author: PHILLIPS, Judge. ONION, Presiding Judge.

text:
    Charles F. ALEJOS, Appellant, v. The STATE of Texas, Appellee.
    No. 52789.
    Court of Criminal Appeals of Texas.
    April 27, 1977.
    On Rehearing Sept. 14, 1977.

      C. E. Cantrell, court appointed, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Allan Roy Manka, and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
    Bill M. White, Dist. Atty., Allan Roy Manka, Davis A. Berchelmann, Jr., and Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State, on Rehearing.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of evading arrest under V.T. C.A., Penal Code, Sec. 38.04 on a plea of not guilty to the court. Punishment was assessed at 15 days confinement in jail and a fine of $125.00, and appellant was placed on 12 months probation.

Officer Richard Garansuay of the San Antonio Police Department was the only witness to testify, and appellant does not challenge the sufficiency of the evidence. At 11:30 p. m. on May 8, 1975, Officer Garansuay observed a car coming in his direction on the wrong side of the road at a high rate of speed. Garansuay swerved, turned his car around and started to chase the vehicle, while turning on the emergency lights and siren of his marked car. When the car driven by appellant did not slow down, Garansuay advised the dispatcher he was chasing a vehicle that wouldn’t stop and a second officer joined the pursuit.

After approximately four blocks, appellant turned onto a quieter street which was not as well lighted as the major traffic artery he had been travelling. Next he pulled into a driveway, turned off his lights and he and his passengers “slouched” down in the car. Both Garansuay and the other officer followed the appellant’s car to the house at which time he was issued a citation for speeding. Garansuay estimated that the entire chase lasted 45 seconds to one minute and covered a distance of five blocks.

In the two grounds of error which form the basis of this appeal appellant contends the trial court erred in denying his motion to quash the complaint on two alternative grounds. First because two statutes deal with the acts constituting the offense, but have different punishment provisions; and alternately, that the State prosecuted appellant under a general penal statute when a specific statute was applicable to the transaction. We agree with appellant’s second contention.

Evading arrest is defined in V.T.C.A., Penal Code, Sec. 38.04, as follows:

“(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to arrest him.”

An offense under Sec. 38.04 is a class B misdemeanor punishable by (1) a fine not to exceed $1,000.00, (2) confinement in jail for a term not to exceed 180 days, or (3) both.

Art. 6701d, Sec. 186, V.A.C.S., sets forth the elements of “fleeing or attempting to elude a police officer” as follows:

“(a) Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle, when given visual or audible signal to bring the vehicle to a stop, shall be guilty of a misdemeanor. The signal given by the police officer may be by hand, voice, emergency light or siren. The officer giving such signal shall be in uniform, prominently displaying his badge of office, and his vehicle shall be appropriately marked showing it to be an official police vehicle.”

Following this Court’s decision in Stein v. State, 515 S.W.2d 104, a violation of Art. 6701d, Sec. 186, is punishable through the general punishment provisions of Art. 6701d, Sec. 143, V.A.C.S., which provides:

“(b) Every person convicted of a misdemeanor for. a violation of any of the provisions of this Act for which another penalty is not provided shall be punished by a fine of not less than One ($1.00) Dollar nor more than Two Hundred ($200.00) Dollars.”

Appellant argues that Sec. 38.04 is a general statute and that the transaction involved in the instant appeal was controlled by the special statute, Art. 6701d, Sec. 186. It is undisputed that the entire transaction occurred while appellant was in the operation and control of a motor vehicle.

Sec. 38.04 requires that a person flee from a known police officer who is attempting to legally arrest that person. It does not specify a particular mode of fleeing; the emphasis is instead on flight from arrest. On the other hand, Art. 6701d, Sec. 186, does not require that the officer be attempting to arrest the person who flees in a motor vehicle. The operative facts under that statute are that the actor flees from a police officer in a motor vehicle. Clearly there are many types of flight which could be involved in Art. 6701d, Sec. 186, which fall far short of flight from arrest. Flight under Art. 6701d, Sec. 186, could involve a routine license check or mere discussion of a traffic violation, as contrasted with an attempted arrest under Sec. 38.04. This Court noted in Wussow v. State, 507 S.W.2d 792, at 793:

“Although an officer is authorized to arrest a person for a traffic violation (Art. 6701d, Sec. 153, Vernon’s Ann.Civ.St.) it does not follow that every discussion of a traffic violation results in an arrest or occurs only after an arrest.”

Having determined that Sec. 38.04 is a broad and general statute applicable to different factual situations, while Art. 6701d, Sec. 186 is more narrowly directed to attempted flight from an officer in a motor vehicle, we conclude appellant was improperly charged under Sec. 38.04. Art. 6701d, Sec. 186 and Sec. 38.04 are in pari materia and when construed together, they can be harmonized and given effect with the special governing the general in event of any conflict. See Hines v. State, Tex.Cr.App., 515 S.W.2d 670; Cuellar v. State, Tex.Cr.App., 521 S.W.2d 277.

For the reasons above stated, we reverse the judgment of the trial court and the prosecution is ordered dismissed.

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

This appeal is from a conviction for evading arrest under V.T.C.A., Penal Code, § 38.04. In a bench trial following a not guilty plea, punishment was assessed at fifteen (15) days in the county jail and at a fine of $125.00. The court then placed the appellant on misdemeanor probation for twelve (12) months. See Article 42.13, Vernon’s Ann.C.C.P.

On original submission we reversed the conviction holding that Article 6701d, § 186, Vernon’s Ann.C.S. (fleeing or attempting to elude a police officer) and said § 38.04 of the new Penal Code were in pari materia and that the civil statute as a special statute controlled over the general statute (said § 38.04) since the penalties varied.

On rehearing the State urges reconsideration of the question. We shall do so.

The record reflects that Officer Richard Garansuay of the San Antonio Police was the only witness to testify, and the sufficiency of the evidence is not challenged by the appellant. About 11:30 p. m. on May 8, 1975, while in uniform, Garansuay was on patrol northbound on South Flores Street when he heard screeching tires and then observed a motor vehicle at a high rate of speed on the wrong side of the road. The vehicle was southbound but driving in the northbound lane. Garansuay swerved his clearly marked police vehicle to avoid a collision and turned to follow the other vehicle. The officer turned on the emergency lights on top of his police vehicle as well as his siren. The other vehicle continued at a high rate of speed and would not stop. Garansuay then advised the police dispatcher he was chasing a vehicle that would not stop. Another police unit joined the pursuit. Soon the other vehicle turned on Big Foot Street, a dark side street, and when Garansuay turned onto Big Foot he did not see the other vehicle on the street but observed it in a driveway without lights and without the motor running. The individuals in the car were trying to conceal themselves by “ducking down.” The appellant was discovered to be the driver of the fleeing vehicle. It was determined that the residents of the address where appellant had parked did not know him or any of the passengers in appellant’s vehicle.

Appellant was charged with evading arrest and speeding, etc.

V.T.C.A., Penal Code, § 38.04 (Evading Arrest), provides:

“(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to arrest him.
“(b) It is an exception to the application of this section that the attempted arrest is unlawful.
“(c) An offense under this section is a Class B misdemeanor.”

The Practice Commentary to said § 38.04 reads:

“This section is new to Texas law. It provides a misdemeanor sanction for evading arrest by flight. Section 38.03 (resisting arrest) does not apply to flight if no force is used against the peace officer, and Section 38.07 (escape) does not apply to a flight prior to arrest. If flight from arrest can be deterred by the threat of an additional penalty, there should be fewer instances in which peace officers resort to force to effect an arrest.
“The exception in Subsection (b) provides that flight from an unlawful arrest is not an offense. This approach differs from Sections 38.03 (resisting arrest) and 38.09 (effect of unlawful custody) under which the unlawfulness of an arrest or custody is no defense to the offenses of resisting arrest or escape. The effect of the exception is that the state must allege and prove the attempted arrest lawful.”

See Y.T.C.A., Penal Code, § 2.02.

The Explanatory Comment of Branch’s Texas Annotated Penal Code, 3rd Ed., Vol. 3, § 38.04, p. 116, has a similar explanation. It reads:

“The provisions of Section 38.04 are new to Texas law. It applies solely to non-forceful evasion and has no application if an arrest had actually been effected. If force is used to avoid an arrest, then Section 38.03 applies, and if the escape occurs after an arrest, Section 38.07 is applicable. The intent of this section is to deter flight from arrest by the threat of an additional penalty and to further discourage forceful conflicts between police and suspects.
“Subsection (b) provides that it is an exception if the attempted arrest is unlawful. The prosecution must, therefore, plead and prove that the attempted arrest was lawful. (See Sec. 2.02) This differs from resisting arrest (See. 38.03), escape (Sec. 38.07), and facilitating escape (Sec. 38.08), where the lawfulness of the arrest or custody has no bearing on the guilt or innocence of the accused.”

It is clear from all of the above that the elements of the offense under said § 38.04 are that:

(1) a person

(2) intentionally flees

(3) from a peace officer

(4) with knowledge he is a peace officer

(5) peace officer is attempting to arrest defendant

(6) the attempted arrest is lawful. Article 6701d, supra, is entitled “Uniform

Act Regulating Traffic on Highways” (see § 154). It is a complex statute with many sections having as its overall object the safety and orderly regulation of traffic upon Texas highways.

§ 186 of said statute provides:

“(a) Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle, when given visual or audible signal to bring the vehicle to a stop, shall be guilty of a misdemeanor. The signal given by the police officer may be by hand, voice, emergency light or siren. The officer giving such signal shall be in uniform, prominently displaying his badge of office, and his vehicle shall be appropriately marked showing it to be an official police vehicle.
“(b) Every person convicted of fleeing or attempting to elude a police officer shall be punished by imprisonment for not less than thirty (30) days nor more than six (6) months or by a fine of not less than One Hundred Dollars ($100) nor more than Five Hundred Dollars ($500), or by both such fine and imprisonment.”

§ 186 was added to Article 6701d, supra, by Acts 1971, 62nd Leg., p. 771, ch. 83, § 95, and became effective August 30, 1971.

In Stein v. State, 515 S.W.2d 104 (Tex.Cr.App.1974), it was held that the penalty portion (subsection b) of § 186 was unconstitutional in that the 1971 amendment which added the penalty provision did not include reference to the penalty provision in the caption of the legislative rule. See Article III, § 35, Texas Constitution Stein thus held that the penalty for violation of § 186 fell under the general penalty provision of Article 6701d, supra, found in § 143, which provides:

“(a) It is a misdemeanor for any person to violate any of the provisions of this Act unless such violation is by this Act or other law of this State declared to be a felony.
“(b) Every person convicted of a misdemeanor for a violation of any of the provisions of this Act for which another penalty is not provided shall be punished by a fine of not less than One ($1.00) Dollar nor more than Two Hundred ($200.00) Dollars.”

See also § 22 of Article 6701d, supra.

In accord with Stein are Harvey v. State, 515 S.W.2d 108 (Tex.Cr.App.1974), and Besson v. State, 515 S.W.2d 112 (Tex.Cr.App.1974).

The elements of said § 186 are:

(1) a person
(2) who is a driver of a motor vehicle
(3) and who willfully fails or refuses to bring his vehicle to a stop or who otherwise flees or attempts to elude a pursuing police vehicle
(4) when given a visual or audible signal (hand, voice, emergency light or siren)
(5) by uniformed officer displaying badge
(6) in an appropriately marked police vehicle.

It is clear from the above that the two acts involved are contained in different legislative acts, have different elements of proof, different penalties and obviously designed to serve different purposes and objectives.

§ 38.04 of the Penal Code is new to Texas law (effective January 1, 1974) and was obviously designed to apply where there has been a non-forceful evasion of arrest under the circumstances to which neither § 38.03 (resisting arrest) nor § 38.07 (escape) is applicable. It meshes well with other offenses set forth in the same chapter of the Penal Code. The section’s intent is to deter flight from arrest by the threat of an additional penalty, thus discouraging forceful conflicts between the police and suspects.

§ 38.04 is general in nature in that it applies to all types of non-forceful evasion of arrest. Neither the accused nor the peace officer is required to be in a motor vehicle, airplane, bicycle or ox-cart. The fleeing may take place on foot. The officer is not required to be in uniform so long as it is proven that the accused in fleeing has knowledge that he is a police officer. A significant feature of the offense is the State must prove the officer was attempting to arrest the accused and that such attempted arrest is legal.

These matters contrast sharply with elements of the offense provided by § 186 of Article 6701d, supra, as noted above. § 186 is one of many statutes dealing with traffic regulations. It does not necessarily contemplate an arrest being consummated or an arrest being the reason for the initial attempt to stop the vehicle. An officer may stop a driver to determine if he has a driver’s license (Article 6687b, § 13, Vernon’s Ann.C.S.), to issue a warning ticket, to advise of road hazards, weather conditions or countless other reasons that have no relation to an arrest.

Article 5429b-2, § 3.06, Vernon’s Ann. C.S. (Code Construction Act), also provides that:

“If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.”

Further, V.T.C.A., Penal Code, § 1.05(b), provides:

“Unless a different construction is required by the context, Sections 2.01, 2.02, 2.04, 2.05 and S.01 through 3.12 of the Code Construction Act (Article 5429b-2, Vernon’s Texas Civil Statutes) apply to the construction of this code.” (Emphasis supplied.) See and cf. Ex parte Harrell, 542 S.W.2d 169 (Tex.Cr.App.1976).

Normally when statutes are in pari materia effort is made to harmonize and give effect with the special governing the general in the event of any conflict. Hines v. State, 515 S.W.2d 670 (Tex.Cr.App.1974); Cuellar v. State, 521 S.W.2d 277 (Tex.Cr.App.1975); Ex parte Harrell, supra; Jones v. State, 552 S.W.2d 836 (Tex.Cr.App.1977).

The rule is explained in 53 Tex.Jur.2d, Statutes, § 186, p. 280, where it is written:

“It is a settled rule of statutory interpretation that statutes that deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons or things, are considered as being in pari materia though they contain no reference to one another, and though they were passed at different times or at different sessions of the legislature.
“In order to arrive at a proper construction of a statute, and determine the exact legislative intent, all acts and parts of acts in pari materia will, therefore, be taken, read, and construed together, each enactment in reference to the other, as though they were parts of one and the same law. Any conflict between their provisions will be harmonized, if possible, and effect will be given to all the provisions of each act if they can be made to stand together and have concurrent efficacy.
“The purpose of the in pari materia rule of construction is to carry out the full legislative intent, by giving effect to all laws and provisions bearing on the same subject. The rule proceeds on the same supposition that several statutes relating to one subject are governed by one spirit and policy, and are intended to be consistent and harmonious in their several parts and provisions. Thus, it applies where one statute deals with a subject in comprehensive terms and another deals with a portion of the same subject in a more definite way. But where a general statute and a more detailed enactment are in conflict, the latter will prevail, regardless of whether it was passed prior or subsequently to the general statute, unless it appears that the legislature intended to make the general act controlling. And, the rule is not applicable to enactments that cover different situations and that were apparently not intended to be considered together.” (Emphasis supplied.)

It has also been written that:

“Statutes are considered to be in pari materia — when they relate to the same person or thing, or to the same class of persons or things, or have the same purposes or object. As between characterization of the subject matter with which a statute deals and characterization of its object or purpose, the latter appears to be the more important factor in determining whether different statutes are closely enough related to justify interpreting one in the light of the other. For example, it has been held that where the same subject is treated in several acts having different objects the rule of in pari materia does not apply. The adventitious occurrence of like or similar phrases, or even of similar subject matter, in laws enacted for wholly different ends will not justify applying the rule.” C. Dallas Sands, Sutherland Statutory Construction, Vol. 2A, § 51.03, p. 298, and Supplement, p. 28 (1973) (Emphasis supplied.)

It is stated in 82 C.J.S. Statutes § 366a., that:

“Statutes which relate to the same person or thing, or to the same class of persons or things, or which have a common purpose are in pari materia. On the other hand, statutes are not in pari mate-ria which do not relate to the same subject and which have no common purpose and scope; and, although an act may incidentally refer to the same subject as another act, it is not in pari materia if its scope and aim are distinct and unconnected. .. . ”

Further, in 73 Am.Jur.2d, Statutes, § 189, it is said that:

“ . . . Statutes which are parts of the same general scheme or plan, or are aimed at the accomplishment of the same results and the suppression of the same evil, are also considered as in pari mate-ria. On the other hand, statutes which have no common aim or purpose, and which do not relate to the same subject, thing, or person, are not in pari materia.

From what has been said about both statutes above, we conclude while the same subject is treated they are in different acts having different objects, intended to cover different situations and were apparently not intended to be considered together. The statutes thus are not in pari materia.

Arguably under the facts of the instant case, the State could have prosecuted and successfully proved the elements of either § 186 of Article 6701d, supra, or § 38.04 of the Penal Code. Appellant in a motor vehicle refused to obey the signal of a uniformed police officer in a marked police vehicle to stop his car. That was a violation of said § 186 without regard to whether the officer was attempting to make an arrest. However, in doing so, appellant also fled from an officer who had probable cause to arrest. This was a violation of said § 38.04 without regard to whether appellant was driving a vehicle when doing so or whether the officer was in uniform, etc. A similar situation could arise where the State prosecutes for burglary and the defendant urges that the prosecution should be for criminal trespass.

It is well settled that “the prosecuting attorney may carve as large an offense out of a single transaction as he can, but he must cut only once . . . .” Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976); Fleming v. State, 168 Tex.Cr.R. 595, 330 S.W.2d 457 (1959); 1 Branch’s Ann.P.C., 2d ed., § 654, p. 625.

We conclude the State properly exercised its option as to which offense it sought to prosecute. This disposes of appellant’s contention upon which the reversal was predicated on original submission.

Appellant also urged on original submission that the acts involved constituting an offense are found in different statutes and are punished differently and therefore neither can be enforced for want of certainty of punishment. He cites Cooper v. State, 25 Tex.App. 530, 8 S.W. 654 (Court of Appeals 1888), and Moran v. State, 135 Tex.Cr.R. 645, 122 S.W.2d 318 (Tex.Cr.App. 1938). We conclude that our earlier discussion of the two statutes involved clearly distinguishes the instant case from Cooper and Moran and disposes of appellant’s contention.

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

ROBERTS and PHILLIPS, JJ., dissent.

      . Garansuay testified that the car was travelling approximately 65 miles an hour in a 30-35 mile an hour zone.

      . A Class B misdemeanor is punishable by (1) confinement in jail for a term not to exceed 180 days, (2) a fine not to exceed $1,000.00, or (3) both such fine and imprisonment. See V.T. C.A., Penal Code, § 12.22.


source: Caselaw Access Project

author: ROBERTS, Judge.

license: Public Domain

text:
    Willie PRODON, Appellant, v. The STATE of Texas, Appellee.
    No. 52783.
    Court of Criminal Appeals of Texas.
    Sept. 14, 1977.

      Eugene B. Wilshire, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Terry G. Wilson, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for attempted burglary. The jury assessed punishment, enhanced by two prior convictions, at life imprisonment in the Texas Department of Corrections.

The appellant contends that the indictment was defective, that the enhancement paragraphs failed to give him proper notice, and that he could not be sentenced under a verdict that failed to state whether the jury found one of the two prior convictions to be final. We affirm.

The testimony reflects that on March 16, 1974, Mrs. Mary Stokes was awakened by a sound coming from a grocery store adjacent to her home. Upon seeing a man dressed in white banging on the roof of the grocery store, she called the Houston police. Three Houston police officers testified that they responded to the call and apprehended the appellant on the roof of the grocery store. They further testified that a ventilator had been removed from the roof and that it appeared that someone had attempted to make a hole in the roof. Mrs. Elizabeth Leal, the complainant, testified that she was the owner of the grocery store and that she had not given permission to anyone to enter the store.

Appellant’s first two contentions focus on the sufficiency of the indictment. Omitting the formal portions, the indictment states that the appellant unlawfully:

. . commit an offense hereafter styled the primary offense in that he did attempt to enter a building owned by Elizabeth Leal by removing a ventilator and cutting a hole in the roof, having intent to commit burglary.”

Specifically, appellant’s first two contentions are that the indictment was fundamentally defective as it failed to allege whether the burglary intended was with the intent to commit theft or with the intent to commit a felony, and that the indictment failed to allege the particular intent required by the attempt statute.

In Williams v. State, 544 S.W.2d 428 (Tex.Cr.App.1976), the defendant was charged with attempted burglary. That indictment stated in part that the defendant unlawfully:

“. . . commit an offense hereinafter styled the primary offense in that he did attempt to enter a building owned by Ray Bailey, by prying a door latch with a steel meathook, having intent to commit burglary.” Id., 544 S.W.2d at 429.

The defendant attacked the indictment on the grounds that the entry was made without the effective consent of the owner and that the allegation of specific intent to commit burglary was insufficient. We there stated that “[U]nderlying both of these grounds of error is the contention that the constituent elements of the offense [stated] must be set out in an indictment charging the attempt.” In overruling the contentions advanced in Williams, we held

“. . . that an indictment for criminal attempt is not fundamentally defective for failure to allege the constituent elements of the offense attempted.” Id., 544 S.W.2d at 430.

Here, the only distinction between the appellant’s contentions and the contentions advanced in Williams is that the appellant complains not of the absence of an allegation regarding effective consent, but of the absence of an allegation regarding the objective of the burglary. It is clear that the intent to commit theft or the intent to commit a felony, as used in the burglary statute, V.T.C.A., Penal Code, Section 30.02, is an element of the offense. Our holding in Williams, supra, is therefore controlling in the present case. Appellant’s first and second contentions are overruled.

Appellant’s third and fourth contentions are that the enhancement paragraphs of the indictment are fatally defective because they failed to allege the court in which the conviction was obtained and that they failed to allege the commission and conviction of the offense in the proper order. The indictment, after it alleges the primary offense, reads in part:

“ENHANCEMENT PARAGRAPHS
“Before the commission of the primary offense, on October 8, 1954, in Cause No. 72848, in Harris County, Texas, the Defendant was convicted of the felony of Burglary.
“Before the commission of the primary offense, and after the conviction in Cause No. 72848 was final, the Defendant committed the felony of Burglary and was convicted on April 6, 1961, in Cause No. 94949, in Harris County, Texas.”

In Arce v. State, 552 S.W.2d 163 (Tex.Cr.App.1977), we dealt with almost identical enhancement paragraphs. We there held that the enhancement paragraphs were not fatally defective and stated:

“The appellant here made no motion to quash on the ground now urged, and this court has previously held that complaints such as the appellant now makes are exceptions as to form and not to substance, and cannot be raised for the first time on appeal. Stribling v. State, 542 S.W.2d 418 (Tex.Cr.App.1976); American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974), and cases there cited.” Id., 552 S.W.2d at 164.

In the present case no motion to quash the enhancement paragraphs was filed. Our holding in Arce, supra, is equally applicable to the present case. The appellant’s third and fourth contentions are overruled.

Appellant’s final contention is that the trial judge committed error in receiving and accepting a jury verdict which failed to affirmatively state that the jury found that the defendant had been finally convicted of the two prior felony convictions alleged in the enhancement paragraphs. The verdict referred to appellant’s prior convictions merely as convictions rather than as “final convictions.”

In Scott v. State, 553 S.W.2d 361, 363 (Tex.Cr.App.1977), we reaffirmed the rule “that the averment in an indictment that a defendant has been convicted is sufficient to charge the finality of the alleged conviction,” and expressly overruled all prior decisions holding to the contrary. We can see no reason to require more specificity in a verdict than in an indictment. The appellant’s contention is overruled.

The judgment is affirmed.

      . See V.T.C.A., Penal Code, Sec. 12.42(d).


author: PHILLIPS, Judge.

text:
    Douglas Lee WALKER, Appellant, v. The STATE of Texas, Appellee.
    No. 53568.
    Court of Criminal Appeals of Texas.
    Sept. 14, 1977.
    Barry P. Helft, Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb, Reed W. Prospere and Dan C. Guthrie, Jr., Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of aggravated robbery upon a plea of not guilty. The jury assessed punishment at eight and one-half years’ confinement.

At approximately 10:30 a. m. on June 4, 1975, Willard Butler was managing a 7-11 Store on Houston School Road in Dallas. Thomas Sullivan entered the store, stood by the checkout counter and told Butler that he was waiting for a friend. Several minutes later appellant entered the store and walked down one of the far aisles. Sullivan then told appellant, “Man, you can come on and get what you want.” At that point appellant came to the checkout counter bringing an item which Butler rang up. Butler then noticed a pistol in appellant’s left hand. At appellant’s instructions, Butler began placing money from the cash register into a paper bag. Sullivan came behind the counter with a drawn gun and took Butler’s money bag and shotgun. Both Butler and a customer who had entered the store during the robbery were forced to lie on the floor while the two men fled.

In his first ground of error appellant complains his warrantless arrest was invalid and therefore any evidence seized as a result of his arrest was inadmissible. Appellant argues that the arresting officer’s decision to stop the vehicle in which he was a passenger was based completely on a police radio broadcast. It is appellant’s contention that the State failed to show the officer causing the broadcast to be issued had probable cause to do so as required by Colston v. State, 511 S.W.2d 10, Tex.Cr.App. We do not agree.

On the morning of the robbery Jackie B. Doyal, of the Dallas Police Department, was patrolling the area where the robbery occurred. His attention was caught by a particularly clean metallic blue Corvair which was parked near the 7-11 Store with the driver’s door slightly ajar. At the time Doyal thought the ear had run out of gas. Five minutes later he heard the armed robbery call and immediately returned to the scene, by which time the Corvair had been moved.

Witnesses who had arrived at the store and remained in their cars while the robbery was taking place told investigating officers that two men had run behind the store in the direction of the street on which the Corvair had been parked. Shortly thereafter they also heard an automobile start in that direction. At this point Officer Doyal gave the investigating officers a description of the Corvair. Officer Charles Sanders of the Dallas Police Department arrived after the other investigating officers and searched the scene for physical evidence. On a foot trail behind the shopping center where the 7-11 was located and approximately 30 feet from the street where Officer Doyal had observed the Cor-vair, Sanders found the shotgun. A description of the Corvair was then broadcast as a possible getaway car.

Officer J. F. Berry testified that at approximately 10:45 or 11:00 a, m. he heard a broadcast describing the possible getaway car as a clean silver-blue Chevrolet Corvair, approximately a 1965 to 1975 model. The broadcast also included a description of the two men believed to be occupying the car. While Berry was eating lunch that afternoon he saw through the restaurant’s window a very clean silver-blue Corvair occupied by two black males on the South Central Expressway. He had been looking for the car since the armed robbery broadcast that morning.

Berry and two other officers pursued the car. Officer Berry turned on his flashing red lights and, when the Corvair attempted to make a U-turn, forced it off the road. A pat-down search of appellant, the passenger in the car, revealed two pistols. Both suspects were then handcuffed and placed in patrol cars. During the search of the Cor-vair some rolls of coins and paper currency were found in the glove box. Officer Berry stated his sole purpose in stopping the Cor-vair was because the car and occupants matched the description he had heard on the radio broadcast.

The facts before us in the instant case resemble those of Washington v. State, 518 S.W.2d 240, Tex.Cr.App., in which the police officer who made the broadcast was at the scene of the robbery shortly after it occurred, interviewed witnesses who had seen the getaway car and then testified at trial.

Here Officer Doyal observed a car on routine patrol. After hearing about a robbery in that same area, he returned and the car was gone. Other investigating officers interviewed witnesses at the scene who saw the two men run toward the street where the car had been parked and heard a car starting. Thus the investigating officers were able to get a description of the suspects from eye witnesses and of the possible getaway car from the observant Officer Doyal. As the result of their investigations, a description of the men and car was broadcast.

The observations of Officer Doyal, together with the information supplied by witnesses at the scene, were more than sufficient probable cause to support stopping the Corvair to question the occupants. See Myre v. State, 545 S.W.2d 820 Tex.Cr.App. As in Guzman v. State, 521 S.W.2d 267 Tex.Cr.App., the radioed police broadcast, based on probable cause reporting a felony and description of the suspects and the possible getaway car was sufficient to satisfy the requirements of probable cause under Art. 14.04, V.A.C.C.P.

Under the facts before us the officers were authorized to arrest appellant; the search incident to the arrest was authorized, and the fruits of the search were admissible into evidence. Appellant’s first ground of error is overruled.

Next appellant complains his Fifth Amendment right to silence at the time of arrest was violated when the prosecutor asked Officer Berry, “Walker didn’t say, ‘Hey, police officers, I’ve got these two guns in my belt?’ ” Appellant’s objection to this unanswered question was sustained and the jury was instructed to disregard the question; however, the trial judge overruled the appellant’s motion for mistrial.

Generally the mere asking of an improper question will not call for reversal unless it results in obvious harm to the appellant. Graham v. State, 546 S.W.2d 605 Tex.Cr.App. Here the complained of question followed immediately after these inquiries by defense counsel:

“Q And when the car did stop, the driver got out and walked back to you, is that right?
A Yes, sir.
Q Didn’t make any attempt to run or anything like that?
A No, sir.
Q And the passenger just sat in the car, is that right?
A Yes, sir.
Q And waited until the other officer told him to get out?
A Yes, sir.”

We note that the matter was not pursued by the prosecutor. Ashley v. State, 527 S.W.2d 302. This fact situation does not present us with one of those extreme cases where it appears that the complained of question was clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Sheppard v. State, 545 S.W.2d 816, Tex.Cr.App. The trial judge’s prompt instruction to disregard was sufficient to cure error in asking the question.

In his final ground of error appellant argues the trial court erred by allowing the State to call appellant as a witness at the punishment phase of the trial. Appellant contends this action forced him to incriminate himself concerning two prior convictions and was fundamental error despite his failure to object. We do not agree.

Although not on all fours with the facts before us, the cases of Stratman v. State, 436 S.W.2d 144, Tex.Cr.App., and Brumfield v. State, 445 S.W.2d 732, Tex.Cr.App., are instructive. Stratman involved the defendant’s waiver of jury trial in which the judge conducted a bifurcated trial to the court. During the guilt stage the defendant testified in his own behalf and admitted on cross examination that he had been convicted of three prior felonies. Following argument by counsel, the court announced that each side could reopen to put on evidence for the court’s consideration on punishment. At that point the defendant was called by the State over objection by his counsel. The defendant then identified the records of his prior convictions.

On appeal the defendant’s contention that he had not been called for further cross examination but rather as an adverse witness at a separate hearing was rejected by this Court. In overruling defendant’s claim that he had been compelled to incriminate himself in violation of his rights under the due process and equal protection clauses, Judge Woodley first noted that there was no statute requiring a separate hearing on punishment in a trial before the court. Judge Woodley, writing for the Court, went on to note that there would have been no reversible error had all the defendant’s later testimony been elicited by the State on cross examination for impeachment purposes.

The plurality in Brumfield, while agreeing that Stratman was correctly decided, did not agree that when a defendant takes the stand at the trial on the issue of guilt and the State fails to utilize certain convictions available to it for purposes of impeachment of the defendant’s credibility as a witness in his own behalf, the State would then be permitted to recall the defendant at the penalty hearing and interrogate him about such convictions in order to prove his prior criminal record. The plurality was concerned that such a reading of Stratman would permit an extension of its holding to allow the recall of a defendant as a witness for the State if the evidence would have been admissible at the guilt stage for impeachment purposes, even though it was later sought to be admitted for quite different purposes. We agree with the plurality’s concern and would adopt a decision to overrule Stratman to the extent of any conflict.

However, as noted earlier, the facts presented here differ from those presented in either Stratman or Brumfield. Unlike Stratman, the case before us involves a trial by jury. Unlike Brumfield, there was no objection made to appellant’s recall to the stand.

Finding no reversible error, we affirm the judgment of the trial court.

DOUGLAS, J., concurs in the results.


author: ONION, Presiding Judge.

text:
    John F. GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 53617.
    Court of Criminal Appeals of Texas.
    Sept. 14, 1977.

      Bill A. Davis, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., Lubbock, and Warren G. Tabor, Jr., Levelland, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of escape by using a deadly weapon. V.T.C.A., Penal Code, § 38.07(d). Punishment was assessed at life imprisonment following a verdict that appellant was guilty of the primary offense and had been twice previously convicted of felony offenses. V.T.C.A., Penal Code, § 12.42(d).

The record reflects that on July 12, 1975 appellant and two other inmates of the Lubbock County jail escaped from their cell block by sawing a support bar. Using a knife and the support bar as weapons, they subdued a jailer, took his keys and opened the cell block door and freed eight other prisoners. They rode the elevator to the first floor and then fled through the south door of the jail.

The indictment alleged, among other things, that the appellant had been previously convicted of burglary on March 25, 1963 in the 99th District Court of Lubbock County in Cause No. 8841, and that after such conviction became final he had been convicted of robbery by assault on June 27, 1966 in the said 99th District Court in Cause No. 10,471.

Among appellant’s grounds of error is the contention that the State failed to prove that the 1966 robbery conviction was for an offense that was committed subsequent to the alleged 1963 conviction having become final. He thus contends that the punishment was improperly enhanced, entitling him to a new trial. We agree and reverse. V.T.C.A., Penal Code, § 12.42(d), provides:

“If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.” (Emphasis supplied.)

§ 12.42(d) preserves the former Article 63, Vernon’s Ann.P.C., 1925, known as the habitual criminal statute. ’ See Practice Commentary, V.T.C.A., Penal Code, § 12.42.

Under said Article 63, it was well established that the statute was reformatory in nature and that the second conviction alleged to enhance the punishment under that statute must have been for a non-capital felony committed after the first conviction alleged for a non-capital felony. See Wheat v. State, 442 S.W.2d 363 (Tex.Cr.App.1969), and cases there cited.

In Rogers v. State, 168 Tex.Cr.App. 306, 325 S.W.2d 697 (1959), this court stated:

“. . . [t]o invoke the provisions of Article 63 . . . it is necessary that each succeeding conviction be subsequent both in point of time of the commission of the offense and the conviction therefor. Guilliams v. State, 159 Tex.Cr.R. 81, 261 S.W.2d 598, and cases cited.
“The indictment must so allege and the averments of the indictment must be supported by proof. Arbuckle v. State, 132 Tex.Cr.R. 371, 105 S.W.2d 219, 221; Armendariz v. State, 163 Tex.Cr.R. 515, 294 S.W.2d 98, 99.”

While V.T.C.A., Penal Code, § 12.42(d), makes no reference to and is not limited to non-capital felonies, the proof requirements of former Article 63 as described in Rogers were made more explicit in the language of the new statute.

In the instant case the State introduced pen packets from the Department of Corrections, including the judgments and sentences in said Cause Nos. 8841 and 10,-471. None of these instruments reflect the date of the commission of the robbery which was the subject of the 1966 conviction in Cause No. 10,471. The indictment in Cause No. 10,471 was not introduced. On cross-examination, it was elicited from the appellant that he was convicted on March 25, 1963 in Cause No. 8841 and served about eighteen months in the Department of Corrections and then later was tried and convicted of robbery in Cause No. 10,471. Here again no evidence of the date of the commission of the said robbery was established.

Since the record contains no evidence of the date of the commission of the robbery offense charged in Cause No. 10,471 and the statute of limitation for robbery was five years (Article 12.03, Vernon’s Ann.C.C.P., 1965 [effective Jan. 1, 1966] or Article 179, Vernon’s Ann.C.C.P., 1925), we cannot conclude that the 1966 conviction (Cause No. 10,471) was for an offense committed after the prior 1963 conviction had become final.

Although the error relates only to the punishment, the issue of punishment was before a jury in a bifurcated trial under Article 37.07, Vernon’s Ann.C.C.P. Therefore, the appellant is entitled to a new trial. Bray v. State, 531 S.W.2d 633 (Tex.Cr.App.1976); Wiggins v. State, 539 S.W.2d 142 (Tex.Cr.App.1976).

The judgment is reversed and the cause remanded.

      . The State asserts in its brief that the dates of the commission of both offenses are stated as findings in the judgments in Cause Nos. 8841 and 10,471. It is well settled that a recital in the judgment of conviction specifying the date of the offense constitutes sufficient evidence of that date for the purposes of said § 12.42. Loud v. State, 499 S.W.2d 295 (Tex.Cr.App. 1973); Espinosa v. State, 463 S.W.2d 8 (Tex.Cr.App.1971); Von Burleson v. State, 505 S.W.2d 553 (Tex.Cr.App.1974); Green v. State, 542 S.W.2d 416 (Tex.Cr.App.1976). We have examined the judgments, the sentences and all other instruments and find no recitals as contended by the State.

      . The pen packet reveals that appellant arrived at the Department of Corrections on April 12, 1963.


author: DOUGLAS, Judge.

text:
    James Dennis TATOM, Appellant, v. The STATE of Texas, Appellee.
    No. 53718.
    Court of Criminal Appeals of Texas.
    Sept. 14, 1977.

      Herbert Green, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Sue Lagarde and Andy Anderson, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for unlawfully carrying a club. The court assessed punishment at a fine of $200.00 and thirty days in jail, probated.

On October 2, 1974, Dallas police officers Anthony Risner and D. L. Whitfield stopped a van that was speeding. Appellant was the driver and his brother, Anthony Tatom, was a passenger. As the officers approached they observed a pair of “nun-chucks” between the seats on the engine cover. A nun-chuck consists of two sticks which are connected by chain or cord. They are used by those trained in the discipline of karate. The brothers were arrested for unlawfully carrying a weapon.

Appellant contends that a nun-chuck is not a club as that term is defined in Y.T.C.A., Penal Code, Section 46.01(1). That Section provides:

“ ‘Club’ means an instrument that is specifically designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument, and includes but is not limited to the following:
“(A) blackjack;
“(B) nightstick;
“(C) mace;
“(D) tomahawk.”
V.T.C.A., Penal Code, Section 46.02(a), provides, in part:
“A person commits an offense if he intentionally, knowingly or recklessly carries on or about his person a . club.”

Anthony Risner was an experienced officer. He testified that the nun-chucks were commonly used as a club.

Anthony Tatom testified that he had studied the historical development of nun-chucks. He related that the ancient Orientals originally utilized a form of that instrument as a farm tool, but later began using it to defend themselves from attack. Eventually it came to be used solely as a weapon by those trained in the martial arts.

Tatom described a nun-chuck as “two pieces of round wood like that with a piece of rope or chain that connects them.” But he denied that it was used as a club.

He further testified as follows:

“Q. Based upon your knowledge of nun-chucks, in your opinion, are nun-chucks, be they a club or whatever you wish to describe them as, would you define it as an instrument that is specially designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instruments?
“A. It’s according to who has them.
“Q. It’s according to who has them like a gun that is used by somebody who knows what and how to shoot and aim at a person and kill a person, but a nun-chuck in the hands of someone unschooled and what what is it, karate?
“A. Yes, sir.
“Q. A person unschooled in karate such as myself, for instance, I couldn’t do much with them, just whip them around?
“A. You probably couldn’t whip them around without hurting yourself.
“Q. Probably hit me on the head?
“A. And you could hurt yourself with them.
“Q. Let me ask you this, Mr. Tatom: In the hands of an experienced individual, one experienced in the martial arts, could the nun-chucks be used by a skilled person to inflict serious bodily injury or death?
“A. If you — yes, I guess like a black belt or something like that.
“Q. But, it takes training to do it?
“A. Yes, sir, like I was at that time, I was interested in karate and stuff like that and I found a few black belts that said they don’t even let anybody touch or even train with nun-chucks until we — they are well into their training.
“Q. Okay.
“A. They said they are too dangerous— you know, for yourself to be trying to do anything and you have to be a very good trained person.
U * * *
“Q. Actually, these are really — these are really just two sticks tied together with some rope?
“A. Actually—
“Q. In other words, these are not real nun-chucks, are they?
“A. No.
u * * *
“Q. I mean, in other words, you can’t use these nun-chucks to strike or touch anything with, can you?
“A. No.
U * * *
“Q. You would say these are sticks just tied together with rope for practicing?
“A. Yes, sir. Those aren’t the right size to be a weapon.
u * * %
“Q. Anthony, you wouldn’t want anybody to whack you over the head with those, would you?
“A. No, sir.”

The pair of nun-chucks in question are in the record. One of the alleged weapons consists of two pieces of laminated wood. Each piece is over eleven inches long and is an inch in diameter. Holes have been drilled in the center of an end of each piece and at an inch below. The rope connecting the two pieces of wood is threaded through the four holes and knots are tied on the side of each piece. There is three inches of rope between the ends of each piece of wood. Observing them, we hold that the trial judge had before him sufficient evidence to conclude that they were designed for the purpose of inflicting serious bodily injury or death upon a person by striking him. Whether the weapon was used solely for karate practice or not, or whether it was used solely for defensive purposes, the evidence sufficiently demonstrated that it was a club as defined in the statute.

Appellant’s other contention is that the evidence was insufficient to show that he intentionally and knowingly carried on or about his person a club. Under the former statute, Article 483, V.A.P.C. (1925), Unlawfully Carrying Arms, the intention of the accused was immaterial since the statute did not make intent an element of the offense. Farris v. State, 64 Tex.Cr.R. 524, 144 S.W. 249 (1912). See also Lewis v. State, 84 Tex.Cr.R. 499, 208 S.W. 516 (1919). This is no longer true under the Penal Code of 1974.

Section 46.02, supra, requires proof that the accused intentionally, knowingly or recklessly carried on or about his person an unlawful weapon. We must consider whether the evidence in the instant case was sufficient to show the requisite intent.

Officer Risner testified that the weapon was on or about appellant’s person when he was arrested. According to both Risner and Anthony Tatom, it was in open view on the engine cover between appellant and his brother. Anthony further testified that he owned the weapon and that appellant was not aware that it was in the vehicle until they were stopped.

The court may accept or reject any part or all of the witnesses’ testimony. On appeal, we must view the evidence in the light most favorable to the State. We conclude that that evidence was sufficient for the trial court to conclude that appellant intentionally and knowingly carried on or about his person a club.

The judgment is affirmed.


author: BROWN, Commissioner.

text:
    Ernesto MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 53763.
    Court of Criminal Appeals of Texas.
    Sept. 14, 1977.
    William C. Sherk, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., Thomas C. Roepke, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant, in a trial before the court, was found guilty of forgery by passing and the court assessed his punishment at five years.

The judgment which consisted of a printed form with blanks filled in by typewriter recited that: “There upon the defendant, in person and in open court, waived in writing the right to a trial by jury, and requested the consent and approval of the court to waive said rights, and whereas such consent and approval of the attorney representing the State, in writing duly signed by said attorney was filed in the papers in said cause before the defendant entered the plea of not guilty, and the consent and approval of the court in writing duly signed by the court was filed, with all of such evidence, in the file of the papers of the cause and it appears that all prerequisites required by law for the waiving of these rights have been performed, therefore, the court now gives its consent and approval for the said defendant to waive said rights.” Appellant filed his objection to the record for the reason that the above-quoted recitation in the judgment was untrue in that no such waiver and consent had been executed.

A hearing was conducted by the court. The court reporter testified that there was no mention of a jury waiver in her notes. The court clerk testified that there was no jury waiver in appellant’s file and that he had made a search of other case files to insure that the alleged jury waiver had not been misfiled in some other defendant’s jacket through error. He stated that despite his thorough search he had not found a written jury waiver in appellant’s case. Neither the prosecutor nor appellant’s trial counsel had any independent recollection of having executed a jury waiver nor of appellant having executed one. The trial judge stated for the record that he not only did not have an independent recollection of appellant having signed a waiver or of the approval of the same by the prosecutor or the court, but that he did not even have any recollection of appellant’s case at all.

Appellant was very careful to follow the suggestion of Presiding Judge Onion as to the means of preserving such error as set out in Boening v. State, Tex.Cr.App., 422 S.W.2d 469, wherein, at page 473, it was stated:

“If such recitations in the judgment were not correct, then we observe that no objections to the approval of the record were offered by the appellant prior to or at the hearing on the approval of the record conducted by the trial judge as authorized by Article 40.09, Section 7, V.A.C.C.P.
“We further call attention to the provisions of Article 44.24, V.A.C.C.P. (Presumptions on Appeal) which requires this Court to presume, among other things, that the defendant was arraigned unless such matter was made an issue in the court below, or unless it affirmatively appears to the contrary from the record.”

From the record of the hearing it is apparent that there is no evidence to support the recitation in the judgment that a written jury waiver was executed and filed with the papers in this cause.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: GREEN, Commissioner.

text:
    Ben VALDEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 53811.
    Court of Criminal Appeals of Texas.
    Sept. 14, 1977.
    Jerry D. Patchen, Houston, Gerald M. Birnberg, Bellaire, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and Ken W. Sparks, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before the court on a plea of not guilty, appellant was found guilty of possession of a usable amount of marihuana in excess of four ounces. Punishment was assessed at ten years, probated.

A review of the record discloses that fundamental error accompanied the admission of appellant’s stipulation of evidence, and upon the authority of Hughes v. State, Tex.Cr.App., 533 S.W.2d 824; Rodriquez v. State, Tex.Cr.App., 534 S.W.2d 335; Rangel v. State, Tex.Cr.App., 464 S.W.2d 858, and Elder v. State, Tex.Cr.App., 462 S.W.2d 6, the judgment must be reversed.

The trial was conducted on August 20, 1975. The docket sheet entry of that date reads:

“The defendant Valdez appeared in person with counsel Jerry Patchen. Defendant, duly arraigned according to law, in open court pleaded not guilty. Defendant waived formal reading of the indictment. Defendant filed written waiver of trial by jury. State offered written Stipulation of evidence. Both sides rested.”

The docket sheet reflects that on that date the court found the defendant guilty, but postponed assessing punishment until a later date. Punishment of ten years with probation was assessed October 23, 1975.

The stipulation of evidence signed and sworn to by appellant and approved by the defense and prosecuting attorneys is included in the record. It provides in the opening paragraphs as follows:

“After BEN VALDEZ, the Defendant in the above numbered and entitled case, plead not guilty, the following written stipulation was made.
“It is hereby stipulated between the State of Texas, represented by Assistant District Attorney, Kenneth Sparks, and by the Defendant, Ben Valdez, with the approval of his retained counsel, Jerry D. Patchen, that if:
“Sgt. R. A. Barnard, a Houston Police Officer, were called as a witness, after being duly sworn he would testify that on December 24, 1974, at approximately 5:30 p. m., . . .”

It proceeds with a recitation of what Sgt. Barnard, subject to appellant’s objection of an illegal search and seizure, would testify, and also what a chemist would testify. An examination of the record fails to reveal that appellant waived in writing his right to the appearance, confrontation and cross-examination of the witnesses and to the introduction of documentary evidence. The State admits in its brief that appellant did not consent in writing to waive these matters, and says:

“Since the ‘Stipulation of Evidence’ was offered by the State (R. 50, 64), it was not in compliance with the mandate of Article 1.15, supra (V.A.C.C.P.) and cannot be considered as evidence. Hughes v. State, 533 S.W.2d 824 (Tex.Cr.App.1976).”

Art. 1.15, V.A.C.C.P., provides that in cases where trial by jury is waived the evidence may be stipulated “if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses and any other documentary evidence in support of the judgment of the court.” The statute further provides: “Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers in the cause.” This Court has consistently held that compliance with this statute is mandatory in order for the stipulation to be considered as evidence. Hughes v. State, supra; Rodriquez v. State, supra; Rangel v. State, supra; Elder v. State, 462 S.W.2d 6. The statute applies whether the stipulation relates to what a witness would testify or to the truth of an allegation in the indictment. Elder, supra.

The stipulation of the testimony which would be given by Sgt. Barnard and by the chemist if they were present in court was not in compliance with the requirements of Art. 1.15, V.A.C.C.P., since it did not expressly waive appellant’s right to the appearance, confrontation, and cross-examination of the witnesses and’ it was not approved by the court in writing. Hughes v. State, supra.

Although the State concedes that the stipulation was not admissible, and could not be considered by the trial court as evidence, it argues: “As there is not a transcription of the court reporter’s notes in the record, the remainder of the trial, as a matter of law, is unknown to the appellate court” and hence “there can be no review of the sufficiency of the evidence.” As shown by the court’s docket sheet, supra, the State offered the stipulation and both sides rested. There is no indication in the record that any other evidence was given at the trial other than the stipulation and the documents to which it referred. Without the stipulation, there is no evidence supporting the conviction.

The judgment is reversed, and the cause is remanded.

Opinion approved by the Court.


text:
    Linda Gay WYGAL alias Lynda Hoke, Appellant, v. The STATE of Texas, Appellee.
    No. 54812.
    Court of Criminal Appeals of Texas.
    Sept. 14, 1977.
    Frank P. Smarzik, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and R. P. Skip Cornelius, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from an order revoking probation.

On February 24,1975 appellant entered a plea of guilty before the court to theft of a credit card. On March 14, 1975 the court assessed punishment at ten (10) years in the Department of Corrections and at a fine of $500.00. The imposition of the sentence was suspended and the appellant was placed on probation subject to certain probationary conditions, including the requirement of “abiding by and not violating the laws of this state or of any other state or of the United States.”

On May 24, 1976 the State filed a motion to revoke probation, alleging the appellant violated the foregoing condition of probation in

“That Lynda Wygal alias Lynda Gay Hoke, on or about April 1,1976, in Harris County, Texas, did then and there unlawfully appropriate property, namely, one automobile, of the value of over two hundred dollars and under ten thousand dollars, with the intent to deprive the owner, Tim Evans, of the property. And in the County of Harris and State of Texas, one Lynda Wygal alias Lynda Gay Hoke, hereinafter referred to as the Defendant, heretofore on or about April 2, 1976, did then and there unlawfully appropriate property, namely one automobile, of the value of over two hundred dollars and under ten thousand dollars, with the intent to deprive the owner, Ben Dwoskin, of the property. And all of said amounts were obtained, as alleged, in one scheme and continuing course of conduct, and the aggregate amount of the amounts stolen was over ten thousand dollars.”

On June 18, 1976 the court, after a hearing on said motion, revoked probation upon a finding that appellant had unlawfully appropriated the automobile of Ben Dwoskin. The punishment originally assessed was then reduced from ten years to seven years.

On appeal appellant complains the court abused its discretion in revoking probation since the evidence was insufficient to show the appellant had violated the condition of probation as alleged.

John Kelleher, Special Agent, F.B.I., testified that on April 1, 1976 he and Agent Blankenbueller, while conducting an investigation into stolen cars, set up a surveillance of the parking lot of Liberty Savings Association at Westheimer and Montrose Avenues in Houston. He had received information that stolen cars might be left on such parking lot. He observed one car there which fit the general description given, and then saw a yellow Dodge Charger being parked on the lot. The lone male driver got out and walked towards Westh-eimer and crossed the street and got into the passenger side of a little red sports car, which pulled away immediately. Kelleher could not see who was driving the car, whether male or female, and was unable to determine how many people were in the car. He thought the car was either a Toyota or a Mazda and believed the license number was GCN 854. He later checked and discovered that the Yellow Dodge Charger was stolen. He turned his information over to the Houston Police Department.

Detective W. C. Robertson of the Houston Police Department set up a surveillance at the Liberty Savings parking lot on April 2,1976 after receiving information from the F.B.I. and after two stolen Dodge automobiles had been recovered from that lot on April 1, 1976. He also had the description and license number of a stolen 1976 Continental Mark IV automobile. During the surveillance, he observed one Jerry Thurman drive the described Mark IV onto the parking lot and leave it there. He observed Thurman cross to the north side of West-heimer and walk east. He then saw a red Mazda located on the Prince Drive-In’s parking lot pull forward and saw Thurman get in the passenger side. Robertson then followed the red Mazda, license number GCN 954, west on Westheimer for several blocks and then stopped the car. Appellant was the driver and Thurman was the passenger. They were arrested. He acknowledged that anyone on the Prince Drive-In parking lot could not see or observe the parking lot of Liberty Savings because the savings association building was three to four stories high, blocking all view.

Ben Dwoskin, credit manager for Southwest Lincoln-Mereury, stated the Mark IV automobile in question, described by license number and serial number, had been stolen from his company on April 1 or 2,1976, that it had been in his care, custody and control, and he had given no one permission to take the same. He did not know who had stolen the car.

Officer D. J. Miller was present at the time of appellant’s arrest and, without objection, testified that the appellant stated she had called her house and that Jerry Thurman was there and asked her to pick him up at the Prince Drive-In on Westheimer and she did. Miller stated appellant confirmed a false address given by Thurman, but it was learned she lived at apartment 13 at 909 Silber rented to Johnny Wygal, her husband, and that Thurman stayed there. Officer Miller had determined that the red Mazda was registered to a Reggie Neville.

Tommy Vaseil, a mechanic at Sharpstown Dodge, testified that Tim Evans (complaining witness in the first count of the motion), his boss and service manager, was on vacation, but he knew a Dodge car was taken on March 31 or April 1, 1976, but he couldn’t state the exact model. He saw a man walk to the area where the cars were parked, heard a door slam and the car was driven off. Vaseil stated he had picked out a photograph of a man from those shown him by police, but he didn’t know the man’s name. When Thurman was brought into the courtroom, Vaseil could not recognize him. He stated he had never seen the appellant before.

James Lamberth was called by the appellant. He testified he lived in the same apartment complex as the appellant and that on April 2, 1976 he saw a 1976 Lincoln Continental Mark IV parked in his driveway and Jerry Thurman was standing by it. He stated that the appellant telephoned and asked to speak to Jerry, who was called to the phone. Lamberth knew appellant had no telephone in her apartment, and she often used his. He stated Jerry left in the car after the conversation. He had met Jerry at appellant’s apartment where Jerry stayed “off and on.” He related that the appellant had a Chevrolet but often drove a red Mazda owned by one Reggie who visited at the appellant’s apartment. Her husband, as far as he knew, lived in Fort Worth.

Georgia Castro testified for the defense. She lived at the same apartment complex as the appellant and was often a babysitter for appellant’s child. She related the apartment manager asked her about three cars that were parked at the complex, and on a date she believed to be April 1, 1976, she saw Jerry Thurman drive off in a yellow Dodge Charger, a curly haired man drive off in a red Mazda and another man she had never seen before drive off in a third car (sometimes referred to in the record as a blue Dodge Dart). She stated she did not see the appellant that day, and never did see her around the cars she was observing.

Jerry Thurman testified that on April 1, 1976 he had driven the yellow Charger from the apartment complex at 909 Silber to the Liberty Savings parking lot, that a man named Ron drove the blue Dodge, and Reggie Neville drove his red Mazda and picked them up near the parking lot. He stated appellant was not with them and had no knowledge of the transaction. He related that on April 2, 1976 he was ready to leave the apartment complex in the Mark IV automobile planning to take a taxi cab back to the apartment when Lamberth called him to the phone. It was the appellant, who stated she was near the Gulf Freeway and wanted to know if he needed her to pick up any bread, meat, etc. He then asked her to pick him up at the Prince Drive-In on Westheimer. Thurman then acknowledged he drove the Mark IV to the parking lot of Liberty Savings and walked to the drive-in where he met the appellant, who was driving the red Mazda. He stated appellant knew nothing about the Mark IV automobile.

He acknowledged he stayed “off and on” at appellant’s apartment during the month of March, 1976 and said the address he gave the police upon his arrest was where he actually lived until a few days before his arrest. He stated at the time of arrest he was unemployed and had borrowed money from a friend. Thurman would not admit stealing the cars, but acknowledged he took the yellow Dodge and the Mark IV to the Liberty Savings parking lot.

This then is the evidence upon which we must decide the question before us. The court revoked probation only upon the second count of the revocation motion. Ben Dwoskin testified he had no knowledge of who took the Mark IV automobile on April 1st or 2nd of 1976. Thurman was seen in possession of the Mark IV on the morning of April 2nd at the apartment complex, but appellant was not seen near the automobile. Thurman admitted he asked appellant when she telephoned to meet him at the Prince Drive-In and that he drove the Mark IV to the savings association parking lot and then walked to the Prince Drive-In to meet appellant, who he said knew nothing of the transaction. Officer Robertson admitted that an individual on the Prince Drive-In’s parking lot had no view of the parking lot of the Liberty Savings Association because of the height of the building. There is nothing in the evidence to show that the appellant participated in any way in the taking of the yellow Dodge or other cars or in placing them on the parking lot of Liberty Savings Association on April 1, 1976 or at any other time.

Clearly the evidence is insufficient to show that appellant acting alone had committed the theft of the Mark IV automobile. We turn next to the question of whether she was a party to the crime.

V.T.C.A., Penal Code, § 7.01, provides:

“(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
“(b) Each party to an offense may be charged with commission of the offense.
“(e) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.”

V.T.C.A., Penal Code, § 7.02, provides:

“(a) A person is criminally responsible for an offense committed by the conduct of another if:
“(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;
“(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or
“(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.
“(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.”

If appellant was a party to the crime, it would be by virtue of § 7.02(a)(2), supra.

In determining whether an individual is a party to an offense and bears criminal responsibility therefor, the court may look to events before, during and after the commission of the offense. Ex parte Prior, 540 S.W.2d 723, 727 (Tex.Cr.App.1976); Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975); Bush v. State, 506 S.W.2d 603 (Tex.Cr.App.1974).

“An agreement of parties to act together in a common design can seldom be proved by words, but reliance can often be had on the actions of the parties showing an understanding and a common design to do a certain act. . . . ” 16 Tex.Jur.2d, § 58, p. 171.

Participation in an enterprise may be inferred from the circumstances and need not be shown by direct evidence. Circumstantial evidence may be sufficient to show that one is a party to the offense. Ex parte Prior, supra; Westfall v. State, 375 S.W.2d 911 (Tex.Cr.App.1964).

Ben Dwoskin, the complaining witness, did not know who had taken the Mark IV automobile on April 1st or 2nd. There was no evidence to place the appellant at the scene of the offense. Thurman alone was in possession of the car on the morning of April 2nd. Appellant was not with him. As in Suff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976), the record is silent as to any direct burden of any common purpose or design. She did pick Thurman up at the Prince Drive-In at his request, but as Officer Robertson testified, she could not observe the Liberty Savings parking lot or Thurman’s activities there because the view was blocked by the building. Thurman did live at appellant’s apartment and when arrested he gave his former address, which she confirmed. The question is whether these circumstances are sufficient to show that appellant was a party to the offense. We conclude they are not sufficient to show she acted with intent to promote or assist the commission of the offense, by soliciting, encouraging, directing, aiding, or attempting to aid another person to commit the offense. Her act of picking up Thurman at the Prince Drive-In and confirming the false address given by Thurman came after the offense had been completed.

It is true that the majority has held that the State’s burden of proof in revocation proceedings is by a preponderance of the evidence, Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1974), but it was made clear the trial judge is not accorded absolute discretion in the decision to revoke probation.

In Reed v. State, 533 S.W.2d 35 (Tex.Cr.App.1976), the court stated:

“ . . . The fact that this Court has held that the standard of proof that the State must meet in proving offenses upon which the State relies in revocation of probation proceedings is by a preponderance of the evidence rather than beyond a reasonable doubt does not relieve the State of the burden of proving every element of the offense. . . . ”

Likewise, we hold that the burden of proof adopted in Scamardo does not relieve the State of the burden of proving the appellant was a party to the offense. This the State did not do.

Since appellant’s acts came after the completion of the theft, we observe that under the former Penal Code an accessory (after the fact) was defined in Article 77, Vernon’s Ann.P.C., 1925, as follows:

“An accessory is one who, knowing that an offense has been committed, conceals the offender, or gives him any other aid in order that he may evade an arrest or trial or the execution of his sentence. One who aids an offender in making or preparing his defense at law, or procures him to be bailed though he afterwards escape, is not an accessory.”

In Easter v. State, 536 S.W.2d 223, 228 (Tex.Cr.App.1976), the court noted the 1974 Penal Code made some notable changes with regard to parties to a crime as the distinction between a principal and an accomplice (to the crime) was abolished and an accessory (after the fact) was abolished as a party to a crime. There the court wrote:

“It clearly follows from what has been said that an accessory is no longer recognized in Texas as a party to the crime with which the accused is charged and cannot be convicted of the same. If chargeable at all, it would appear to be under said Section 38.05, which creates a separate and distinct offense. . . . ”

V.T.C.A., Penal Code, § 38.05, provides:

“(a) A person commits an offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense, if he:
“(1) harbors or conceals the other;
“(2) provides or aids in providing the other with any means of avoiding arrest or effecting escape; or
“(3) warns the other of impending discovery or apprehension.
“(b) It is a defense to prosecution under Subsection (a)(3) of this section that the warning was given in connection with an effort to bring another into compliance with the law.
“(c) An' offense under this section is a Class A misdemeanor.”

We cannot conclude that appellant, under the circumstances, was even guilty under said § 38.05, which was not charged in the revocation motion.

The judgment is reversed and the cause remanded.

      . The license number is at variance with that given by Kelleher but Robertson said GCN 954 was the license number given by the F.B.I.

      . Robertson testified the district attorney’s office would not at first accept charges against the appellant because of insufficient evidence.

      . Mere presence alone will not constitute one a party to the offense. Ex parte Prior, supra; Johnson v. State, 537 S.W.2d 16 (Tex.Cr.App.1976); Childress v. State, 465 S.W.2d 947 (Tex.Cr.App.1971). Nevertheless, it is a circumstance tending to prove that a person is a party to the offense and when taken with other facts may be sufficient to show that he was a participant. Ex parte Prior, supra; Johnson v. State, supra; Coronado v. State, 508 S.W.2d 373 (Tex.Cr.App.1974).