 1975, the complaining witness James Naraine and a companion agreed to have intercourse with the appellant and her friend, both of whom were prostitutes. Naraine’s companion gave appellant forty dollars after the four had gone to a trailer. However, the women refused to carry out their part of the agreement and also refused to return the forty dollars. Then, with the aid of a male associate, the women forced Naraine and his companion to leave the trailer. The two men left the trailer and went to a nearby bus station.

While waiting for a bus, Naraine saw the two women walking ' nearby. He approached appellant and again asked for the return of the forty dollars. Appellant responded by swinging at Naraine. She then pulled out a small penknife with a blade “about three or four inches” long. Naraine grabbed her hands, and, while trying to take the knife away from her, he was stabbed in the back by the appellant’s companion. In response, he turned around. He was then stabbed in the arm and over the nose by appellant.

At this time, Officer Andrew Samarripa of the Killeen Police Department drove by the scene of the assault in his patrol car. He testified that he saw the “scuffle” and saw the appellant striking Naraine. However, he testified that he was not able to see any knife in her hand. No knife was found on appellant’s person or in the area around the disturbance.

Samarripa also testified that when he approached the scene of the assault Naraine was “bleeding profusely.” Naraine testified that eight stitches were required to close his wounds. No medical testimony on the nature or extent of the wounds was offered, although Samarripa testified that the wound on Naraine’s nose could have been caused by a ring rather than a knife.

In determining whether the evidence was sufficient to show that the knife was a deadly weapon, as alleged, we turn first to Section 1.07(a)(ll) of our new Penal Code, which defines “deadly weapon” as

“(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
“(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”

What we said on original submission in Mosley v. State, 545 S.W.2d 144, 146 (Tex.Cr.App.1977), No. 51,972, delivered October 27, 1976 (opinion on rehearing delivered January 12, 1977), applies also to the case before us:

“The threshold question before us is whether our past decisions have any weight now that ‘deadly weapon’ has been defined by the Legislature, [footnote omitted] One commentary to the new Penal Code observes:
“ ‘It would appear that prior Texas law provided as here, that an instrument may become a deadly weapon by the manner of its use or capability for use.’ [1] Branch’s Ann.Tex.Penal' Statutes, 3rd Ed., Sec. 1.07(11), p. 27. (Emphasis added [in Mosley]).
“Our prior opinions on the meaning of ‘deadly weapon’ do and should have instructional significance under the new Penal Code. This approach is particularly appropriate in light of the fact that the Legislature has apparently codified our prior case law definition of the term.”

Therefore, we turn to our past decisions for guidance in determining whether the extent of the complainant’s injuries is of consequence in deciding whether a knife is a deadly weapon under subsection (B) of V.T.C.A., Penal Code, Sec. 1.07(a)(ll).

In Williams v. State, 477 S.W.2d 24, 25 (Tex.Cr.App.1972), we held, in a unanimous opinion, that:

“A pocket knife is not per se a ‘deadly weapon.’ Barnes v. State, 172 Tex.Cr.R. 303, 356 S.W.2d 679. However, the mode and manner of its use, Richards v. State, 147 Tex.Cr.R. 118, 178 S.W.2d 517, and the wounds inflicted on the injured party, Reed v. State, 149 Tex.Cr.R. 208, 192 S.W.2d 890, are factors in determining the character of the weapon and the intent to kill.” (Emphasis added).

This rule is well established. See, e. g., Johnson v. State, 421 S.W.2d 918, 920 (Tex.Cr.App.1968); Boazman v. State, 501 S.W.2d 894, 896 (Tex.Cr.App.1973).

We therefore hold that under the new Penal Code the wounds inflicted on the injured party are factors to be considered in determining whether a weapon is a deadly weapon under Y.T.C.A., Penal Code, Sec. 1.07(a)(ll)(B).

We are aware that in determining whether the evidence is sufficient to support the verdict of the jury the rule is that this Court will not substitute its findings for those of the jury, provided there is sufficient evidence to support the jury’s verdict. See, e. g., Ammann v. State, 145 Tex.Cr.R. 34, 165 S.W.2d 744 (1942).

In Ammann, as in this case, the issue was whether the knife used in the assault was a deadly weapon. In holding that evidence was insufficient, the Court said:

“We are not unmindful of the fact that this court has always been hesitant to disturb the verdict of the jury. But, where the evidence fails to measure up to that required by law to show the guilt of the accused it becomes our duty to say so.” Id., at 38-39, 165 S.W.2d, at 746.

The facts and holding of Ammann are instructive in our consideration of this ease. In Ammann the complainant and defendant had had a dispute at a cafe on the night before the alleged assault. The next morning the defendant entered the cafe and, using a small pocketknife, stabbed the complainant. He then ran from the building and was heard to say, “I came over here to do it, and I done it,” or something very similar.

The complainant in Ammann was in the hospital for five days after the stabbing. The attending physician testified that the wound was eight or ten inches long, extending from the eighth rib on the left side to a point approximately three inches above the navel. The wound did not enter the abdominal cavity, and the doctor testified that he did not believe it would have brought about the complainant’s death, even if it had not been sewn up.

“At no time did the doctor express the opinion that the wound was dangerous or that death was likely to ensue therefrom.” Id., at 36, 165 S.W.2d, at 745.

The defendant admitted the stabbing but claimed it was done in self-defense.

In reversing, the Court in Ammann relied heavily upon its previous reversal in Hunt v. State, 94 Tex.Cr.R. 155, 250 S.W. 168 (1923). In Hunt the complaining witness was the defendant’s wife. Both parties went to the hospital with knife wounds after the alleged assault. The State presented testimony that the defendant’s wounds were self-inflicted and that during the alleged assault the defendant expressed an intent to kill.

The complainant’s wounds were around her throat and caused her to be hospitalized for about a week. The doctor who examined the complainant stated that the wound did not extend far enough or go deep enough to be fatal, but, if it had gone a little deeper, it “would have been likely to produce death.” Id., at 156, 250 S.W. at 168.

The defendant claimed self-defense and denied expressing an intent to kill at the time of the assault.

In the present case, as in Ammann and Hunt, the weapon was not a deadly weapon per se, and the wounds, although near vital areas, were not shown, by expert testimony or otherwise, to have been likely to result in death or serious bodily injury. See also Fregia v. State, 79 Tex.Cr.R. 334, 185 S.W. 11 (1916), and the other cases cited in Am-mann and Hunt. In both Ammann and Hunt, the Court emphasized the lack of expert testimony to show that the wounds were dangerous or that they were likely to result in death.

Similarly, our recent cases have also emphasized the importance of some kind of opinion testimony — generally expert testimony — in such cases. See Washington v. State, 471 S.W.2d 409, 410 (Tex.Cr.App.1971); Abels v. State, 489 S.W.2d 910, 911 (Tex.Cr.App.1973); Marrero v. State, 500 S.W.2d 818, 819 (Tex.Cr.App.1973); McElroy v. State, 528 S.W.2d 831, 834 (Tex.Cr.App.1975).

What these cases stand for is the basic rule that the State must prove every element of its case beyond a reasonable doubt, and that where the deadly nature of the weapon is an issue the jury will not be allowed to infer deadliness solely from superficial wounds, even though those wounds may have required suturing; thus, the State must provide the trier of fact with some evidence, normally through expert testimony, that the weapon was used or intended to be used in such a way that it was “capable of causing death or serious bodily injqry.” V.T.C.A., Penal Code, Sec. 1.07(a)(ll)(B). See also Boazman v. State, supra, 501 S.W.2d at 896.

In light of the authorities cited and the evidence presented at trial, we conclude that the evidence is insufficient to show that the weapon was deadly, as alleged in the indictment.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

The majority reverses and holds that the evidence is insufficient to support the conviction. The indictment, omitting the formal parts, alleged that she “did then and there use a knife, a deadly weapon, intentionally threaten imminent bodily injury to James A. Naraine.”

The evidence shows that at approximately 3:00 o’clock in the morning on a street in Killeen on May 5,1975, appellant and Patricia Williams became involved in an altercation with the complaining witness James A. Naraine. Naraine suffered stab wounds in the back, left arm and on his nose near the eye. He was treated at Darnell Army Hospital where eight stitches, including two on the nose, were required to close his wounds. Naraine testified that both appellant and Patricia Williams stabbed him with knives. He described them as folding “penknives” having blades of approximately three to four inches long.

The indictment charges by use of a deadly weapon. The extent of the complaining witness’ injuries are of no consequence. The threat of imminent bodily injury with a deadly weapon is all that is required.

Appellant relies on Henderson v. State, 55 Tex.Cr.R. 170, 115 S.W. 588 (1909), which held that an ordinary pocketknife with a three-inch blade is not per se a “deadly weapon.” No evidence was introduced in Henderson to show the manner in which the knife was used and the conviction was reversed.

Although a knife is not a deadly weapon per se, it can qualify as such through the manner of its use, its size and shape and its capacity to produce death or serious bodily injury. McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975); Ables v. State, 489 S.W.2d 910 (Tex.Cr.App.1973); Gillingham v. State, 167 Tex.Cr.R. 116, 318 S.W.2d 659 (1958).

The court, in its charge, required the jury to find that the assault was made with a deadly weapon, defining such term as a weapon which from the manner used is calculated or likely to produce death or serious bodily injury.

The jury having found that the knife used was, from the manner of its use, calculated or likely to produce death or serious bodily injury under the evidence mentioned above, their verdict should not be disturbed. In the Gillingham case, the Court held that a switchblade knife with a blade 3 ¼ inches in length and ½ inch in width would come within the definition of a deadly weapon when used to slash in the vicinity of the face and neck. The Court wrote that whether a knife is to be considered a deadly weapon depends upon its size and the manner of its use and upon its size, shape and capacity to produce death and that, when the use made of the knife produced neither death nor serious bodily injury, the test then is whether the manner in which it was used was calculated to do either. The evidence in the record before us is sufficient to show that appellant used the knife in a manner which was calculated or likely to produce death or serious bodily injury. The jury was the trier of the facts. It was the jury’s prerogative to determine the credibility of the witnesses and the weight to be given to their testimony. This Court is not at liberty to substitute its findings for those of the jury. Ferrell v. State, 464 S.W.2d 851 (Tex.Cr.App.1971).

It does not take a doctor’s testimony to prove that the knife wielded as it was in this case could cause death.

This Court has held that an automobile is not a deadly weapon per se but, that through its manner of use, it could be one. When someone tries to run over another with an automobile would the majority require proof from an expert that an automobile is a deadly weapon? The majority is not giving jurors credit for knowing facts that are of common knowledge.

The majority has to overrule the well reasoned Gillingham case to reach its erroneous result.

No reversible error having been shown, the judgment should be affirmed.

      . Samarripa testified that close to the disturbance were several other prostitutes who could have secreted the knives.

      . We are here concerned only with subsection (B) because, as the State concedes, a knife is not a deadly weapon per se, as defined by subsection (A) of Section 1.07(a)(ll). See Mosely v. State, supra.

      . To the extent that Gillingham v. State, 167 Tex.Cr.R. 116, 318 S.W.2d 659 (1958) provides authority to the contrary, it is overruled in favor of the sounder reasoning of Ammann v. State, supra, and the long line of authorities on which its holding is based.


author: DAVIS, Commissioner.

text:
    Ex parte Don W. HALL.
    No. 53865.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1977.

      Will Gray, Houston, for appellant.
    Jim D. Vollers, State’s Atty., and David S. MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

This is a post-conviction writ of habeas corpus brought under the provisions of Art. 11.07, V.A.C.C.P. by the petitioner, an inmate of the Texas Department of Corrections.

Petitioner was convicted on March 25, 1952, of the primary offense of murder without malice in the 70th Judicial District Court of Ector County and his punishment, enhanced under the provisions of Article 63, V.A.P.C., was assessed at life.

Upon a hearing in the convicting court following the filing of petitioner’s application for habeas corpus, the court found that the stipulation of evidence entered into by the petitioner and the State supported the petitioner’s allegation that in one of the two prior convictions used for enhancement, Cause No. 818 in the 106th Judicial District Court of Lynn County, wherein petitioner was convicted of felony theft on November 14, 1942, petitioner was without counsel at the time of trial, was indigent and had not waived the right to counsel.

In addition to the stipulation of the State and petitioner, the record reflects that the records relating to the said Lynn County conviction were before the court and lend support to the court’s findings.

We conclude that the findings of the trial court that “The conviction in Cause No. 818 was constitutionally void because of the absence of counsel and could not be used for enhancement” is supported by the evidence and the decisions of the United States Supreme Court and this Court.

Prior convictions cannot be used for enhancement purposes where such convictions are subsequently rendered void upon a determination that petitioner was denied the Sixth Amendment right to counsel. See Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Ex parte Swinney, Tex.Cr.App., 499 S.W.2d 101; Ex parte Cooper, Tex.Cr.App., 493 S.W.2d 810.

The State urges that appellant is not entitled to relief because the stipulation of the petitioner herein reflects that petitioner was convicted (in a case not used for enhancement) in Cause No. 1120 in Dawson County on December 13,1940, when he was sixteen years of age and was represented by court-appointed counsel on such occasion. The State contends that where an accused’s sentence could have been enhanced to life by another prior valid felony conviction, any error in using an invalid one is deemed harmless in post-conviction habeas corpus proceedings. In support of this argument, the State cites two decisions of the Fifth Circuit, Webster v. Estelle, 505 F.2d 926 (1974) and Cline v. United States, 453 F.2d 873 (1972), which contain statements that appear to support this position.

In White v. State, 500 S.W.2d 529, this Court stated that the holding in Moore v. State, 154 Tex.Cr.R. 307, 227 S.W.2d 219 “is still applicable in that to be used for enhancement of punishment under Art. 63, Y.A.P.C., the prior convictions must be alleged.” We decline to hold that the error in using a void prior conviction for enhancement is rendered harmless where the evidence reflects that there is another prior conviction which could have been used.

It becomes unnecessary for us to decide whether the primary offense of murder without malice and the remaining offense used for enhancement, robbery by assault, are like offenses under Art. 62, V.A.P.C., since the maximum penalty for the offense of murder without malice was five years. Art. 1257b, V.A.P.C. (1925). Petitioner has served in excess of the maximum punishment of five years and is entitled to release.

The relief under this writ is granted, and petitioner is ordered released from further confinement under said life sentence.

Opinion approved by the Court.

      . Since petitioner’s trial occurred prior to the Supreme Court decision in Burgett v. Texas, supra, no claim can be made that petitioner had waived this contention by failing to object. See Ex parte Casarez, Tex.Cr.App., 508 S.W.2d 620; Ex parte Flores, Tex.Cr.App., 537 S.W.2d 458.

      . The stipulation of the State and petitioner recites that petitioner “has served in excess of seventeen (17) years (flat time) and has additional credit for a substantial number of ‘good time’ years.” The trial court in its findings concluded that petitioner “has served far in excess of his term, he is entitled to his immediate release.”


author: BROWN, Commissioner.

text:
    Ex parte Marshall BRADLEY.
    No. 53483.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1977.
    Eugene T. McLaughlin, Houston, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is a post conviction writ of habeas corpus proceeding. See Article 11.07, V.A. C.C.P.

The petitioner, who was convicted of the offense of theft and whose punishment was assessed at ten years, asserts that he was denied the right of appeal. After petitioner was adjudged guilty, a motion for new trial was timely filed. Five days thereafter and while the motion for new trial was still pending, petitioner was sentenced. Because the sentence was untimely and improperly pronounced, the court re-sentenced petitioner on November 6,1975. On appeal, since the record did not reflect that notice of appeal was given, the appeal was dismissed by a per curiam opinion dated December 17,1975 in our cause number 51,435.

We now have before us the court reporter’s transcript of the re-sentencing hearing on November 6, 1975. At that hearing petitioner’s trial counsel testified that petitioner had advised him after trial that he wanted to appeal and had employed a Houston attorney to act as appellate counsel. The Houston attorney testified that he arranged for the setting and execution of an appeal bond which was approved by the trial court. He also ordered from the district clerk a transcript of the matters on file in the case. When these matters were not ready, he obtained from the trial court an extension of time within which to file the record for purposes of appeal. From the testimony adduced on the resen-tencing hearing we can only conclude that trial counsel when notified that appellate counsel had been employed assumed that appellate counsel would give notice of appeal when the motion for new trial had been disposed of, and that appellate counsel who was employed to prepare the appellate brief assumed that trial counsel had given notice of appeal. As a result of this confusion neither attorney gave formal notice of appeal. Just a moment before petitioner was re-sentenced appellate counsel requested the court in the interest of justice to allow appellant to proceed with his appeal. Since this statement was made prior to the pronouncement of a valid sentence, it was premature and could not be deemed a valid notice of appeal. However, after petitioner was re-sentenced he took the stand and testified that it was always his desire to appeal and that he had hired lawyers for that purpose and assumed that his lawyers would take care of getting his case properly appealed. The re-sentencing hearing was then terminated and still no timely formal notice of appeal had been given. However, it is clear from the record that petitioner desired to appeal and that the trial court was fully aware of this desire.

Art. 44.08(a), Vernon’s Ann.C.C.P., provides:

“It shall be necessary for defendant, as a condition of perfecting an appeal to the Court of Criminal Appeals, to give notice of appeal. This notice may be given orally in open court or may be in writing filed with the clerk. Such notice shall be sufficient if it shows the desire of defendant to appeal from the conviction to the Court of Criminal Appeals.” (Emphasis added).

As Presiding Judge John F. Onion, Jr., stated in his special commentary to the above article: “The method of giving notice of appeal has been liberalized and made less technical . . . ”

It is obvious that petitioner’s desire for appellate review has been frustrated, and that he is the victim of judicial error resulting from an initially void sentence and by the lack of proper action on the part of his retained attorney which has so far denied him of a valuable right.

Petitioner’s prayer for relief is granted and he is hereby granted an out of time appeal. The trial court is directed to proceed with petitioner’s appeal in accordance with Art. 40.09, Vernon’s Ann.C.C.P.

Opinion approved by the Court.


text:
    Henry Edward JAMES, Appellant, v. The STATE of Texas, Appellee.
    No. 52416.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1977.

      M. Bruce Fort, Texas City, for appellant.
    Ronald L. Wilson, Dist. Atty. and James F. Hury, Asst. Dist. Atty., Galveston, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for aggravated rape. Trial was before a jury and punishment, enhanced by prior convictions, was set at life in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. Briefly stated, the record reflects the complaining witness’ testimony that appellant abducted her from the parking area near her apartment, beat her with a flashlight, forced her to commit an act of oral sodomy on him, and then forced her at gunpoint to submit to vaginal and anal intercourse under threat of death.

In his first ground of error appellant contends that the trial court erred in refusing to grant a change of venue. It appears from the record of the venue hearing that appellant was charged with three other rapes and one attempted rape. He was convicted of the attempted rape in April, 1975, preceding this June trial for rape. Appellant introduced the affidavits of several Galveston newspaper reporters, radio newsmen, and attorneys who expressed their opinion that appellant could not receive a fair trial in Galveston County. Appellant also introduced more than thirty newspaper clippings. Most of these dealt with a series of rapes occurring over an extended period of time in the Galveston area, but only a dozen even mentioned appellant by name. Some of the clippings were in connection with appellant’s trial for attempted rape. It was also developed that one of the radio newsmen had dubbed appellant the “East End Rapist,” although it appears from the record and the clippings that the term was not widely used.

The State presented controverting affidavits and testimony of witnesses who expressed their opinion that appellant could receive a fair trial in Galveston County. Also in the record is the list of veniremen who were individually questioned about the issue of prior knowledge about appellant. Thirty-seven veniremen were examined and only four were excused because they had read or heard something about appellant. Pour more veniremen stated that they “vaguely remember” or “might have read” something about appellant but that this would have no effect on their deliberations.

The applicant for a change of venue has a heavy burden of proving the existence of such prejudice in the community that the likelihood of obtaining a fair and impartial jury is doubtful. Absent such a showing, the trial judge is within the limits of his discretion in denying the change of venue. Garcia v. State, 537 S.W.2d 930 (Tex.Cr.App.1976); Mitchell v. State, 524 S.W.2d 510 (Tex.Cr.App.1975).

Having considered the evidence introduced at the pretrial hearing, examined the contents of the newspaper and radio coverage, and having read the voir dire of the jury panel and noticed the lack of difficulty in securing a qualified jury, we conclude that the trial court did not abuse its discretion in overruling appellant’s motion for a change of venue. Garcia v. State, supra; Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975).

Appellant’s first ground of error is overruled.

In his second ground of error appellant contends that the trial court erred in overruling his motion to take the depositions of several witnesses for the State. Appellant’s motion and accompanying affidavit assert that the witnesses were “material” and that they refused to talk with appellant’s attorney or with an investigator working in appellant’s behalf.

Under Article 39.02, Vernon’s Ann. C.C.P., a defendant in a criminal case may take a deposition if he shows good reason at a hearing before the court and the court determines such reason exists. McKinney v. State, 505 S.W.2d 536 (Tex.Cr.App.1974); Martin v. State, 422 S.W.2d 731 (Tex.Cr.App.1967).

In McKinney v. State, supra, it was said that:

“The trial court has wide discretion in either granting or denying a motion for taking a deposition, Aguilar v. State, 468 S.W.2d 75 (Tex.Cr.App.1971); Beard v. State, 481 S.W.2d 875 (Tex.Cr.App.1972), and the fact that witnesses of whom depositions are requested are adverse witnesses is not enough standing alone to show an abuse of discretion in denying the motion to take a deposition. Tucker v. State, 461 S.W.2d 630 (Tex.Cr.App.1970), cert. denied, 403 U.S. 919, 91 S.Ct. 2230, 29 L.Ed.2d 696. (1971).
“For the appellate court to hold that the trial court abused its discretion in declining to permit depositions to be taken, there must be a showing that the defendant was injured by such action. Beshears v. State, 461 S.W.2d 122 (Tex.Cr.App.1970).”

Appellant has not met this burden in the instant case. The trial court did not abuse its discretion in denying appellant’s motion to take depositions.

Appellant’s second ground of error is overruled.

In his third ground of error appellant contends that the trial court abused its discretion in refusing to take judicial notice of the time the moon rose and set on the night the prosecutrix was raped.

The prosecutrix testified that the rape occurred over a twenty to thirty minute period beginning at approximately 11:30 p.m. on December 17, 1974. It was developed that the prosecutrix was blind in one eye, but that she first got a look at her assailant by the light of a street light as they walked down an alley. She then stated that she was able to see his face from a very close distance when he was on top of her. It was established that she had picked appellant out of a lineup three weeks after the rape. The prosecutrix identified appellant in court as the man who raped her and stated that her identification was based on her having seen him on the night she was raped.

On cross-examination she was asked about the lighting conditions in the alley where the rape took place, and she stated that there was sufficient light. She was asked whether the moon was full and she stated that it was. She later admitted that she could not recall what phase the moon was in at the time but that there was enough light to see that appellant was the man who raped her. Appellant then requested the court to take judicial knowledge of the rising and setting of the moon on the night in question. The court refused the request and for purposes of perfecting a bill of exception appellant later introduced a copy of the Texas Almanac which indicated that the moon was between the new moon phase and the first quarter phase and that on December 17 the moon rose at 10:00 a.m. and set at 9:23 p.m. Appellant contends that the court’s refusal to take judicial notice of that fact deprived him of the opportunity to impeach the identification testimony of the prosecutrix.

In Parish v. State, 523 S.W.2d 665 (Tex.Cr.App.1975) we held that this Court could take judicial notice of the time the sun rose and set on the day of a burglary for purposes of determining if such burglary was committed in the “daytime.” See also Pierce v. State, 401 S.W.2d 238 (Tex.Cr.App.1966). It has also been the rule that a trial court can take judicial notice of the rising and setting of the sun. Converse v. State, 141 Tex.Cr.R. 273, 148 S.W.2d 424 (1941).

Although this Court has not precisely said so, it has long been the rule in civil courts of this State that the trial court has wide discretion as to what facts may be judicially noticed. Skinner v. HCC Credit Company of Arlington, Inc., 498 S.W.2d 708 (Tex.Civ.App. — Port Worth, 1973, no writ). Within the limits of common sense and common knowledge, that rule is applicable in criminal trials as well.

The whole purpose of the rule of judicial notice is one of convenience to save time in the trial by eliminating the need for proof of facts about which there is really no controversy. If, however, the trial court, in its discretion, chooses not to take judicial notice of a particular fact, nothing in the rule of judicial notice forbids a litigant from establishing that fact by other competent proof. To justify a reversal in this type of situation, we think an accused must show first that the trial court abused its discretion by failing to take judicial notice of a fact; second, that the accused was prohibited by the trial court from establishing that fact by other competent evidence; and third, that because of its relevance to a material issue, the exclusion of such fact resulted in harm to the accused.

In the instant ease, appellant has not met this burden. The trial court refused to take judicial notice of the movements of the moon because, in the court’s words, it “had no knowledge” of those facts. The appellant then offered the testimony of his own private investigator who testified about the lighting conditions in the alley. An attempt was then made to qualify the investigator as an expert in the movements of the sun and moon because he had apparently been a junior high school science teacher at one time. The trial court sustained the State’s objection to the investigator’s interpretation of the almanac table referring to the movements of the moon because he had not been qualified as an expert and because he had not prepared the table and because there was no showing that the table referred to the Galveston area.

Although we think that the trial court, in its discretion, could have taken judicial notice of the movements of the moon on the night in question, especially in light of Parish v. State, supra, we find that appellant has not shown that he was denied the opportunity to establish the movements of the moon by other competent meteorological or astronomical evidence. Moreover, considering all of the prosecutrix’ testimony concerning her seeing appellant by the light from the street light as she and appellant walked into the alley and her close proximity to him during the act, we find that no harm was shown by the court’s refusal to judicially notice the movements of the moon.

Appellant’s third ground of error is overruled.

In his fourth ground of error appellant contends that the trial court erred in refusing to permit him to cross-examine the prosecutrix about her prior mental condition.

During cross-examination of the prosecu-trix, appellant’s counsel asked her whether or not she had been “quite sick” in the past. After a conference at the bench outside the hearing of the court reporter, the court sustained the State’s objection to this question. Appellant’s counsel then asked the court, in the presence of the jury and for the record, if he was being “instructed not to go into the psychiatric matter.” The court then called another conference at the bench after which he announced to the jury that the purpose of his conference with counsel was to inform them that no psychiatric testimony would be permitted. Appellant’s counsel then made the following offer of proof in an effort to perfect a bill of exception in accordance with Article 40.09, Sec. 6(d)(1), Vernon’s Ann.C.C.P.:

“MR. FORT (defense counsel): I object to the Court’s ruling. I believe it is relevant to the witness’s identification testimony — that type of illness. She has hysterics according to testimony I plan to present which goes to the weight of the identification testimony; that this type of testimony tends to embellish the occurrence that happened; that type of person who once having tentatively identified someone would tend to embellish upon that. I believe I can show, I certainly may be able to show later on, not by this witness in her testimony as to what she said one time and the conclusions on her part. (Emphasis added).”

The State later filed a motion in limine prohibiting impeachment of its witness by psychiatric testimony. Appellant later introduced, for purposes of perfecting his bill of exception, the reports of two psychiatric examinations of the prosecutrix conducted in 1965 and 1972. The reports reflect that the prosecutrix was an immature person suffering from “transient psychoses” in a “grossly hysterical infantile personality.”

We find that appellant has not sufficiently complied with the provisions of Article 40.09, Sec. 6(d)(1), supra, with respect to the testimony which the prosecu-trix herself would have given had the court permitted appellant to cross-examine her concerning her prior mental condition. Neither appellant’s proffer of proof, set out above, nor the psychiatric reports included in his formal bill of exception reflect the response which the prosecutrix would have given. Appellant made no effort to cross-examine her out of the presence of the jury for purposes of perfecting his bill. Absent a showing of what the prosecutrix’ excluded testimony would have been, or an offer of proof to the court as to what her answers would have been, nothing is presented for review. Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974); Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975).

An examination of appellant’s proffer of proof indicates that it was his intention to bring on other witnesses who would testify as to the prosecutrix’ prior mental and emotional condition. This is also reflected by appellant’s formal bill of exception which includes the psychiatric reports. We have previously held that the testimony of psychiatric experts is not admissible for purposes of impeachment. Hopkins v. State, 480 S.W.2d 212 (Tex.Cr.App.1972). Therefore, the offer of such inadmissible evidence would not be sufficient to perfect a bill of exception concerning the excluded testimony of the prosecutrix.

Appellant’s fourth ground of error is overruled.

In his fifth ground of error, appellant contends that the State suppressed evidence concerning the prosecutrix’ prior mental condition. Included in appellant’s timely-filed motion for discovery, granted by the trial court, was a request for “Any evidence as to the competency of witnesses called by the State such as a history of mental illness or psychiatric care which the State may have.” At the pretrial hearing on this motion the State indicated it had no such evidence. Appellant contends that the State’s motion in limine filed on June 11, 1975 indicates the State had knowledge of the prosecutrix’ mental condition. This motion was filed on the day following appellant’s attempted cross-examination of the prosecutrix concerning her mental condition.

As we set out above in ground of error four, this evidence was inadmissible for the purpose intended by appellant. Moreover, there is nothing in the record to indicate that the State had knowledge of the prosecutrix’ prior mental condition before that issue was raised by appellant during trial. It appears that appellant had acquired knowledge of the prosecutrix’ mental history by independent means at some time prior to trial.

This Court has held that one cannot complain of suppression of evidence by the prosecution if the facts were already within his knowledge. Smith v. State, 541 S.W.2d 831 (Tex.Cr.App.1976); Chappell v. State, 489 S.W.2d 923 (Tex.Cr.App.1973). In Means v. State, 429 S.W.2d 490 (Tex.Cr.App.1968), this Court required that before one could obtain reversal on grounds of suppression of evidence he would have to make some showing at the trial that he did not know about the evidence allegedly suppressed.

In the absence of some showing that the State knowingly suppressed evidence, favorable to the defense, of which appellant was unaware, there is no error.

Appellant’s fifth ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . Appellant should have been permitted to prove this, but reversible error is not shown because there was evidence that she had seen appellant under a street light.


text:
    David EANES, Appellant, v. The STATE of Texas, Appellee.
    No. 52559.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1977.

      Stanley Kacir, Temple, for appellant.
    Joe Carroll, Dist. Atty. and Paul R. Reagan, Asst. Dist. Atty., Belton, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal of a conviction of assault wherein the jury assessed punishment at a probated one year jail term and an unprobated $1,000.00 fine.

The record shows without dispute that at about 12:30 a.m. on June 23,1974, appellant and the injured party, Willie Kopriva, accompanied by two of his brothers, were in attendance at a public dance hall in Bell County. Appellant testified that at about said time he was walking down the side of said dance hall when Willie Kopriva, the alleged assaultee, suddenly was pushing him out into the middle of the dance floor and hollering at him to quit coming by his table, that Willie’s two brothers, Walter and Jerry, jumped up and started toward him, that Jerry was getting a metal folding chair and folded same, that he told Willie two or three times he didn’t want any trouble and then the last time Willie pushed him he hit him with the beer bottle, that he struck Willie only after he saw his brother getting into the act and as a last resort, and that he felt there was apparent danger to himself at the time. The evidence further showed that said Willie Kopriva was taken to the emergency room of Scott and White Hospital in Temple, Texas, where he was found to have sustained a four centimeter transverse laceration of the left cheek and a small laceration of the base of the nose as the result of being struck in the face with said beer bottle.

Thus, the evidence clearly raised the issue of self defense which was thoroughly charged by the court and the issue of whether the assault resulted in serious bodily injury so as to constitute the alleged offense of aggravated assault.

The failure of the indictment to allege the manner and means used to commit the assault was raised at the trial level solely through a motion for an instructed verdict. Such failure does not constitute a failure to allege an element of the offense, but relates only to the certainty and definiteness constitutionally and statutorily- required to enable the defendant to reasonably understand the nature and cause of the accusation against him. Appellant’s failure to raise said question by timely motion to quash constituted a waiver thereof. Thornton v. State, Tex.Cr.App., 529 S.W.2d 539; Cox v. State, Tex.Cr.App., 523 S.W.2d 695; Terry v. State, Tex.Cr.App., 517 S.W.2d 554.

Appellant’s contention that the court erred in failing to respond to his objection to the court’s failure to charge under V.T.C.A., Penal Code, Sec. 22.01(a)(3), the causing of physical contact when one knows or should reasonably believe that the other will regard the contact as offensive and provocative, is without merit for the reason that the appellant specifically testified that he deliberately hit the injured party with the beer bottle, thus eliminating any issue as to V.T.C.A., Penal Code, See. 22.01(a)(2).

Appellant’s contention that the witnesses Chub and Kopriva were disqualified from testifying as to the reputation of appellant upon the grounds that their said testimony was based on specific acts instead of report is contradicted by the record. Chub testified that he, as school principal, based his testimony on having heard discussions by other students and teachers pertaining to appellant and threats made to other students by him. Gene Kopriva testified that people had discussed appellant and his activities with him and that he knew his general reputation as a peaceable and law abiding citizen in the community.

The court erroneously, in defining “assault” for the jury in its charge, defined same as “intentionally, knowingly or recklessly causing bodily injury to another”. Appellant’s objection to the inclusion of the term “recklessly” upon the grounds that reckless conduct was not alleged in the indictment specifically called this error to the attention of the trial court. In applying the law to the facts, the court instructed the jury to find whether appellant “did then and there knowingly and intentionally cause serious bodily injury to another” as alleged in the indictment. Cf. Dowden v. State, Tex.Cr.App., 537 S.W.2d 5. Reversible error is not here presented. Grudzien v. State, Tex.Cr.App., 493 S.W.2d 827; Martinez v. State, 157 Tex.Cr.R. 603, 252 S.W.2d 186.

Walter Kopriva, a State witness, testified on direct examination that after said incident he went to the hospital to check on his brother, after which he returned at approximately 4:00 a.m. to said dance hall to get the injured party’s pickup. The attorney for the State then elicited the following testimony from said witness:

“Q Was there anything unusual about the pick-up?
A Yes, sir. The left side of the windshield was busted and had blood still on the windshield and pieces of embedded beer bottle on the left side of the windshield, and all the people at the shop saw it and Joe Thurdy (phonetic) from Cameron saw it when he came to visit the next day.”

On cross examination Kopriva testified as follows:

“Q You mentioned when you got back to the hall that Willie’s pick-up had a broken windshield?
A Yes, sir.
Q And was there any way for you to know what time of the day or night that that windshield had been broken?
A No, sir.
* * * * * *
Q Now, you are not saying that David Eanes broke your windshield?
A I am not saying that David Eanes broke it. I am saying that it got broke. I would have liked to have that blood analyzed. ’
* * * * * *
Q What has that got to do with this fight?
A I want to know who broke that windshield since his name was Kopriva’s Cabinet all over the side of that truck. It was very easy to identify Willie’s truck. It was standing out there like a sore thumb.”

Appellant’s attorney objected to the testimony elicited on direct examination upon the ground that same was hearsay and extraneous matter, which objection was overruled by the court. The jury in deciding the close issue of self defense, which was extensively charged by the trial court, would undoubtedly consider whether appellant’s physical actions were the result of fear and apprehension or the result of a vicious, malicious and hate-consumed mind to be of vital importance in said decision. On said issue, the prejudicial impact of said testimony is certain and would be difficult to overstate. If there was evidence tending to prove that appellant committed said vicious, destructive act toward the injured party’s property shortly after their altercation, such would be highly relevant testimony to show his actions prior thereto to have been impelled by a malevolent state of mind instead of fear as contended by the appellant on his theory of self defense, Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97; but, as the State correctly admits, there is no evidence proving or tending to prove that the appellant had any connection with said act of criminal mischief. This Court in Landers v. State, 519 S.W.2d 115, 120, stated the applicable law as follows:

“ ‘It must be remembered, however, that even though evidence of another crime may be relevant to the instant proceeding, such evidence should not be admitted unless the commission of the other crime is clearly proved and the accused is shown to have been its perpetrator.’ 23 Tex. Jur.2d, Evidence, Sec. 195, p. 302 (Emphasis supplied)
1 Branch’s Ann.P.C., 2d ed., Sec. 188, p. 204, makes much the same point. ‘It is error to admit evidence of another offense when defendant is not shown to be the party guilty of the offense.’ (Numerous cases cited) (Emphasis supplied)
And in Tomlinson v. State, 422 S.W.2d 474 (Tex.Cr.App.1967), this court, speaking through Judge Morrison, said that ‘no extraneous offense should be offered unless the State is prepared to prove that the accused committed the same.’ ”

As to the prejudice generated by such testimony, we consider Ayers v. State, 115 Tex.Cr.R. 638, 27 S.W.2d 540, in point. In said case the State brought out before the jury the fact that it had subpoenaed and issued an attachment for a witness to the alleged sale of whiskey by the defendant and that the sheriff had been unable to locate said witness. This Court held that there being no attempt made or evidence offered to show that defendant was in any way connected with or instrumental in the absence of said witness, the implication that would nevertheless be made by the jury against the defendant was prejudicial error. The injection before the jury of said highly prejudicial matter in this case is far more destructive of the appellant’s rights and less justifiable than said improper injection in Ayers, since it could at least be reasonably contended in Ayers that proof of said fact was for the legitimate purpose of explaining the State’s failure to produce said witness when the burden of proof is upon it, but in this case there can be no reasonable contention made that any legitimate purpose was accomplished or intended by said proof.

The State contends that appellant waived said error by cross examining the witness in detail in an effort to prove to the jury that there was no evidence that the appellant committed said act of criminal mischief. This Court has repeatedly held that the action of an accused’s counsel in seeking by cross examination to lessen the prejudicial effect of improperly admitted evidence does not constitute a waiver of his objection thereto. Trollinger v. State, 153 Tex.Cr.R. 364, 219 S.W.2d 1018; Beachem v. State, 144 Tex.Cr.R. 272, 162 S.W.2d 706; Willoughby v. State, 87 Tex.Cr.R. 40, 219 S.W. 468. See also Patterson v. State, 458 S.W.2d 658, at footnote two.

We also conclude that by reason of the form of the question, “Was there anything unusual about the pickup?” appellant’s earliest reasonable opportunity to object to the placing of said prejudicial facts before the jury was immediately after the witness answered thereto and thrust said prejudicial matter into the jury box. This, appellant’s counsel timely did.

We do not consider the fact that appellant’s counsel thereafter engaged in a brief argument to the court, apparently intending to express his disbelief that the court intended to permit testimony as to what was later said by other persons at a shop, in any way impaired the validity of his objection that said criminal mischief against the injured party’s property was extraneous matter.

Since appellant’s other points are not likely to arise upon another trial, we omit their discussion.

For the error stated, the judgment is reversed and the cause remanded.

DOUGLAS, Judge, concurs in the results.


text:
    Ex parte William R. SCHROEDER.
    No. 53670.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1977.
    J. R. Musslewhite, on appeal only, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and William E. Taylor, III, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

This is an appeal from an order denying reduction in bail pending appeal.

The record reflects that appellant was convicted on June 18,1976, of the offense of delivery of heroin and punishment was assessed at five years. On July 21, 1976, sentence was imposed and notice of appeal was given. Bond was set by the court at $15,000 pending appeal.

The only testimony at the hearing on bail reduction pending appeal came from appellant, who testified (1) that he had no money or property; (2) that he had no funds with which to hire a lawyer or pay for a transcript for appeal and had filed a pauper’s oath; (3) that his mother had “indicated” to him that she and his father could make a bond “somewhere around $5,000”; (4) that bond prior to conviction had been $10,000 and that such bond had been made; (5) that he had always appeared in court, “at least five or six times,” when this case was pending; (6) that he had never before been convicted of a felony; and (7) that he had never been involved in a bond forfeiture.

In view of all the circumstances, we conclude that the amount of the appeal bond as set is excessive, and we reduce the bail to $7,500.00.

It is so ordered.

Opinion approved by the Court.

ONION, P. J., and DOUGLAS, J., dissent.


author: DALLY, Commissioner.

text:
    Kenneth Smith TAVE, Appellant, v. The STATE of Texas, Appellee.
    No. 53615.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1977.
    Rex Kirby, Tyler, for appellant.
    A. D. Clark, III and George M. Conner, III, Asst. Dist. Attys., Tyler, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

The appellant was convicted for driving a motor vehicle while his operator’s license was suspended. The punishment assessed by the court, after the appellant entered a plea of guilty, was confinement in the County Jail for 72 hours and a fine of $50.00.

The appellant asserts that the information on which he was prosecuted was fatally defective because it failed to allege whether his operator’s license was suspended under the provisions of Article 6687b or Article 6701h of V.A.C.S.

The information, in pertinent part, alleges that the appellant “. . . did then and there unlawfully drive and operate a motor vehicle upon a public highway, there situate, when the Texas Operator’s License of the said Kenneth Smith Tave, was suspended; against the peace and dignity of the State.”

While similar pleading was held proper in Rushing v. State, 161 Tex.Cr.R. 334, 277 S.W.2d 104 (1955); Gregg v. State, 170 Tex.Cr.R. 202, 339 S.W.2d 539 (1960), it was held vulnerable to a timely motion to quash in Adams v. State, 376 S.W.2d 832 (Tex.Cr.App.1964); Cox v. State, 380 S.W.2d 121 (Tex.Cr.App.1964), and Deramee v. State, 379 S.W.2d 908 (Tex.Cr.App.1964). It appears that this Court has not yet determined whether such a pleading is fundamentally defective when a timely motion to quash the pleading had not been filed.

Article 6687b, Sec. 22(b), V.A.C.S., provides for the suspension of an operator’s license for numerous reasons; included are suspension for habitual violation of the less serious traffic laws and automatic suspension for more serious violations of traffic laws.

Section 34 of Article 6687b, V.A.C.S., provides:

“Any person whose operator’s commercial operator’s or chauffeur’s license or driving privilege as a non-resident has been cancelled, suspended, or revoked as provided in this Act, and who drives any motor vehicle upon the highways of this State while such license or privilege is cancelled, suspended, or revoked is guilty of a misdemeanor and upon conviction shall be punished by fine of not less than Twenty-five Dollars. ($25) nor more than Five Hundred Dollars ($500), and, in addition, there shall be imposed a sentence of imprisonment of not less than seventy-two (72) hours nor more than six (6) months.”

Article 6701h, V.A.C.S., The Safety Responsibility Act, provides in Sections 5, 7, 13, and 14 for the suspension of Texas Operator’s Licenses for the failure to comply with the Act.

Section 32(c) provides:
“Any person whose license or registration or non-resident’s operating privilege has been suspended or revoked under this Act and who, during such suspension or revocation drives any motor vehicle upon any highway or knowingly permits any motor vehicle owned by such person to be operated by another upon any highway, except as permitted under this Act, shall be fined not more than Five Hundred Dollars ($500) or imprisoned not exceeding six (6) months, or both.”

In Adams v. State, supra, the appellant asserted that Articles 6687b and 6701h, V.A. C.S. provided different penalties for the same offense of driving a motor vehicle while operator’s license is suspended; therefore, he urged both provisions were unconstitutional. This Court overruled that contention and observed that since a defendant’s operator’s license is suspended for different reasons under the provisions of these statutes these violations constitute separate offenses. Cf. Deramee v. State, 372 S.W.2d 701 (Tex.Cr.App.1964). If the violations of these statutes are separate offenses it would appear to be necessary to designate the statute under which a defendant is prosecuted. Furthermore, it appears that it would be necessary to prove under which statute a defendant was being prosecuted so that the judge would know which penalty to apply or so he could instruct a jury as to the penalty which would apply. Article 21.03, V.A.C.C.P. provides that everything should be stated in an indictment which is necessary to be proved and Article 21.23, V.A.C.C.P. provides that the rules with respect to allegations is an indictment and the certainty required apply also to an information.

We hold that in the prosecution of a defendant for driving a motor vehicle while his operator’s license is suspended it is necessary to allege whether his operator’s license was suspended under the provisions of Article 6687b or 6701h, V.A.C.S. The failure to do so renders an information fatally defective.

The judgment is reversed and the complaint and information are ordered dismissed.

Opinion approved by the Court.

DOUGLAS, J., dissents because there was not a motion to set aside or exception to the information.


author: DALLY, Commissioner. DOUGLAS, Judge,

text:
    Meryl Douglas HANNA, Appellant, v. The STATE of Texas, Appellee.
    No. 52400.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1977.

      John G. Hyde, Midland, for appellant.
    James A. Mashburn, Dist. Atty., Jack K. (Rusty) Wall, Asst. Dist. Atty., Midland, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of theft of property of the value of over $200.00; the punishment, which is enhanced by a prior felony conviction, is imprisonment for 15 years.

The appellant asserts that the evidence is insufficient to sustain his conviction and that the trial court improperly submitted a charge on the “law of principals” and conspiracy. We first consider the appellant’s ground of error concerning the insufficiency of the evidence. It was alleged in the indictment that on July 14,1975, the appellant stole one 1974 Chevrolet automobile of a value of over $200.00 from George Hucka-bay.

George Huckabay, the owner of Hucka-bay Chevrolet Co., testified he did not give consent for the appellant to take the automobile which had been stolen.

Leburn T., also known as “Sonny” Ingram, the used car manager for Huckabay Chevrolet Co., testified that on July 14, 1975, a 1974 two door Chevrolet Nova automobile was missing from the Huckabay lot. The missing automobile was bronze or brown and had a value of $2,650.00. Ingram did not give consent for the appellant to take the automobile. He reported that the automobile had been stolen to an officer of the Midland Police Department whose name he did not remember. He gave the officer to whom he reported the loss a full description of the missing automobile including the vehicle identification number and license registration number. However, Ingram in his testimony did not say what the vehicle identification numbers and the registration license plate numbers were that he gave the officer. The missing automobile was returned to the Huckabay lot later in the afternoon on July 14, 1975. When returned, the automobile had different license plates and it had some “striped tapes down it.”

Detective Sergeant Jim Colburn of the Midland Police Department testified that on July 14, 1975, he received from Sonny Ingram, manager of the Huckabay Chevrolet Co., a report that an automobile had been stolen from the Huckabay lot; Ingram gave Colburn the full description of the car. Colburn passed this information on to the Odessa Police Department at about 1:00 or 1:30 p.m. Later that day Colburn said he helped return the stolen automobile from Odessa to the Huckabay lot.

Odessa Police Officer Frederick C. Sellers received a radio message on July 14, 1975, about a purported theft of an automobile in Midland County. He acted upon the information he received by going to a service station where he saw the appellant in the seat of an automobile attempting to repair a citizens band radio. Sellers said the automobile fit the description of the automobile about which he had received information but he did not in his testimony describe the automobile in which he found the appellant. The appellant told the officer his name and exhibited to the officer for purposes of identification a traffic ticket issued to him earlier in the day. Sellers arrested the appellant. The appellant told Sellers the car belonged to someone by the name of Day.

Jack Smither, a highway patrolman with the Department of Public Safety, on July 14, 1975, at about 12:25 p.m. while he was “working radar” on the Northwest Loop around Odessa, stopped an automobile driven by the appellant. He testified that it was a 1974 two door Chevrolet Nova.

The appellant did not testify and offered no evidence. All of the evidence of probative value supporting the conviction has been summarized; it has been shorn of the hearsay testimony which is without probative value. Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.1975); Mendoza v. State, 522 S.W.2d 898 (Tex.Cr.App.1975); Ex parte Thrash, 167 Tex.Cr.R. 409, 320 S.W.2d 357 (1959); 24 Tex.Jur.2d 51, Evidence, Section 557. We cannot conclude that the evidence shows beyond a reasonable doubt that the car which the appellant was driving when he was stopped by Patrolman Smither was the same ear which had been taken from the Huckabay lot. There is no evidence that it was even the same color. We cannot determine that the car in which the appellant was arrested by Officer Sellers was the car taken from the Hucka-bay lot. Sellers gave hearsay testimony of the description of the automobile which was reported stolen; however, since hearsay evidence has been held not to have probative value, Ex parte Martinez, supra; Mendoza v. State, supra; Thrash v. State, supra; 24 Tex.Jur.2d 51, Evidence, Section 557, we may not consider this testimony in support of the conviction. Sellers did not describe the vehicle in which he found the appellant except to say it fit the description he received on the radio. There is no evidence that the car which Sergeant Colburn helped return from Odessa was the car in which the appellant was arrested or the car which the appellant was driving when he was stopped by Patrolman Smither. This being the state of the record, we have no alternative but to find the evidence insufficient to support the conviction.

The appellant also contends that the trial court improperly submitted to the jury a charge on “the law of principals” and on the law of conspiracy. In view of our disposition of this appeal we need not decide whether it was harmless error in the circumstances of this case to charge on the law of criminal responsibility for the act of another and the law of conspiracy; however, we agree that the evidence does not raise these issues; in the event of another trial, if the evidence is of the same nature, the complained of part of the charge should not be submitted to the jury.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, Judge,

dissenting.

“Such is the irresistible nature of truth,” said Thomas Paine, “that all it asks, and all it wants, is the liberty of appearing.” That truth be given the “liberty of appearing” is essential to the administration of justice. Accordingly, because this Court follows a rule that excludes evidence bearing directly on the truth to be determined, and because that rule lacks a sound basis in policy or logic, I dissent.

In the instant case the automobile, with the license number and the vehicle identification number and its description, was reported stolen to the Midland Police Department. Officer Sellers saw a vehicle that matched the description of the stolen vehicle. Appellant was inside the automobile repairing a citizens band radio. Sellers further related:

“Well, I checked with the Defendant, and asked him what his name was. He identified hisself (sic). Also he showed me a traffic citation that was issued earlier in the day, for identification. Also I checked the vehicle identification number, and verified it with headquarters that this was the vehicle they were looking for.”

The vehicle was impounded at Permian Wrecker. The car was returned to Hueka-bay Chevrolet Company the same day that it was stolen.

The above testimony was admitted without objection. The majority, adhering to the rule that hearsay evidence has no probative value, disregards the officer’s testimony. As a result, the evidence is found insufficient to support the conviction.

The rule that hearsay evidence has no probative force and is, thus, no evidence whatsoever, is followed in Texas. 1 McCormick and Ray, Texas Law of Evidence, Section 31 (2nd Ed. 1956). All other American jurisdictions, with the exception of Georgia, accept the probative value of hearsay when it is admitted without objection. See An-not., 79 A.L.R.2d 890.

The basic fallacy of the Texas rule is the concept that because hearsay is inadmissible it is thereby “incompetent” and “totally lacking in probative force.” See Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.1975); Mendoza v. State, 522 S.W.2d 898 (Tex.Cr.App.1975); and 24 Tex.Jur.2d 51, Evidence, Section 557. One commentator has recently examined this fallacy and repudiated the rule.

The rule is untenable; hearsay that is relevant has probative value. The commentator explains:

“The so-called hearsay dangers, which justify the exclusionary hearsay rule, are universally recognized to be the witness’ perception, memory, narration and sincerity. All of these revolve around the denial of the right of cross-examination, and the lack of opportunity to view the witness’ demeanor. No one has ever suggested lack of probative value as a hearsay danger. Perhaps the best argument in favor of the probative value of hearsay lies in the many exceptions to its exclusion. If hearsay were nonprobative there would not be so many courts and lawyers and commentators seeking excuses to admit it. There are no exceptions to the rule excluding irrelevant evidence which truly lacks probative value.” (footnotes omitted)

That hearsay evidence has probative force is reflected in many of this Court’s decisions. For example, hearsay evidence, not within any of the recognized exceptions to the hearsay rule, is proper proof of value in theft cases. Kirkland v. State, 489 S.W.2d 298 (Tex.Cr.App.1972); Gonzales v. State, 478 S.W.2d 522 (Tex.Cr.App.1972); Hermossilo v. State, 475 S.W.2d 252 (Tex.Cr.App.1971); Lucas v. State, 452 S.W.2d 468 (Tex.Cr.App.1970); DeLaO v. State, 373 S.W.2d 501 (Tex.Cr.App.1964), and Esparza v. State, 367 S.W.2d 861 (Tex.Cr.App.1963).

Further, admissible reputation evidence is in the nature of opinion based on hearsay. The reputation witness states his opinion based on that which he has heard from others concerning defendant. See Brown v. State, 477 S.W.2d 617 (Tex.Cr.App.1972), and Mitchell v. State, 524 S.W.2d 510 (Tex.Cr.App.1975).

In Ex parte Clark, 164 Tex.Cr.R. 385, 299 S.W.2d 128 (1957), petitioner was charged with felony theft and forgery. When those cases were called for trial, he pled guilty and waived his right to a jury trial. He also “ ‘waived the hearsay rule and the presence of witnesses to appear and testify against the defendant in each cause.’ ” To prove commission of the offenses charged, the State relied entirely upon hearsay evidence which consisted of ex parte affidavits by the prosecuting witnesses.

Petitioner subsequently instituted a habe-as corpus proceeding attacking the judgments and sentences. The thrust of his attack was that although the trial court did not err in admitting the statements, they were hearsay and, thus, had no probative force. This Court rejected that contention and held that the affidavits did constitute evidence of probative force since the right to confrontation and cross-examination had been waived.

In Clayton v. State, 172 Tex.Cr.R. 595, 361 S.W.2d 385 (1962), the conviction was for the offense of murder without malice under Article 802c of the former code. The offense occurred when defendant, who was intoxicated, crashed his automobile into the deceased’s truck. The conviction was largely due to the testimony of Mrs. Hamilton, a witness for the State. After she testified and the defense rested, defendant requested that the jury be instructed not to consider a portion of Mrs. Hamilton’s testimony if they found and believed it “ ‘was based upon what is commonly called hearsay, or what someone else told her.’ ”

On appeal, defendant challenged the trial court’s refusal to give the requested instruction. This Court, overruling his challenge, stated that:

“ . . .If appellant desired to have the witness’ statement which he regarded as hearsay withdrawn, he should have objected to its admission or moved the court to withdraw it at the time. James v. State, 169 Tex.Cr.R. 526, 335 S.W.2d 603. The court did not err in refusing the requested charge.”

1 McCormick and Ray, Texas Law of Evidence, supra, contains a discussion of the Texas rule. Therein it is stated that:

“As stated earlier a failure to make proper objection to evidence which is inadmissible because in violation of one of the exclusionary rules operates as a waiver of any complaint based upon the admission of the evidence. But it may have a more serious consequence. In most jurisdictions such evidence, if relevant to some issue, stands upon the same footing as admissible evidence, i.e., it may be relied upon to the extent of its probative value and may support a finding of fact or verdict. Texas cases, however, contain frequent statements to the effect that inadmissible evidence may never support a finding of fact or verdict even though it was received without objection.
“This broad statement is inaccurate. An analysis of the cases shows that as to secondary evidence of a writing and testimony of an incompetent witness, the courts are in line with the majority elsewhere, permitting the use of evidence in support of a finding or verdict. But inadmissible hearsay and opinion evidence, admitted without objection, may not be used for any purpose. This position seems to be based upon the assumption that such evidence is entirely without probate value. The assumption is unsound and the result has been effectively criticized.
“Evidence which is totally lacking in relevance is to be distinguished. The failure to object to it can add nothing to its probative value and it will not, of course, support a finding or verdict. . ” (Emphasis added) (footnotes omitted).

From the reasons set out, hearsay evidence does have probative value. The Texas rule blurs the distinction between inadmissible evidence and incompetent evidence.

Further, this rule reduces the administration of justice to a game. If hearsay evidence is objected to at the proper time, then the State may be able to offer other evidence in its place. But if the hearsay is admitted without objection, and is uncon-tradicted, then the State will often be precluded from introducing other, repetitious proof because of the various practical constraints under which it operates at trial. Thus, the rule allows the accused to lull the State into a false sense of security concerning the status of its proof and then on appeal to argue that the evidence is insufficient to support the verdict.

An accused occupies one of three possible positions with respect to hearsay evidence offered by the State: (1) he does not have sufficient information to know whether it is true or false; (2) he knows it is false; (3) he knows that it is true. In any case, if the accused occupies either of the first two positions he can be expected to object to the proffered hearsay. If he fails to object, the inference can be drawn that such failure results from two possible motives: (1) a tacit admission that the hearsay is true, in which event the court should give the evidence its full probative effect, or (2) he is playing a game for appellate purposes, which does not deserve court sanction.

There is no authority for the proposition that a more stringent hearsay rule must be applied in criminal than in civil eases. See the discussion contained in United States v. Williams, 447 F.2d 1285 (5th Cir. 1971), cert. denied, 405 U.S. 954, 92 S.Ct. 1168, 31 L.Ed.2d 231, rehearing denied, 405 U.S. 1048, 92 S.Ct. 1308, 31 L.Ed.2d 591. Application of the Texas rule deflects the truth-finding process and, hence, often frees the guilty. In the instant case, appellant, convicted of theft of property of the value of over $200.00, is reversed because the testimony of a witness, admitted without objection and uncontradicted, is “shorn” by the majority. When appellant failed to object to the testimony he either assented to its accuracy or played games with the court. The rule encourages the latter and, thus, should be abandoned.

      . Paine, 354 (1945). 1. Foner, The Complete Writings of Thomas

      . Black, Hearsay Admitted Without Objection — A Defense of Its Probative Value, 17 So.Tex.L.J., 69 (1975).

      . Id. at pp. 71-72.


author: ODOM, Judge.

text:
    Dedan KIMITHI, Appellant, v. The STATE of Texas, Appellee.
    No. 52568.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1977.

      E. Brice Cunningham, Dallas, for appellant.
    Henry Wade, Dist. Atty.; Maridell J. Templeton, John Ovard and David C. Schick, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted for aggravated robbery. His punishment was assessed by the court at seventy-five years’ imprisonment.

The first four grounds of error urge that the trial court abused its discretion when it directed the bailiff and other deputies to handcuff and gag the appellant in the presence of the jury panel and the jury. We overrule these grounds of error and hold that the trial court’s actions were entirely proper under the circumstances of this case.

The appellant informed the trial judge before the selection of the jury that he did not want to be present during any of the trial proceedings. He also requested the court to allow him to inform the jury that he did not desire to participate in the trial. The judge denied this request and recessed the proceeding until after lunch.

After the recess, the bailiff was forced to handcuff the appellant in order to bring him into the courtroom. The judge informed the appellant that he would be restrained if he did not conduct himself in a proper manner. The court then told the appellant that the handcuffs would be removed if he promised not to cause any physical disturbance. The appellant agreed to this and his restraints were removed. The jury panel was then brought into the courtroom.

At this point, the appellant began asserting that he had been choked and assaulted by the officers. The jury panel was removed from the courtroom. The court promptly obtained a medical examination for the appellant.

The physician who made the medical examination stated that the appellant was not injured. The appellant demanded the court to obtain another physician to examine him. The court denied this request and had the jury panel returned to the courtroom.

Upon the panel’s return, the appellant stated that the repressive racism of the proceedings had made him ill and that he wanted another physician. The court asked the apnellant to remain quiet. The appellant, however, continued his demands. The court instructed the bailiff to restrain the appellant’s hands and silence him. The bailiff, with the help of other officers, placed some tissue paper in the appellant’s mouth. The paper remained in his mouth only briefly. The jury panel was once again removed from the courtroom.

The court, at this stage in the proceedings, informed the appellant that he did not want to hurt him or restrain him in any manner. The judge implored the appellant to control himself and to conduct himself in an orderly manner. The proceedings were then recessed for the day.

During the evening, the court had another physician examine the appellant. This physician concluded that the appellant was physically capable of standing trial.

On the second day, the behavior of the appellant became even more unruly. In the presence of the jury panel, appellant called the judge a racist and demanded, on numerous occasions, that the judge disqualify himself. He repeatedly referred to the court as a “kangaroo court.”

The record reflects that the judge once again asked the appellant to behave. The judge also warned him that he would be removed from the courtroom if his conduct continued. The court’s requests went unheeded. The judge then held the appellant in contempt and removed him from the proceedings stating that the appellant could return if he would control himself.

Later, during the reading of the indictment to the jury, the appellant resumed his disruptive conduct. He demanded that he be tried by the United Nations. He called the court and the jury racists. He demanded the disqualification of the judge.

The judge asked the appellant to allow the trial to proceed. The appellant, however, continued his disruptions. He stated that his name was incorrect on the indictment. When inquiry was made into his proper name, he supplied two patently false answers: Garthamaumau and Rip Van Winkle. Finally, upon appellant’s request, the name on the indictment was changed from Derrell Dwayne Smith to Dedan Ki-mithi.

The judge had the appellant gagged and handcuffed when the disruptions persisted. Finally, the appellant was removed from the courtroom. During the remainder of the trial he was brought back to the courtroom only for identification purposes. He was handcuffed at these stages in the proceeding.

Initially, we observe that the judge instructed the appellant that he could return to the courtroom if he would conduct himself in an orderly fashion. Appellant’s counsel were instructed to notify the court when the appellant was willing to behave.

We also note that the court only ordered the appellant to be handcuffed and gagged when it was obvious that the disruptions would not cease. Furthermore, the record reflects that the court attempted to prevent the jury panel and the jury from observing the unruly behavior.

We now give our reasons for overruling appellant’s first four grounds of error. A prisoner should not be bound and gagged during a trial unless such action is absolutely necessary for the maintenance of an orderly and peaceable trial. In Gray v. State, 99 Tex.Cr.R. 305, 268 S.W. 941, at 949, this Court stated:

“. . . if, in the sound discretion of the court, it appears necessary to retain his shackles to prevent the escape or self-destruction of the prisoner, or to prevent him from injuring bystanders or officers of the court, or if necessary to maintain a quiet and peaceable trial, the court may try the prisoner without having the shackles removed; his action being subject to the closest scrutiny and review by the appellate court.”

In Moore v. State, Tex.Cr.App., 535 S.W.2d 357, we repeated this standard and held that the record must affirmatively demonstrate the reason why a handcuffed defendant was viewed by the jurors. The record in the case at bar establishes that the trial judge’s actions were completely justified.

Indeed, the judge showed considerable compassion and restraint in his response to the appellant’s behavior. The court promptly responded to the appellant’s request for medical attention. The appellant was also warned on numerous occasions what the consequences of his acts would be. The appellant was informed on several occasions that he could return to the courtroom and participate in the proceedings unrestrained if he would conduct himself in a responsible manner.

No abuse of discretion is shown. The first four grounds of error are overruled.

Grounds of error five through ten maintain that constitutional error was committed because the appellant was not personally present at each stage of the trial. The appellant also argues that his right to confront the witnesses against him was violated by the trial court. We do not agree with these contentions.

In Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353, the United States Supreme Court stated:

“It is essential to the proper administration of criminal justice that dignity, order and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly.” 397 U.S. at 343-344, 90 S.Ct. at 1061.

The reasoning of the Supreme Court is applicable to the circumstances of the case at bar. The appellant demonstrated his unwillingness to conduct himself in a dignified manner each time he was brought into the courtroom. Therefore, his absence from the courtroom during the proceedings and the resulting denial of personal confrontation of the witnesses against him were a consequence of his own acts, which acts constituted a waiver of those rights to the extent that the exercise of them was impaired by his lawful removal from the court. Cf. Gonzales v. State, Tex.Cr.App., 515 S.W.2d 920. See also Art. 33.03, V.A.C. C.P. Grounds of error five through ten are overruled.

The next ground of error makes complaint of the admission of a penitentiary packet into evidence. Appellant argues that this document was not properly authenticated pursuant to Section 4 of Art. 3731a, V.A.C.S. (The Official Documents Act).

This evidence of appellant’s prior conviction was introduced at the punishment stage of the trial, but it was not introduced for purposes of enhancement. Furthermore, the court assessed the punishment. The jury did not participate in this stage of the proceedings.

The trial court, as the finder of fact at the punishment stage of the trial, is presumed to have disregarded any evidence that was improperly admitted. See, Maden v. State, Tex.Cr.App., 542 S.W.2d 189. Appellant’s ground of error is overruled.

Appellant’s twelfth ground of error complains of the judge’s conduct during the examination of Joe Silva, an eyewitness to the offense. This witness was asked if the person who had committed the offense was in the courtroom. Appellant urges that after the question was asked the court pointed at the appellant and asked the witness if he could see him. Appellant claims that Silva’s identification testimony was tainted by the court’s inquiry.

We disagree. Silva had previously identified the appellant outside the presence of the jury in a hearing held before the court. During the examination of Silva before the jury, the appellant started another disruption. A handkerchief was placed over his mouth to silence him. The record indicates that the judge asked Silva if he could see the appellant because he wanted to insure that a proper identification was made. We perceive no error. The twelfth ground of error is without merit.

Grounds of error thirteen through nineteen also claim that the identification testimony of three witnesses was tainted by the actions of the trial court. Appellant claims that the identification testimony was tainted because he was forcibly brought into the courtroom in handcuffs and because he was surrounded by deputies when the identification was made.

We will review the procedure used in regard to the identification evidence. The three witnesses who identified the appellant were all at the scene of the offense when it occurred. The trial court had each of these witnesses identify the appellant outside the presence of the jury. After this, the witnesses were permitted to identify the appellant in open court before the jury.

The appellant was handcuffed and sometimes gagged during both proceedings. He was also accompanied by officers of the court at the time he was identified.

We find no error.

The final ground of error challenges the sufficiency of the evidence. This claim is without merit. Three eyewitnesses identified the appellant as the perpetrator of the offense. The ground of error is overruled.

The judgment is affirmed.

      . The record reflects several aliases: Derrell Dewayne Smith, also known as Derrell Dwayne Johnson, also known as James L. Moore.

      . The right of confrontation was exercised by counsel who represented him in the courtroom during the trial.


author: ODOM, Judge. ONION, Presiding Judge.

text:
    Ex parte Clifford A. McCARTY.
    No. 53725.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1977.

      Sally L. Ray, Huntsville, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is a habeas corpus application under Art. 11.07, V.A.C.C.P., wherein petitioner contends he was denied effective assistance of counsel on appeal, and seeks relief in the form of an out-of-time appeal.

Petitioner was convicted of murder in 1958 and punishment was assessed at life. On appeal petitioner was not represented by counsel, and the conviction was affirmed in McCarty v. State, 167 Tex.C.R. 164, 319 S.W.2d 338. It is uncontested that petitioner was indigent at the time. The hearing judge found petitioner was entitled to an out-of-time appeal, and we agree. See Ex parte Perez, Tex.Cr.App., 479 S.W.2d 283; Ex parte Campbell, Tex.Cr.App., 494 S.W.2d 842.

The requested relief is granted.

ONION, Presiding Judge.

I concur in the result reached that petitioner is entitled to the out-of-time appeal, but I take this opportunity to call to the trial bench’s attention that much time is lost in post-conviction habeas corpus proceedings where the trial court has determined that the petitioner is entitled to an out-of-time appeal. Once that determination is made, the trial court can take steps to accord the petitioner an out-of-time appeal where the trial record is still available, and forward to this court such appellate record for the out-of-time appeal along with the post-conviction habeas corpus proceedings. While this court is not bound by the findings of the trial court in these matters, if this court does agree that the petitioner is entitled to an out-of-time appeal then such appeal can be immediately afforded. Where only the determination that petitioner is entitled to an out-of-time appeal is forwarded along with the post-con-vietion habeas corpus record, then this court must pass on that matter; and if it agrees with the trial court, it must write an opinion and then await the preparation of the appellate record and then write again on the out-of-time appeal after much time lapse.

In Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967), it was written:

“Upon petition being presented to him as provided in Art. 11.07 as amended, the judge of the convicting court may:
“Grant or deny the petition in the same manner as any other district judge, with or without a hearing. If the facts are undisputed the district judge may so certify in issuing or refusing to issue the writ.
“If the undisputed facts or the facts resolved by him after hearing warrant such proceedings, the judge of the convicting court may be in position to afford the applicant rights which have been denied him, such as counsel on appeal; record on appeal; effective aid of counsel on appeal; determination of voluntariness of confession; and nunc pro tunc proceedings to supply or correct the records. See Ex parte Brown, Tex.Cr.App., 210 S.W.2d 597; Ex parte Church, 163 Tex.Cr.R. 357, 292 S.W.2d 120; Ex parte Hannen, 155 Tex.Cr.R. 10, 230 S.W.2d 236; Ex parte Brian, Tex.Cr.App., 389 S.W.2d 467; Ex parte Mixon, Tex.Cr.App., 396 S.W.2d 417 (in which the writer dissented).
“In this way the applicant may, in some instances, be afforded all of the relief which the Court of Criminal Appeals or the Federal Court would afford him under the facts.”

For some time after Young the procedure here recommended was followed, but for some unexplained reason the practice fell into disuse. The procedure here recommended should be followed.

DOUGLAS, J., joins in this concurrence.

      . The appellate procedure applicable to an out-of-time appeal is the appellate procedure in effect at the time of the original appeal or attempted appeal. Ex parte Young, 517 S.W.2d 288 (Tex.Cr.App.1974), and cases there cited. Since the original appeal in the instant case was in 1958, the Code of Criminal Procedure, 1925, as amended, would be applicable. There would be no requirement that appellate briefs be filed in the trial court but in this court.