author: ROBERTS, Judge. VOLLERS, Judge, DOUGLAS, Judge.

text:
    Robert GORDON, Appellant, v. The STATE of Texas, Appellee.
    Nos. 57414, 57415.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 27, 1978.
    Opinion On State's Motion For Rehearing Jan. 10, 1979.

      Jeffrey A. Kearney, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, Joseph Drago, III, Stephen R. Chaney and Candyce W. Howell, Asst. Dist. Attys., Fort Worth, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

These are appeals from orders of the court revoking the appellant’s probation in two cases. [Cause No. 10085 (our Cause No. 57.414) and Cause No. 10238 (our Cause No. 57.415) in Criminal District Court No. 3 of Tarrant County.] The trial judge found that the appellant had violated a condition of each of his probations, and sentenced the appellant in each case to four years’ confinement in the Texas Department of Corrections. However, the sentence in Cause No. 10238 (our Cause No. 57,415) reflects that the trial judge ordered that the punishment in Cause No. 10238W (our Cause No. 57.415) would not begin until the judgment and sentence in Cause No. 10085 (our Cause No. 57,414) had ceased to operate.

The appellant contends that the allegations in the State’s motion to revoke were fundamentally defective and that the trial judge could not cumulate the sentences.

On May 12, 1977, the appellant pleaded guilty to the offense of unauthorized use of a motor vehicle in Cause No. 10085 (our Cause No. 57,414) and to the offense of theft of property over $200 and under $10,-000 in Cause No. 10238W (our Cause No. 57.415). The appellant was assessed a four-year probationary term in each case. One of the conditions of each of the appellant’s probations was that he “a. [c]ommit no offense against the laws of this State or any other State or the United States.”

On June 13,1977, the State filed a motion to revoke in both of the cases. Each motion alleged, in part, that the appellant had violated a condition of his probation in that:

“[T]he said ROBERT GORDON, in the County of Tarrant and State aforesaid, on or about the 8th day of June, 1977, did then and there unlawfully, intentionally and knowingly operate, without the effective consent of the owner, Leroy Rogers, one motor-propelled vehicle, to-wit: automobile, against the peace and dignity of the State.”

On July 26 and 27, 1977, a hearing was held on the State’s motions. At the close of that hearing, the trial judge found that the appellant had violated a condition of each of his probations by unlawfully, intentionally and knowingly operating an automobile without the effective consent of Leroy Rogers, the owner, as alleged in the motion to revoke. The trial judge sentenced the appellant to four years’ confinement in each case, but further ordered that the punishment in Cause No. 10238W (our Cause No. 57,415)would not begin until the judgment and sentence in Cause No. 10085 (our Cause No. 57,414) had ceased to operate.

The evidence adduced at the hearing reveals that on the evening of June 8,1977, at approximately 9:30 p. m., Gary Utley, a manager at Bill McDavid Pontiac in Fort Worth, heard what sounded like a vehicle running into a chain at the east end of the car lot. At the same time, he heard a customer yell, “The guy’s stealing the car.” Utley saw a 1975 Chevrolet El Camino being driven over a chain blocking the exit from the car lot. Utley ran to his car and pursued the El Camino for approximately six blocks. At that time, he saw the driver. Utley then stopped pursuing the El Camino and returned to the car lot. When he returned to the car lot, Officer Dan Miller of the Fort Worth Police Department had arrived to investigate the incident. Utley explained what happened and Miller broadcast a description of the El Camino and the license plate number over his police radio.

Shortly thereafter, Officers Chesshire and Owen, each in a marked police car, and Officer Thompson, on a police motorcycle, located the El Camino and a high speed chase ensued. Additional police units, including a police helicopter, assisted Ches-shire, Owen and Thompson. During the chase, Owen saw the appellant driving the El Camino.

Eventually, the El Camino was driven to 314 Templeton. The appellant and the passenger got out and started to run around the house located at 314 Templeton. Thompson continued to pursue the two men, first on his motorcycle and later on foot, and he eventually caught both men. However, the appellant broke away from Thompson and attempted to gain entry into the house at 314 Templeton. At that time, Chesshire apprehended the appellant.

The appellant’s first contention is that the State’s allegations in the motions to revoke were fundamentally defective for failing to allege what condition of his pro-bations the appellant allegedly violated.

In each case, the State’s motions for revocation alleged:

“the Defendant, ROBERT GORDON, was ordered by the Court to commit no offense against the laws of this State or any other State or the United States. The Defendant, ROBERT GORDON, in the County of Tarrant and State of Texas, on or about the 8th day of June, 1977 did then and there knowingly and intentionally appropriate property, other than real property, to-wit: one automobile of the value of $200, or more, but less than $10,000. from the owner, Leroy Rogers, without the effective consent of the owner and with intent to deprive the owner of the property;
“COUNT TWO: and it is further presented in and to said Court that the said ROBERT GORDON, in the County of Tarrant and State aforesaid, on or about the 8th day of June, 1977, did then and there unlawfully, intentionally and. knowingly operate, without the effective consent of the owner, Leroy Rogers, one motor-propelled vehicle, to-wit: automobile, against the peace and dignity of the State.”

In each case, the trial judge’s order revoking probation relied on the second paragraph of the State’s allegations. In neither case did the appellant file a motion to quash on the basis of the ground relied upon on appeal.

In Garner v. State, 545 S.W.2d 178, 179 (Tex.Cr.App.1977), we stated:

“[WJhile the allegations in a motion to revoke probation do not require the same particularity of an indictment or information, in all fairness the allegations as to violation of probation should be fully and clearly set forth in the revocation motion, so that the defendant and his counsel might be informed as to that upon which he will be called to defend.” (Citations omitted)

We hold that the appellant was given fair notice that the State was going to attempt to prove that the appellant had violated condition “a” of his probationary terms.

Furthermore, in the absence of a motion to quash, - any error was waived. Johnson v. State, 498 S.W.2d 198 (Tex.Cr.App.1973). Cf. Barrow v. State, 505 S.W.2d 808 (Tex.Cr.App.1974). Appellant’s first contention is without merit.

The appellant’s second contention is apparently one of first impression for this Court: Does a trial judge have the power to order a cumulation of sentences when he revokes felony probation and neither the original judgment suspending the imposition of sentence and placing the defendant on probation nor the order placing the defendant on probation provides for a cumulation of the sentences?

Our inquiry begins with Article 42.08, . Vernon’s Ann.C.C.P., which states:

“When the same defendant has been convicted in two or more cases, and the punishment assessed in each case is confinement in an institution operated by the Department of Corrections or the jail for a term of imprisonment, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction, except that in the discretion of the court, the judgment in the second and subsequent convictions may either be that the punishment shall begin when the judgment and sentence in the preceding conviction has ceased- to operate, or that the punishment shall run concurrently with the other case or cases, and sentence and execution shall be accordingly.”

It is well established that where a trial judge does not order that two sentences in two different prosecutions shall be cumulative, the terms of imprisonment automatically run concurrently; Ex Parte Reynolds, 462 S.W.2d 605 (Tex.Cr.App.1970). Thus, the appellant argues that since the judgments placing him on probation did not indicate that the sentences were to be cumulative, the attempted cumulation after revocation was ineffective.

In Ex Parte Crawford, 36 Tex.Cr.R. 180, 36 S.W. 92 (1896), this Court held that where a cumulation order was attached to and made a part of the sentence rather than the judgment proper, the cumulation order was not void; that the sentence is in fact the final judgment in a case; and that while a cumulation order could be placed in both the judgment and the sentence, there is no necessity that the order be placed in both the judgment and the sentence. Therefore, this Court held that a cumulation order in a sentence is proper.

In cases where felony probation is granted, there is no sentence until after probation is revoked, if at all, because the imposition of sentence is suspended. Article 42.-12, Vernon’s Ann.C.C.P.; Teel v. State, 432 S.W.2d 911 (Tex.Cr.App.1968). Therefore, the trial judge in the present case could not have placed the cumulation order into the sentence until the appellant’s probations were revoked. However, this does not mean that the trial judge could not have properly placed the cumulation order into the judgment granting probation and the order granting probation.

Thus, the underlying issue that must be resolved is when does a trial judge have to order the cumulation of punishment where he has suspended the imposition of sentence and placed the defendant on felony probation. In other words, must the trial judge order cumulation when he grants felony probation and include such order in the judgment granting probation (and in the order placing the appellant on probation), or can he wait until he revokes probation and formally sentences a defendant?

This issue is rendered more complicated by what we noted earlier; under our holding in Ex Parte Crawford, supra, a cumulation order will be effective if it is in either the judgment or the sentence. Thus, the obvious extension of Ex Parte Crawford would be to hold that the trial judge’s action in the present case was proper.

However, two additional factors distinguish the situation where felony probation is granted from the situation where felony probation is not granted. First, Article 42.-12, Vernon’s Ann.C.C.P., is violated by a trial judge if a cumulation order is entered when he revokes probation. Article 42.12, Section 8(a), Vernon’s Ann.C.C.P. states, in part, that:

“If probation is revoked, the court may proceed to dispose of the case is if there had been no probation, or if it determines that the best interests of society and the probationer would be served by a shorter term of imprisonment, reduce the term of imprisonment originally assessed to any term of imprisonment not less than the minimum prescribed for the offense of which the probationer was convicted.”

Thus, Article 42.12, Section 8(a), Vernon’s Ann.C.C.P., empowers a trial judge to reduce the punishment originally assessed a probationer upon revocation of probation if the best interests of society and the probationer would be served thereby. However, Article 42.12, Section 8(a), Vernon’s Ann.C. C.P., does not specifically empower a trial judge to increase the punishment originally assessed a probationer. Nor do we construe the language of Article 42.12, Section 8(a), Vernon’s Ann.C.C.P. — “[i]f probation is revoked, the court may proceed to dispose of the case as if there had been no probation” —as language empowering the trial judge to increase a probationer’s punishment upon revocation of his probation.

However, if a trial judge enters a cumulation order when he revokes a probationer’s probation, the punishment in the probated case would be effectively increased due to the cumulation order. For example, in the present case, the judgments placing the appellant on probation reflect that the appellant was assessed two four-year probationary terms. In the absence of a cumulation order, those two four-year probationary terms were to be served concurrently. Article 42.08, Vernon’s Ann.C. C.P.; Ex Parte Reynolds, supra. However, when the trial judge revoked the probationary terms, he ordered that the punishment in Cause No. 10238W (our Cause No. 57,415) would not begin until the judgment and sentence in Cause No. 10085 (our Cause No. 57,414) had ceased to operate. Thus, the appellant’s punishment, upon revocation of his probation, was in fact increased to eight years. As such, the trial judge’s action in entering a cumulation order violated Article 42.12, Section 8(a), Vernon’s Ann.C.C.P.

Second, we believe that a probationer should be entitled to know the extent of his punishment at the time he is placed on probation. Cf. Article 37.06, Vernon’s Ann. C.C.P. Unless a cumulation order is pronounced at the time probation is granted and included in the judgment granting probation, a probationer could have no notice that his punishment will be cumulated if and when his probation is revoked, and thus he could not be aware of the full extent of the punishment assessed him. Knowledge that his punishment will be cumulated upon revocation may constitute, at least for some probationers, an additional positive incentive to live within the conditions of probation. Moreover, we hold that it is undesirable, as a matter of policy, to “surprise” a probationer upon revocation with the knowledge that his punishment was being increased above that which was assessed by the jury or trial judge months or even years earlier.

These additional factors persuade us that the general rule of Ex Parte Caldwell—that a cumulation order is effective regardless of whether it is contained in the judgment or sentence — is inapplicable where a trial judge grants felony probation. We hold that the proper time for a trial judge to order cumulation in a case where he grants felony probation is when probation is granted and that unless the cumulation order is reflected in at least the judgment granting probation, the cumulation order is ineffective.

In the present case, the cumulation order is contained only in the sentence in Cause No. 10238W (our Cause No. 57,415). Therefore, the cumulation recitals in the sentence in Cause No. 10238W (our Cause No. 57,415) are ineffective and are therefore ordered deleted therefrom.

Finally, we have reviewed the appellant’s pro se allegations and we find them to be without merit.

The sentence in Cause No. 10238W (our Cause No. 57,415) is reformed and the judgment therein is affirmed. The judgment in Cause No. 10085 (our Cause No. 57,414) is affirmed.

VOLLERS, Judge,

concurring and dissenting.

The majority in this case confuses the distinction between “punishment” and “sentence” under Texas law. The “punishment” assessed by the trial court in this case was confinement for a term of four years in each case, to be served upon probation. The “sentence” was the court’s order determining when this punishment was to be served. The sentence pronounced in this case which required that one term be served after the other is completed does not increase the probationer’s punishment upon revocation of his punishment any more than it increases his punishment to sentence him to the penitentiary after he had been placed upon probation.

I certainly cannot agree to that Article 42.12 Section 8(a) V.A.C.C.P. is violated by the trial judge when a cumulation order is entered after he revokes probation and sentences the appellant. That section merely grants to the trial judge the authority to reduce the term in the penitentiary upon revocation of probation, and has nothing to do with the pronouncement of sentence. This case is properly controlled by Spencer v. State, 503 S.W.2d 557 (Tex.Cr.App.1974) where this Court held that where the sentence is imposed for the first time following revocation of probation the court was free to cumulate the sentence with prior outstanding sentences. The cumulation order in this cause is valid and the sentence in Cause number 10238W (our cause number 57,415) should not be reformed. I concur in the affirmance of both of these cases, but dissent to the action of the majority in reforming the sentence in Cause number 54,415.

Before the Court en banc.

OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

After the Court, under its rules, ordered a rehearing, the State filed a motion for rehearing. The rehearing is granted, and that part of the original opinion declaring the cumulation order invalid and reforming the sentence is set aside and the judgments including the cumulation orders are now affirmed.

The issue is: Does a trial judge have power to cumulate sentences after revoking probation in a felony case?

The question was answered in Spencer v. State, 503 S.W.2d 557 (Tex.Cr.App.1974), where this Court wrote: “Since as in the instant case the sentence was imposed for the first time following appellant’s revocation, the court was free to cumulate the sentence with prior outstanding sentences.” In the present ease the sentence was imposed after the revocation of probation.

It makes no difference that Article 42.12, V.A.C.C.P., does not provide for the cumulation of sentences because Article 42.-08, V.A.C.C.P., provides for their cumulation.

The cumulation of sentences has been approved by this Court for eighty-two years. See Ex parte Crawford, 36 Tex.Cr.R. 180, 36 S.W. 92 (1896); Ex parte March, 423 S.W.2d 916 (Tex.Cr.App.1968); and Ex parte Davis, 542 S.W.2d 117 (Tex.Cr.App.1976). The opinion on original submission does not give sufficient reasons to change the rule and nullify Article 42.12, supra.

For the above reasons, both sentences as originally pronounced are affirmed.

ROBERTS and PHILLIPS, JJ., dissent.

CLINTON, J., not participating.

      . Article 42.08, Vernon’s Ann.C.C.P.

      . In Spencer v. State, 503 S.W.2d 557 (Tex.Cr.App.1974), the defendant was convicted of burglary with intent to commit theft. The trial judge suspended the imposition of sentence and placed the defendant on probation. During the defendant’s probationary term, the appellant was convicted of the offense of possession of marihuana. The State filed a motion to revoke and the trial judge revoked the defendant’s probation on the basis of the marihuana conviction. However, the trial judge ordered the sentence for burglary to run cumulatively with appellant’s sentence for possession of marihuana.
      This Court, speaking through Presiding Judge Onion, stated:
      “Since as in the instant case the sentence was imposed for the first time following appellant’s revocation, the court was free to cumulate the sentence with prior outstanding sentences. See Article 42.08, Vernon’s Ann. C.C.P.; Ex parte March, 423 S.W.2d 916 (Tex.Cr.App.1968). Therefore, Appellant’s last contention is without merit.” Spencer v. State, supra at 562.
      In Ex Parte March, 423 S.W.2d 916 (Tex.Cr.App.1968), this Court held that where the imposition of sentence is suspended and the sentence imposed for the first time upon revocation of probation, the trial judge is free to cumulate the sentence with prior outstanding sentences.
      However, neither Spencer nor Ex Parte March expressly considered whether the judgment suspending the imposition of sentence and placing the defendant on probation (and the order placing the defendant on probation) had to reflect the cumulation order. That is, neither case directly addressed when a trial judge has to order the cumulation of punishment where he has suspended the imposition of sentence and place the defendant on felony probation. Moreover, the Court did not consider the effect of Article 42.12, Section 8(a), Vernon’s Ann.C.C.P., in either case. In light of our disposition of the present case, our holdings in Spencer and Ex Parte March are overruled to the extent that they are in conflict with the present decision.

      . In Ex Parte Davis, 542 S.W.2d 117 (Tex.Cr.App.1976), we held that where a cumulation order is found only in an order granting probation and not also in the judgment granting probation, the cumulation order was not effective.

      . We realize, of course, that there are situations where a cumulation order could be entered when probation was revoked which would not involve an increase in punishment. For example, in the present case, if the trial judge had reduced the appellant’s punishment in each case to two years and then entered an order that the punishment in Cause No. 10238W (our Cause No. 57,415) would not begin until the judgment and sentence in Cause No. 10085 (our Cause No. 57,414) had ceased to operate, no increase in the punishment in Cause No. 10238W (our Cause No. 57,415) would have resulted.
      In situations where a cumulation order does not increase the factual term of incarceration, the above argument is not applicable.
      Of course, where a trial judge’s cumulation order does increase punishment after revocation, an additional issue is presented: whether an increase in punishment after revocation of punishment violates due process under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Cf. Bouie v. State, 565 S.W.2d 543 (Tex.Cr.App.1978); Lechuga v. State, 532 S.W.2d 581 (Tex.Cr.App.1975).

      . Cf. McNew v. State (Tex.Cr.App.1978); No. 56,669 (delivered February 15, 1978). Walker v. State, 557 S.W.2d 785 (Tex.Cr.App.1977).

      . Under our decision in Ex Parte Reynolds, supra, the sentences will run concurrently.


source: Caselaw Access Project

author: PHILLIPS, Judge.

license: Public Domain

text:
    Ronald Alan RAMEY, Appellant, v. The STATE of Texas, Appellee.
    No. 55682.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 6, 1978.
    Rehearing En Banc Denied Jan. 31, 1979.
    Donald W. Rogers, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Jack C. Freís, Asst. Dist. Attys., Houston, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of aggravated robbery. The trial was conducted before a jury which found the appellant guilty of the offense charged and thereafter assessed the appellant’s punishment at 50 years’ confinement in the Texas Department of Corrections.

Since the appellant does not challenge the sufficiency of the evidence, only a brief recitation of the facts is warranted. On New Years Day of 1975, Mrs. Bernice Taul was present in her home along with her granddaughter, Tracy Taul, Mary Bohn, a friend, and Marilyn Compton. The record reveals that as Mrs. Taul was preparing dinner three robbers forcibly entered her home with guns and demanded that the ladies give the robbers their jewelry. The robbery victims were then herded into a closet where they were ordered to remain silent. The appellant was identified as one of the robbers in court as well as in a lineup.

Appellant’s first ground of error alleges that the trial court erred at the punishment stage of the trial by allowing State’s Exhibit No. 5, the entire file of the Harris County Adult Probation Department, into evidence over appellant’s objection inasmuch as said file contained the details of appellant’s pri- or conviction for possession of marihuana in the State of Florida as well as evidence of appellant’s arrest record and other extraneous offenses. We agree.

At the punishment hearing the State sought to prove that the appellant was on five years’ probation in the State of Florida for the felony possession of marihuana through the testimony of Robert Thomas Henry, the Interstate Compact Probation Officer of Harris County, Texas. At that time the State offered State’s Exhibit 5, the entire file of the Harris County Probation Department, into evidence. A hearing was then held outside the jury’s presence wherein appellant objected to the file and moved to suppress it on the grounds of hearsay and the fact that appellant’s arrest record appeared therein. The pertinent parts of the Probation Department’s file with information regarding appellant that were introduced into evidence are as follows:

(1) A letter dated March 12, 1975, from M. Ron Spenny, a probation officer in Florida, to Michael Roberts, another Florida probation officer, advising that the appellant was placed on probation January 10, 1975, for possession of 75 pounds of marihuana.
(2) A presentence investigation by the Florida Parole and Probation Commission outlining the facts that Officers Kelly and Crowley searched the appellant’s bedroom and found 75 pounds of marihuana. The report also mentioned the following charges attributed to appellant: 1970 possession of firearms; 1970 felony theft; 1972 possession of heroin; and 1974 misdemeanor theft.
(3) A letter from Bob Henry, probation officer in Houston, to Ron Spenny, dated September 30, 1975, outlining the fact that the appellant was presently charged with capital murder, three counts of armed robbery, and misdemeanor disorderly conduct. Also, the letter mentioned that the district attorney was going to proceed to trial in each case rather than work a deal because in his opinion the appellant “is just plain sorry.”
(4) A Case Review Sheet of the Texas Board of Pardons and Paroles reflecting one juvenile arrest and seven adult arrests, including a juvenile arrest for wrecking his father’s car and adult arrests for: pistol, possession of stolen motorcycle-— dismissed; possession of heroin— dismissed; felony malicious mischief —dismissed; burglary and theft— dismissed; attempted murder — dismissed; armed robbery; capital murder — pending; armed robbery (3 counts) — pending; disorderly conduct — pending.

After a hearing outside the presence of the jury, the court overruled all the appellant’s objections to State’s Exhibit No. 5 and allowed it to be introduced in its entirety before the jury. That this was harmful to the appellant is evidenced by the fact that the jury gave appellant a 50-year sentence.

Article 37.07, Y.A.C.C.P., as amended in 1967, reads, in part, as follows:

“Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty.
(a) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.”

Article 37.07, supra, limits the “prior criminal record” to final convictions or probated sentences. The statute does not permit the State to show the details of the offenses resulting in such convictions, or extraneous offenses, not resulting in final convictions. The admission of the entire probation report in question violated the Legislature’s mandate in two respects. First, it included details of the possession of marihuana conviction in Florida. Second, it lists in several different places eight extraneous offenses alleged to have been committed by the appellant, none of which resulted in a final conviction and three of which, capital murder, armed robbery, and disorderly conduct, were pending at the time of trial. The introduction of such evidence was prejudicial to the appellant and calls for reversal. Sherman v. State, Tex.Cr.App., 537 S.W.2d 262; Lege v. State, Tex.Cr.App., 501 S.W.2d 880; Mullins v. State, Tex.Cr.App., 492 S.W.2d 277. In light of our disposition of this case, a review of appellant’s other grounds of error is not warranted.

The judgment is reversed and the cause remanded.

DALLY, J., concurs in the result.


text:
    Robert Michael GAFFNEY, Appellant, v. The STATE of Texas, Appellee.
    No. 55109.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 13, 1978.
    Rehearing En Banc Denied Jan. 31, 1979.

      James M. Murphy, Dallas, for appellant.
    Arthur C. Eads, Dist. Atty., and James T. Russell, Asst. Dist. Atty., Belton, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for possession of more than four ounces of marihuana. Punishment was assessed at 15 years’ imprisonment.

For some time prior to April 28, 1976, Officer Severn of the D.P.S. Intelligence Service was in contact with a confidential informant concerning other controlled substance transactions. In the course of these discussions, the instant transaction was revealed in general terms. Then, on April 28, 1976, between 9 and 10 a. m., the confidential informant advised Officer Severn that a load of marihuana was to be flown into the Terrell, Kaufman County, airport that night, around midnight, from Mexico. The make and identification number of the plane were provided, as was the pilot’s name. Officer Severn related this information to D.P.S. Narcotics Officer Spencer. At approximately 9:30 p. m., Officers Severn and Spencer arrived at the Terrell airport to maintain surveillance and seize the smuggled contraband when it arrived. At approximately 11:30 p. m., Officer Severn contacted his informant, who had previously provided reliable information, and was advised that due to inclement weather the airplane was diverted to the Temple, Bell County airport. The informant described the vehicles, their license numbers, and their drivers’ names which were en route to rendezvous with the plane by way of Interstate 35. Officer Severn set out towards Temple while Officer Spencer related all the information to the Waco regional office of the D.P.S.

D.P.S. Narcotic Agent Aycock received Officer Spencer’s phone call around 12:05 a. m. on April 29. He was advised of the recent developments, vehicle descriptions, license or identification numbers, route to be taken (I.H. 35), names of vehicle operators, as well as the offense involved. At 12:15 a. m. Agent Aycock advised Agent Mayben of the Temple office of this same information. Mayben in turn requested assistance of the Temple City Police Department. At 12:35 a. m. Agent Aycock proceeded to the Hewitt Exit South on I.H. 35 to look for the motor vehicles which were observed at 1:15 a. m. travelling at about 80 to 85 miles per hour. Surveillance of these vehicles was maintained from this point, through the transfer of packages from the described plane, until they were stopped and searched at 2 a. m. Appellant was driving the vehicle in which the marihuana was discovered. All vehicles were confiscated by the officers and a subsequent search of the airplane revealed marihuana seeds and “sweepings.”

Only Agent Mayben testified at the motion to suppress hearing concerning the viability of obtaining a search warrant. After receiving the information detailed above and contacting two Temple police officers for assistance, he met the officers near the airport and confirmed the presence of the described airplane. About one hour after Aycock called Mayben from Waco, Aycock made his observation of the two described vehicles heading south on I.H. 35 and notified the other officers by radio. The officer testified that the nearest justice of the peace was in Rogers, Texas, fifteen miles from Temple, to the other side of the city from the airport. The quickest he had ever obtained a search warrant, from preparation of the affidavit to its issuance, was between one and one and a half hours. He further testified that he had no personal knowledge of who was to make the pickup, what type of vehicle would make it, that he had no time to secure a search warrant after observing the airplane and that Officer Aycock was the agent in charge. He further testified that he did not know how the information concerning the airplane and marihuana transaction originated.

After the vehicles rendezvoused, the transfer of packages observed, and the vehicles attempted to leave the airport, they were stopped by the officers involved. The parties were arrested and the vehicles searched.

Appellant’s first two grounds of error challenge the legality of the search and seizure resulting in the recovery of the marihuana used to convict him. The basic thrust of appellant’s contention is that because of the lapse of time between the detailed tip from the reliable and confidential informant and the final search and seizure of appellant’s vehicle, there was no excuse for the D.P.S. officers’ failure to obtain a search warrant. Appellant focuses on the Waco and Temple peace officers and their failure to obtain a search warrant, but implies that the failure of the Dallas D.P.S. officers to obtain a search warrant taints this Bell County search.

The State counters that, with respect to appellant’s vehicle, the Carroll [v. U. S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1924)] doctrine legitimatizes the warrantless search. The vehicle’s description was not known until 11:30 p. m. It was not known by Officer Aycock until 12:05 a. m. The presence of the vehicles in the area and, thus, confirmation of the 11:30 p. m. information, was not known until 1:15 a. m. The rendezvous of plane and motor vehicles occurred at 1:35 a. m. The arrest and search were conducted at 2 a. m. The testimony of Officer Mayben makes clear that it was impractical to obtain a search warrant after the informant’s 11:30 p. m. information was confirmed by independent police observations but before the appellant began to leave the Temple airport in his vehicle. In addition, Officer Mayben was not possessed of the necessary information to satisfy the mandate of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), in that he was unaware of how the information was obtained. The record indicates that Officer Aycock received the information concerning the transaction, but not how Officer Spencer had obtained the information. Whether Officers Severn and Spencer should have obtained the search warrant for the Terrell airport operation is not before us. We are concerned only with the search of appellant’s vehicle at the Temple airport.

The case of U. S. v. Mitchell, 538 F.2d 1230 (5th Cir. 1976), is peculiarly apposite. In that case the DEA agents had advanced and detailed information concerning another marihuana smuggling scheme, including date, time, and precise destination. The destination was elaborately staked out and, upon beginning to depart, the appellant was arrested and the vehicle searched without benefit of a search warrant. The original panel decision reversed the conviction on reasoning similar to that advanced by appellant. See U. S. v. Mitchell, 525 F.2d 1275 (5th Cir. 1976). However, on rehearing En Banc the panel decision was vacated and the conviction affirmed. In reaching its decision the En Banc Court quoted the following from Cardwell v. Lewis, 417 U.S. 583, 595-596, 94 S.Ct. 2464, 2472, 41 L.Ed.2d 325 (1974) (plurality opinion):

“Respondent contends that here, unlike Chambers [v. Moraney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970)], probable cause to search the car existed for some time prior to arrest and that, therefore, there were no exigent circumstances. Assuming that probable cause previously existed, we know of no case or principle that suggests that the right to search on probable cause and the reasonableness of seizing a car under exigent circumstances are foreclosed if a warrant was not obtained at the first practical moment. Exigent circumstances with regard to vehicles are not limited to situations where probable cause is unforeseeable and arises only at the time of the arrest. Cf. Chambers, Id., 399 U.S. at 50-51 [90 S.Ct. 1975, at 1980-1981]. The exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation’s necessitating prompt police action.”

In Mitchell, the arrest occurred before the truck began moving. Here, the arrest was made after the truck was departing the airport. Assuming that there was sufficient time for Officers Aycock or Mayben to obtain a search warrant, the exigency of appellant’s imminent departure was nevertheless real.

The dissent in the latter Mitchell case wrote:

“At the time of the seizure nothing had occurred or did occur that was unanticipated or unexpected.” 538 F.2d at 1234.

The instant case would seem to satisfy even the dissenters’ qualification in Mitchell since inclement weather forced an unexpected change in the time and location of the marihuana delivery.

We hold, therefore, that, with respect to those officers who arrested appellant and searched his vehicle, probable cause existed when the information received by them was confirmed in every detail but one: that marihuana was the cargo being transferred. Draper v. U. S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); U. S. v. Guajardo, 508 F.2d 1093 (5th Cir. 1975); Ochs v. State, Tex.Cr.App., 543 S.W.2d 355. Further, the impraeticality of obtaining a search warrant at that time was sufficiently established as was the exigency of the situation confronting the officers at 2 a. m. Powell v. State, Tex.Cr.App., 502 S.W.2d 705; Rivas v. State, Tex.Cr.App., 506 S.W.2d 233. The trial court did not err in overruling appellant’s motion to suppress or admitting the marihuana seized in the course of the search. Appellant’s first two grounds of error are overruled.

Appellant next complains of the trial court’s failure to grant his motion to dismiss the enhancement allegation from the indictment. He argues that the granting of a pardon by the Governor should prevent the use of the pardoned conviction under V.T.C.A., Penal Code, Section 12.42. This contention is without merit without more. See Ex parte Smith, Tex.Cr.App., 548 S.W.2d 410; Runo v. State, Tex.Cr.App., 556 S.W.2d 808. However, appellant also complains of the trial court’s quashing of his subpoena duces tecum for Mr. Jay Floyd, Administrative Assistant to the Governor, and Mrs. Helen Wittenberg, staff member to the Board of Pardons and Paroles. Appellant’s motions allege that a full and unconditional pardon was issued on April 20, 1976, for the prior conviction alleged for enhancement. Nowhere did appellant allege that the pardons were granted because of a determination of appellant’s innocence by the Governor. The pardon document was introduced into evidence and reflects the granting of a “full pardon and restoration of full civil rights of citizenship ..” During the pretrial hearing on appellant’s motions, his attorney expressly stated he had no objections to the court granting Jay Floyd’s motion to quash his subpoena duces tecum. Appellant now urges that the burden of proof on why the pardon was granted shifted to the State since the witnesses’ joint motion to quash was granted. Rather, appellant waived any such contention when he in effect requested the trial court to grant the witnesses’ motion. There being no showing that the pardon was granted because of a finding that appellant was innocent of a prior offense alleged for enhancement, appellant’s third ground of error is overruled. Since the same argument is advanced in support of appellant’s fourth ground of error, it too is overruled.

Appellant next complains that Sections 4.05(a) and (b)(1) of the Texas Controlled Substances Act (Article 4476-15, V.A.C.S.) are facially unconstitutional in that they deprive appellant of due process of law. Appellant’s complaint centers on what he perceives as the creation of an irrebuttable presumption of intent to deliver when more than four ounces of marihuana are possessed. The short answer to appellant’s contention is that he has no standing to launch the challenge asserted since he was charged and convicted of simple possession of marihuana. Threlkeld v. State, 558 S.W.2d 472. Further, it was not irrational or arbitrary for the Legislature to equate, for penalty purposes, the possession of more than four ounces of marihuana and the delivery of any amount of marihuana (unless it is less than one fourth of an ounce and delivered without remuneration). V.A. C.S., Article 4476-15, Sections 4.05(a), (b)(1), (d), (e), and (f). The equating of penalties does not create an irrebuttable presumption. Because other states choose to attach different penalty schemes to different offenses does not render our penalty scheme unconstitutional. Finally, we hold that the possession of more than four ounces of marihuana does not create an irrebuttable presumption of an intent to deliver. Appellant’s fifth ground of error is overruled.

Appellant next complains of the trial court’s failure to grant his motion to dismiss the indictment because such a prosecution and statutory proscription violates his right of privacy and equal protection of the laws. Although they dealt with the Controlled Substances Act’s predecessor, we believe that Miller v. State, 458 S.W.2d 680, and Broom v. State, 463 S.W.2d 220, render appellant’s position untenable. It is well within the legitimate exercise of this State’s police powers to regulate the use, transportation, and possession of drugs considered in need of such regulation by the Legislature. Appellant’s sixth ground of error is overruled.

Appellant challenges the sufficiency of the evidence to sustain his conviction. The evidence reflects that the motor vehicles described by the confidential informant of prior reliability were observed heading south on I.H. 35 north of Temple. Surveillance was commenced and continued uninterrupted until the stop, arrest, search and seizure of the vehicles and their occupants. Surveillance prior to the rendezvous of appellant’s vehicle and the described airplane revealed its rear area to be empty. The vehicle, with appellant as its sole occupant, was observed meeting the airplane. The transfer of cargo was observed. When appellant’s vehicle was stopped and searched, he again was the sole occupant. Appellant admits the vehicle was his.

Appellant’s contention is addressed to the manner in which the marihuana was packaged (“wrapped in opaque covering and enclosed by a clear plastic covering . . ”) and relies upon Armstrong v. State, Tex.Cr.App., 542 S.W.2d 119, and Powell v. State, Tex.Cr.App., 502 S.W.2d 705. On this same basis, appellant complains, in his eighth and ninth grounds of error, of the trial court’s failure to grant his specially requested charge on circumstantial evidence and to sustain his objection to the court’s charge for omitting such a charge, respectively. He again relies on Armstrong v. State, supra.

Armstrong v. State, supra, involved the prosecution of a pilot for possession of marihuana because of his carrying his commercial passenger’s suitcases to the plane and the presence of marihuana roaches in rear area ashtrays. Since the airplane had been left unlocked at the airport for maintenance and the suitcases bore no outward manifestation of their illicit contents, this Court concluded that the failure to grant the specially requested charge on circumstantial evidence was reversible error. In this case, we have a single individual in control of his private vehicle without any contention that he had a commercial purpose in transporting the airplane’s cargo.

In Powell v. State, supra, we have a similar fact situation except that the appellant was a passenger in the carrying truck. The evidence was considered sufficient because, in addition to the evidentiary factors in common with the instant cause, the appellant had a small quantity of marihuana on his person and appeared to be under the influence of narcotics when stopped. The appellant’s personal possession of the small amount of marihuana was considered sufficient direct evidence to obviate any need for a circumstantial evidence charge.

The rule requiring “additional independent facts and circumstances which indicate the accused’s knowledge of the narcotic . ” developed in cases where the place in which marihuana was found was accessible to others without the appellant’s awareness (Armstrong v. State, supra; Ramos v. State, Tex.Cr.App., 478 S.W.2d 102), the evidence clearly cast doubt on whether the appellant knew contraband was involved (Shortnacy v. State, Tex.Cr.App., 474 S.W.2d 713; Morrison v. State, Tex.Cr.App., 372 S.W.2d 542), or the possession of the contraband was joint, in contrast with exclusive (Higgins v. State, Tex.Cr.App., 515 S.W.2d 268; Payne v. State, Tex.Cr.App., 480 S.W.2d 732; Harvey v. State, Tex.Cr.App., 487 S.W.2d 75).

The evidence in this case is sufficient (1) to sustain the judgment and (2) to obviate the need for an instruction on circumstantial evidence. Appellant’s seventh, eighth, and ninth grounds of error are overruled.

Appellant complains of the trial court’s failure to require the State to disclose the identity of the confidential informant. There was never any showing that the informant was instrumental in effecting appellant’s possession of the marihuana, was a material witness to the offense or appellant’s knowing involvement therein. Barber v. State, Tex.Cr.App., 511 S.W.2d 937. Evidence, not conjecture or speculation, is required to make the requisite showing. Appellant’s tenth ground of error is overruled.

Appellant next complains of the trial court’s failure to submit his specially requested instruction on probable cause for the search and relies on Article 38.23, V.A. C.C.P. Such an instruction is required only when a disputed fact issue arises from the evidence over whether probable cause existed. There is no disputed fact issue in this case. No evidence was introduced to controvert the testimony of the officers involved in the search of appellant’s vehicle. Rose v. State, Tex.Cr.App., 470 S.W.2d 198. Appellant’s eleventh ground of error is overruled. Since appellant relies on the same reasoning for his twelfth ground of error, it too is overruled.

There being no reversible error, the judgment is affirmed.

DALLY, J., concurs in the results.


author: PHILLIPS, Judge. VOLLERS, Judge,

text:
    Ignacio CUEVAS, Appellant, v. The STATE of Texas, Appellee.
    No. 57116.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 20, 1978.
    Rehearing Denied Jan. 24, 1979.
    Will Gray, Houston, court appointed, for appellant.
    Jerry A. Sandel, Dist. Atty., Huntsville, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of capital murder. V.T.C.A., Penal Code, Sec. 19.03(a)(4). Punishment was assessed at death pursuant to Art. 37.-071, V.A.C.C.P. Venue was changed from Walker County to Harris County.

On July 24, 1974, three inmates of the Texas Department of Corrections, Fred Carrasco, Rudolpho Dominguez, and the appellant, seized the top floor of the educational building inside the Walls Unit at Huntsville. They held a number of people as hostages while Carrasco negotiated with TDC officials. After long negotiations the inmates attempted their escape on August 3, with the hostages and a movable shield constructed from law books, chalkboards and tape. When law enforcement officers sought to prevent the escape, gunfire erupted. In the end, Carrasco, Dominguez and two of the hostages had been killed. The appellant was charged with the murder of one of the hostages.

In his sixth ground of error appellant contends that the trial court erred in overruling his challenge for cause to venireman James Whorton. Appellant argues that Whorton clearly reveals during voir dire that he would vote to impose the death penalty in all cases where the accused was found guilty of capital murder, unless the accused proved he was insane at the time of the offense.

The record reflects that the appellant was forcéd to use his last peremptory challenge on venireman Whorton. Appellant then filed a written motion requesting an additional peremptory challenge, which motion was denied. Venireman John Thomas, the eventual foreman, was the last juror seated. At the time Thomas was selected, appellant notified the court that had he been granted an additional peremptory challenge he would have struck Thomas as being an unacceptable juror. These facts place appellant squarely within the rule laid down by this Court in Wolfe v. State, 147 Tex.Cr.R. 62, 74, 178 S.W.2d 274, 281:

“. . .in the trial of a criminal case where an accused has been wrongfully deprived of a peremptory challenge by being forced to use such upon a juror who was shown to be subject to a challenge for cause, and such accused has exhausted his peremptory challenges, and a further juror be presented whom he states to be objectionable to him, then it will not be necessary for accused to show in what manner such further juror was objectionable to him, nor to show that such juror was an unfair or partial juror. In further words, we think the accused should only be required to exercise a peremptory challenge- on the objectionable juror and not a challenge for cause, nor show grounds for a challenge for cause, nor to show why such juror was objectionable to him.”

Thus, if appellant can show that the challenge for cause to venireman Whorton should have been sustained and that the overruling of such challenge deprived him of a peremptory challenge he would have used to strike venireman Thomas, this case must be reversed. Salazar v. State, 149 Tex.Cr.App. 260, 193 S.W.2d 211; Bayless v. State, 166 Tex.Cr.R. 479, 316 S.W.2d 743; Sifford v. State, Tex.Cr.App., 505 S.W.2d 866.

Appellant is relying primarily upon Art. 35.16(c)(2), V.A.C.C.P. He primarily contends that both parties, the appellant and the State, have a right to have jurors who believe in the full range of punishment. Woodkins v. State, Tex.Cr.App., 542 S.W.2d 855. Appellant argues that Whorton’s inability to impose life imprisonment, unless it was shown appellant was insane, demonstrated that Whorton could not consider the full range of punishment.

The relevant portion of venireman Whor-ton’s testimony is as follows:

“Q [BY MR. GRAY]: Well, in every case where you sit as a juror, let’s say that you found the defendant guilty of the offense of capital murder, you found that he had intentionally and deliberately killed another person, do you feel that every person that you found guilty of that offense—
A If he’s not insane, yes, sir.
Q Unless he proved that he was insane, you would assess the death penalty?
A Yes, sir.
Q And you would not even consider life imprisonment then, under those circumstances, after you had found him guilty of the offense of capital murder?
A I don’t think so.
* * * * * *
Q And you have answered yes to each of the punishment questions, then if you had found him guilty beyond a reasonable doubt of the intentional killing of another person, capital murder.
A Yes, sir, I believe I would.
Q And under no circumstances, then, would you answer no to the question?
A I wouldn’t say under no circumstances, I can’t think of none off hand.
Q You can’t visualize anything that would permit you to answer no to those questions unless the defendant was insane?
A I can’t think of anything, no.
* * * * * *
Q Let me make sure that I understand you, Mr. Whorton, and you are the only one that can tell us this. Mr. Sandel can’t answer this for you or the Judge or anybody else. You feel that in every case where you find a defendant guilty of the offense of capital murder, the proper punishment is death in the electric chair unless he’s insane?
A I would say yes.
Q And let’s take a hypothetical case, now, where you found a defendant guilty of the offense of capital murder. Let’s say that both sides put on evidence at the punishment hearing and there’s no evidence that would indicate to you that the defendant is insane, then your answer to the two punishment questions, I take it, would be yes?
A The evidence showed he’s guilty and not insane, is that what you are saying?
Q Yes, sir.
A I would say yes.
Q And you can’t visualize any mitigating circumstances other than insanity?
A None comes to mind, no, sir.
* * * * * *
Q [BY THE COURT]: Mr. Whorton, what is it you’d require the defendant to prove? His insanity? Is that what you said?
A If he was found guilty of a capital crime, and other than insanity, I can’t think of anything that would.
******
Q In that case, you wouldn’t be requiring the defendant to do anything, so your answers to the two lawyers involved here are opposed. Have we thoroughly confused you?
A Well, you have, other than the fact if the evidence presented by the State were to prove this man incompetent or whatever, then I wouldn’t recommend it.” (Emphasis added.)

At the end of the examination the trial court sought to rehabilitate the prospective juror. At that time Whorton did state that he could base his answers on the evidence. The statements were inapposite, however, to his previous statements which showed an unwillingness to consider life imprisonment unless the defense of insanity was proven.

The same issue presented by appellant was raised in the recent case of Smith v. State, 573 S.W.2d 763 (No. 56,072, delivered December 7, 1977). In that case, we held:

“The overall picture, presen ted by the voir dire examination of Payne is one of a person holding strong convictions that death is the only punishment he could consider for a person guilty of capital murder, and that life imprisonment is not adequate punishment and would not be considered.
******
It is too mechanistic to reason that Payne was a qualified juror because he was willing to require of the State to prove beyond a reasonable doubt the special issues submitted at the punishment stage. The law requires this and in addition requires that each juror consider the full range of punishment applicable to the offense in question.”

Similarly, in the instant case, Whorton indicated that life imprisonment would not be a viable punishment alternative in the absence of evidence showing insanity. The statement by Whorton that he would base his answers to the punishment questions on the evidence does not indicate that he could consider the full range of punishment. It is conceivable that Whorton could base his answers on the evidence and yet, he could not consider the minimum punishment of life imprisonment unless that evidence proved appellant insane. Such responses clearly demonstrate Whorton’s inability to consider the full range of punishment. We hold that appellant’s challenge for cause was improperly overruled. Smith v. State, supra; Wolfe v. State, supra.

In light of our disposition of appellant’s sixth ground of error, we need not address the balance of appellant’s contentions.

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

VOLLERS, Judge,

dissenting.

The majority reverses this cause because it finds that the trial court erred in overruling appellant’s challenge for cause to venireman James Whorton. It is the majority’s conclusion that voir dire examination of juror Whorton revealed that he would vote to impose the death penalty in all cases where the accused was found guilty of capital murder, unless the accused proved he was insane at the time of the offense. I cannot agree with this conclusion. The record in this cause simply presents another instance where questioning on voir dire managed to confuse a layman and led him into making apparently contradictory answers to questions which are now used as a basis for reversal of this case.

An examination of the entire voir dire in this case reveals that the juror Whorton apparently believed that the definition of capital murder included answering the questions at the punishment phase of the trial “yes.” This is apparent even from the limited amount of voir dire testimony set out in the majority opinion, where it reflects that:

“Q. And you have answered yes to each of the punishment questions, then if you have found him guilty beyond a reasonable doubt of the intentional killing of another person, capital murder?
A. Yes, sir, I believe I would.
Q. And under no circumstances, then, would you answer no to the question?
A. I wouldn’t say under no circumstances, I can’t think of none offhand.
Q. You can’t visualize anything that would permit you to answer no to those questions unless the defendant was insane?
A. I can’t think of anything, no.” (Emphasis added.)

There can be no question but that the questions to the prospective juror in this case were misleading and his answers were apparently contradictory.

Upon reexamination of this juror by the State, the juror indicated that he would require the State to prove beyond a reasonable doubt that the questions at the penalty stage of the trial should be answered “yes” before he would so answer them. The trial judge recognized the confusion by the juror and entered into the examination. The following examination by the trial judge illustrates his concern over the confusion evidenced by the juror:

“QUESTIONS BY THE COURT:
Q. Mr. Whorton, what is it you’d require the defendant to prove? His insanity? Is that what you said?
A. If he was found guilty of a capital crime, and other than insanity, I can’t think of anything that would.
Q. Is that what you meant when you answered Mr. Gray’s question, you just couldn’t conceive of a case where you couldn’t answer either of those questions Mr. Sandel directed to you no?
A. Yes, sir.
Q. You understand the State has a burden to prove — it is their burden to prove beyond a reasonable doubt that you should answer these two questions yes.
A. Right. I understand that.
Q. If they don’t do that—
A. You answer them no.
Q. You have to answer them no under your oath as a juror.
A. Right.
Q. In that case, you wouldn’t be requiring the defendant to do anything, so your answers to the two lawyers involved here are opposed. Have we thoroughly confused you?
A. Well, you have, other than the fact if the evidence presented by the State were to prove this man incompetent or whatever, then I wouldn’t recommend it.
Q. I’d like to clear up one point. If the evidence shows he’s incompetent or sanity is a defense in the trial, that’s an entirely different concept. Now, setting that aside for the moment, unless it’s involving your concern with regard to answering these questions here, well, then, it’s not relevant to this inquiry that Mr. Gray has directed to you and, that is, it is your attitude with regard to assessing the death penalty which can only be done if you answer those two punishment questions yes.
A. Right. And I would have to be convinced beyond a shadow of a doubt.
Q. Beyond a reasonable doubt before you would answer them yes?
A. Right.
Q. If you answer either of them no, then the Court is obligated to assess life in the penitentiary.
A. Right. Okay.
Q. Now, you are not either called upon to conceive in your own mind any set of facts to what you’d do under any circumstances in a criminal case, but if you have some propensity to assess one punishment, you know the affect of the answers on the punishment questions, would you answer them based on the evidence, or would you answer them based upon your attitude concerning the death penalty or some other?
A. Based on the evidence.
Q. As to what punishment should be—
A. I’d base it on the evidence.
Q. So your answer to Mr. Gray would be different ?
A. Yes.
THE COURT: All right. Overrule the juror’s challenge.” (Emphasis added.)

From this it is apparent that the prospective juror was confused and gave conflicting answers. The trial court resolved this conflict by his questioning. We must keep in mind that the trial judge is the person who is listening to the prospective juror and we are only looking at a cold record. I still firmly believe that trial judges are vested with some authority to resolve such conflicting answers by prospective jurors, and this record certainly shows no abuse of discretion by the trial judge (see Smith v. State, 573 S.W.2d 763 (No. 57,072, delivered December 7, 1977, dissenting opinion). No abuse of discretion is reflected by this record and this cause should not be reversed.

I dissent.

ONION, P. J., and DOUGLAS and W. C. DAVIS, JJ., concur.

      . Art. 35.16(c)(2) provides:
      “(c) A challenge for cause may be made by the defense for any of the following reasons:
      ******
      (2) That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.” (Emphasis added.)


author: DOUGLAS, Judge.

text:
    John ALONZO, Appellant, v. The STATE of Texas, Appellee.
    No. 55941.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 10, 1979.

      Daniel F. Solis, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Jerome L. Croston, Jr., and Reed Prospere, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

John Alonzo appeals his conviction for indecency with a child. Punishment was assessed by the court at five years.

Alonzo contends that the court erred in failing to instruct the jury on the law regarding accomplice witnesses and in failing to submit to the jury the issue of whether complainant was an accomplice witness. The sufficiency of the evidence is not challenged.

Alonzo had befriended numerous children in a west Dallas neighborhood and became well-known because of his generosity with them. On February 4, 1976, he picked up the complainant, a ten-year-old, and two of her playmates, one boy and one girl. He drove them a short distance to a levee and then asked the boy to go to the store for him. After the boy left, appellant told both girls to pull their clothes down. He then instructed them to get into the cab of his truck where he laid down on top of each of them. He rubbed his penis against the sexual organ of each girl but did not penetrate either. Complainant asked appellant to stop, which he did. Her male friend returned from the store in time to see her pulling up her pants. Several days later the complaining witness told her mother about the incident. On February 9 she talked to police officers about it.

Appellant’s argument concerning accomplice witnesses assumes that Article 38.14, V.A.C.C.P., applies to this case. Article 38.-14 provides that a conviction cannot be based on an accomplice witness’ testimony unless there is additional evidence to connect the defendant with the crime. Article 38.07, V.A.C.C.P., which became effective on September 1, 1975, creates an exception to this rule and provides that a conviction can be had on the uncorroborated testimony of the victim of any sexual offense defined in Chapter 21 of the Penal Code (which includes indecency with a child). The only qualification on this rule is that the victim must inform some person other than the defendant of the offense within six months of its occurrence.

In the instant case appellant was charged with indecency with a child, an offense defined in Chapter 21 of the Penal Code. The victim of the crime told her mother about it three or four days later and told police officers about it a day later. Under these facts, Article 38.07 applies. Appellant was not entitled to an instruction concerning accomplice witnesses.

There is no error. The judgment is affirmed.


text:
    Kenneth SCHERSHEL, Appellant, v. The STATE of Texas, Appellee.
    No. 56892.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Jan. 10, 1979.

      H. Davidson Smith, III, and James F. Scherr, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., and Douglas Gelo, Asst. Dist. Atty., El Paso, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction by a jury of the offense of unauthorized use of a motor vehicle. Punishment was assessed by the court and appellant was sentenced to four years in the Texas Department of Corrections.

In his sole ground of error appellant challenges the sufficiency of the circumstantial evidence.

The testimony of Leon Gebhaver shows that on May 26, 1976, appellant went to Sports City Incorporated and was looking at motorcycles for sale. Gebhaver, who was a salesman there, assisted the appellant. Gebhaver testified that appellant wanted to “test drive” a certain motorcycle, a 250 green Kawasaki, 1974 model. Gebhaver told appellant that he could, but that he couldn’t leave the test drive area because Sports City’s liability insurance wouldn’t cover accidents off the premises. Gebhaver then watched appellant ride the bike for a short while and then went back inside where things were so busy he completely forgot about the appellant. During the time he watched, appellant was riding the motorcycle in the test drive area on the premises. The test drive area is located behind the store, adjacent to and in view of the motorcycle service department. The record indicates that there was an employee in the service area at the time appellant allegedly took the motorcycle, but he or she was not called to testify regarding seeing the appellant drive the motorcycle off the prescribed premises.

Four or five hours later, Gebhaver received an anonymous phone call that one of their motorcycles was missing. He checked and the same motorcycle that appellant had been riding was gone. The record shows that the motorcycle was found in an apartment leased by a third party a mile and a half from appellant’s residence. The State introduced no evidence to connect the appellant with the apartment where the motorcycle was found. The record also shows that the appellant was found in July 1976, approximately a month and a half after the alleged incident, in Billings, Montana.

We agree with the appellant that the circumstantial evidence was insufficient to sustain the conviction.

Mere presence in the vicinity of a crime, even when coupled with flight, as is the case here, is not alone sufficient to sustain a conviction. Moore v. State, Tex.Cr.App., 532 S.W.2d 333; Ysasaga v. State, Tex.Cr.App., 444 S.W.2d 305. Although the appellant’s test riding of the bike sometime before it was found missing shows something more than “presence in the vicinity of a crime,” we find this case closely analogous to that of Knighten v. State, Tex.Cr.App., 568 S.W.2d 135. Knighten overruled a judgment of probation revocation for the unauthorized use of a motor vehicle. This Court held that the circumstantial evidence was insufficient even on the preponderance of the evidence scale used for probation revocation proceedings. In Knighten the appellant entered into a rental agreement in Lubbock with Dollar Rent-a-Car Systems for the rental of an automobile which provided that when he took the car shortly after two in the afternoon it was to be returned by 6 p.m. the same evening. The car was not returned and was found two weeks later in Dallas. The only distinction in Knighten other than the absence of the element of flight and the instant case is that of the limitation placed on the consent of the use of the vehicles in question. Appellant was limited only to the area of the test drive site with an implied reasonable limitation on the time he could drive the bike, while Knighten was limited only to the time he could use the vehicle with an implied reasonable limitation on the area he could drive it. It is uncontroverted that Knighten had permission to operate the vehicle until 6 p.m. It is also uncontroverted that appellant had permission to test drive the motorbike in the prescribed test area. There was absolutely no evidence in Knighten that he had ever had possession of the vehicle on any later date in Dallas or any place else. There was also a void of testimony that the appellant here ever had possession of the motorbike off the Sports City premises. It is well established that a conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused, and proof amounting only to a strong suspicion or mere probability is insufficient. Stogsdill v. State, Tex.Cr.App., 552 S.W.2d 481; Flores v. State, Tex.Cr.App., 551 S.W.2d 364; Easley v. State, Tex.Cr.App., 529 S.W.2d 522; Indo v. State, Tex.Cr.App., 502 S.W.2d 166. This is especially significant when there was someone in the service area with a view of the test driving area who could have shed light on the missing facts of this case.

Where circumstantial evidence relied on by the prosecution is obviously weak and where the record on appeal affirmatively shows not only that other testimony which would have cast additional light on the facts was available to the prosecution, but also that the prosecution did not introduce such other evidence or satisfactorily account for its failure to do so, the appellate court will treat the case as one showing reasonable doubt of the sufficiency of the evidence to support the conviction. King v. State, Tex.Cr.App., 396 S.W.2d 409; 24 Tex.Jur.2d 427, Evidence, Section 745.

Admittedly, Knighten’s finding on similar facts of insufficiency of the evidence even on a preponderance of the evidence scale did not involve the element of flight as does the case here. However, we find that the similar facts of the instant case with the addition of the element of flight still did not remove the reasonable hypothesis that the bike was returned by appellant and stolen by someone else on a “beyond a reasonable doubt” scale when coupled with the fact that the additional testimony which could have shed light on how and when the bike was stolen was not introduced by the State.

Having found that reversal must result in the instant case, we further conclude that no further prosecution be had in this cause. The double jeopardy clause of the United States Constitution precludes a second trial once the reviewing court has found the evidence legally insufficient. Burks v. State, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1. This ruling is fully applicable to State court proceedings, Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15.

The conviction is set aside and reformed to show acquittal.

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

DALLY, J., concurs in the result.


text:
    James Edwin EARNHART, Appellant, v. The STATE of Texas, Appellee.
    No. 57183.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Jan. 10, 1979.
    Joe M. Joiner, Sherman, for appellant.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for murder. The punishment was assessed at 20 years’ imprisonment.

Appellant was jointly tried with his brother, John Ray Earnhart, for the offense of murder before a jury. In his first ground of error appellant vigorously attacks the sufficiency of the evidence to sustain this verdict. A careful review of the evidence in a light most favorable to the fact finder’s verdict reflects the following.

Deputy Sheriff Curtis testified that on November 30,1974, he received a phone call from the Whitesboro Police Department and after taking certain actions that were subsequently explained by him when recalled, he dispatched officers to the Earn-hart residence. When recalled, Deputy Curtis testified that he called the Earnhart residence phone number as listed in the local directory and a person who identified himself as John Ray Earnhart answered the phone and responded to the deputy’s question by stating that a man had been killed in his home.

Deputy Sheriff Adams testified that he arrived at the Earnharts’ residence at approximately 9:30 p. m. to investigate a shooting complaint and that John Ray Earnhart began “telling us before we could ask him questions” that some man had driven up bleeding, ran into the house, lay down on his bed and died. Deputy Adams testified that he looked into the victim’s pickup truck and did not notice any blood. John Ray Earnhart then invited them into the house. Deputy Adams testified that the Earnhart brothers became suspects when they found no blood in the truck and all the blood in the house. After being placed under arrest, John Ray Earnhart went into his back bedroom to obtain a clean shirt and upon picking one up, he stated he did not want to wear it because there was blood on it. Deputy Adams then seized the shirt and preserved it as evidence. The brothers were then placed into the deputies’ patrol ear and were then warned of their Miranda rights. The deputy testified that they returned the next day to search the house after obtaining a search warrant when an autopsy disclosed that the victim had been shot to death. The appellant was first seen in the southeast bedroom lying on a couch completely covered over. The victim was apparently found also in the bed in the southeast bedroom. John Ray Earnhart apparently had a cut and bloody thumb, but there were no apparent signs of cuts or blood on the appellant. The appellant and his brother both appeared to be drunk. John Earn-hart claimed ownership of the shirt seized and which contained blood.

Deputy Sheriff Teague corroborated in large part the testimony of Deputy Adams. However, he testified that the appellant and his brother became suspects when he was informed that no one else had been in the home. Deputy Teague testified that he did not interrogate the appellant. He did state however that John Ray Earnhart was “drunk crazy, wild,” but that the appellant was cooperative. He testified that during their earlier patrol round he noticed that Mr. Elkins’ pickup truck was at the house around 4 p. m. as were two other pickup trucks which he knew the Earnharts to have driven on occasion. Although John Ray Earnhart said that the victim claimed he was shot while in his pickup, there was no apparent outside damage to the pickup truck. The motors on all the vehicles in front of the house were checked and found to be cold. The deputy further testified that he had information that the victim was at the house on the previous day. John Ray Earnhart claimed he had never seen the victim before, while the appellant said he knew him and gave the officer his name.

Mr. Richards, a mortician who was also the justice of the peace on the date of the offense, testified that he arrived shortly before the police and formed the opinion that the victim had been dead between four and five hours. He could not, however, determine the cause of death.

A Mr. Austin testified that on the night previous to this offense, November 29,1974, he arrived at the Earnharts’ residence at approximately 8:30 p. m. and stayed for about one and a half hours. He testified that John Ray Eamhart began playing with a chain saw in the house and cut his thumb rather badly.

Chief Deputy Sheriff Bowling testified that he went to the Earnharts’ residence on December 1, 1974, at approximately 2 p. m. to execute a search warrant. They found and seized a .22 rifle, three fired lead .22 caliber bullets, and a number of cartridge casings. He further testified that his investigation revealed a large puddle of blood under a chair and a trail of blood splatters from that chair through several rooms to a bathroom and returning from the bathroom to the bedroom and bed where the victim was found. A blood sample was taken from the chair and preserved for evidence. Blood was observed on the .22 caliber rifle seized. The house was unsecured when the police officers arrived to execute the search warrant. He testified further on cross-examination that there appeared to be some effort to wipe some of the blood up.

Texas Ranger Gant testified that he accompanied Chief Deputy Bowling during the search on December 1 and that blood samples were taken from the appellant and his brother.

Allen Jones, a firearms examiner with the Dallas County Criminal Investigation Laboratory, testified that the three .22 caliber lead bullets seized at the Earnharts’ residence could not be matched with the .22 caliber rifle seized because one “lacked sufficient detail or striations to allow conclusive match” and the other two were “too mutilated.” Two .22 caliber cartridge hulls were found to have been fired from the .22 caliber rifle seized “to the exclusion of all other weapons.” The .22 caliber rifle seized was found to be in firing condition. The bullet fragments taken from the victim’s brain were too mutilated for comparison.

Deputy Sheriff Clark who booked the appellant and his brother into jail on the evening of November 30, 1974, testified that the left thumb of John Ray Earnhart was cut and bleeding.

Dr. DeMayo, Associate Medical Examiner for Dallas County, testified that he conducted an autopsy on the victim and found a bullet hole in the right frontal region of the scalp surrounded by a flask-shaped wound with powder particles in the surrounding soft tissue. He testified that the bullet fragmented on impact with the skull bone and travelled back and down in a left to right direction. Two lacerations and two abrasions were found on other parts of the victim’s body, but only the gunshot wound could cause the death in the opinion of the examiner. He testified that the muzzle of the gun was in contact with the skull upon discharge since there was no tattooing from the powder particles. He testified that the wound would not kill instantly but should have paralyzed the victim on the left side. He testified that it was highly improbable that he could move and walk about. Blood samples were also taken from the victim during the autopsy. The examiner further testified that the blood alcohol content of the victim’s blood was .289, and .30 would induce alcoholic unconsciousness. This level of alcohol was testified to be equivalent to drinking 12 to 13 ounces of whiskey in one hour. There was also .39 milligrams of phenobarbital in the victim’s blood.

Sarah Williams, an employee of the Dallas County Criminal Investigation Laboratory who specializes in blood and body fluids, testified that the blood sample taken from the .22 rifle seized at the Earnhart residence reflected a combination of all three blood samples, i. e., the blood samples of the appellant, John Ray Earnhart, and the victim. She testified that the samples of the appellant’s and his brother’s blood were of the same group, Group A, and had the same subsequent differentiations. The blood found on the green shirt seized at the time of John Ray Earnhart’s arrest was compatible with the victim’s blood sample. The sample of blood obtained from the chair under which a large puddle of blood was found was also consistent with the victim’s blood grouping. Blood found on a beer can found at the scene was also consistent with all three blood samples received by the witness, i. e., the appellant, John Ray Earnhart, and the victim. The witness finally testified that the blood of the appellant and his brother, John Ray Earnhart, was “exactly the same” as far as they could be typed by the witness. The blood grouping of the appellant and his brother was different, however, from that of the victim.

The defense presented no evidence.

Reviewing this evidence in a light most favorable to the verdict, we must conclude that it only shows that the appellant was present at the scene of the offense when the police officers arrived. There is no evidence of when the appellant arrived at the residence. None of the vehicles observed in front of the house earlier in the afternoon on the day of the offense were shown to have been owned by the appellant. Further, the officer who observed these vehicles testified that he did not ascertain whether anyone was present at the house at that time. The testimony clearly reflects that it was the appellant’s brother, John Ray Earnhart, who had a bleeding wound. The appellant’s blood type and that of his brother were exactly the same and that blood type was found on the purported murder weapon and the beer can, both of which also had blood similar to that of the victim’s. The evidence before us in no way reflects that the appellant either shot the victim or in any other way solicited, encouraged, directed, aided, or attempted to aid his brother in the commission of the offense with the intent to promote or assist the commission of that offense. See V.T.C.A., Penal Code, Section 7.02(a)(2). Further, there is no evidence of a conspiracy to commit any felony or any evidence to establish the appellant’s complicity in the offense charged.

24 Tex.Jur.2d, Evidence, Section 742 provides in pertinent part:

“In ascertaining whether the guilt of the accused has been established to a moral certainty, the appellate court will review the evidence in light of the presumption that the accused is innocent. The court will not presume any acts against the accused that are not shown to have been- committed by him. Furthermore, a conviction will not be sustained on appeal if the evidence does not sufficiently establish all material elements of the offense charged. [Footnotes omitted.]”

This rule has been alternatively stated as follows:

“A conviction on circumstantial evidence cannot be sustained if the circumstances proven do not exclude every other reasonable hypothesis except that of the guilt of the accused; and proof amounting only to a strong suspicion or mere probability is insufficient.”

Davis v. State, Tex.Cr.App., 516 S.W.2d 157; Suff v. State, Tex.Cr.App., 531 S.W.2d 814; Brock v. State, 162 Tex.Cr.R. 339, 285 S.W.2d 745; Stogsdill v. State, Tex.Cr.App., 552 S.W.2d 481. Every circumstantial evidence case must necessarily be tested by its own facts to determine the sufficiency of the evidence to support the conviction. Stogsdill v. State, supra; Baker v. State, Tex.Cr.App., 447 S.W.2d 172; Moore v. State, Tex.Cr.App., 532 S.W.2d 333; Higgins v. State, Tex.Cr.App., 515 S.W.2d 268; Indo v. State, Tex.Cr.App., 502 S.W.2d 166. As stated in Suff v. State, supra, at 817:

“. . . As to those situations in which one may be guilty as a principal when actually present, the very least that is required is, in addition to physical presence, encouragement by words or agreement to the commission of the offense. Such agreement must be prior to or contemporaneous with the criminal event.”

The Court in Suff also noted the quotation from Robinson v. State, 493 S.W.2d 780, 782, where this Court stated:

“To be guilty of a felony offense as a principal, a defendant must be actually present at the time of its commission or if not present at the time of the commission of the offense he must at the time the act is being done, be himself actively engaged in the furtherance of the common purpose and design at some other place.”

The evidence here does not even show that the appellant was present at the time of the commission of the offense, let alone providing encouragement by words or deeds.

To convict the appellant under the facts presented in this case required the jury to engage in rank speculation that he either committed the offense or was present and providing encouragement to his brother in the commission of the offense.

The judgment of conviction is reversed and reformed to reflect an acquittal under the authority of Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). This cause is remanded for proceedings pursuant to Article 37.-12, V.A.C.C.P.

DALLY, J., concurs in the results.


author: TOM G. DAVIS, Judge. DOUGLAS, Judge,

text:
    Joseph Lynn ROGERS, Appellant, v. The STATE of Texas, Appellee.
    No. 57204.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 10, 1979.

      Hugh E. O’Fiel, Beaumont, for appellant.
    Tom Hanna, Dist. Atty., and William G. Ogletree, Asst. Dist. Atty., Beaumont, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated rape. V.T.C.A. Penal Code, Sec. 21.03. Punishment was assessed by the jury at 30 years.

In addition to the brief filed by the appellant’s appointed counsel, appellant has filed a pro se brief raising an additional ground of error. Although this pro se brief was neither timely filed nor filed with the clerk of the trial court, we have concluded that this contention should be considered in the interest of justice. Art. 40.09, Sec. 13, V.A.C.C.P.

Appellant challenges the sufficiency of the evidence to prove that the rape was aggravated. Appellant does not contend that the evidence was insufficient to support a conviction for rape under V.T.C.A. Penal Code, Sec. 21.02, but only maintains that the evidence was insufficient to prove that he compelled “submission to the rape by threat of death [or] serious bodily injury.” Sec. 21.03(aX2). This contention requires an in-depth review of the evidence regarding appellant’s actions and the threats made.

On direct examination of the prosecutrix, the following testimony was elicited:

“Q. What did you do after he said it was the mail man?
“A. I told him just a minute and I went back into the bedroom and put my blouse back on and went to the door and I answered the door.
“Q. Did you open the door all the way or what did you do in that regard?
“A. I opened the wooden door and before I had a chance to say anything I was hit in the face.
“Q. You were hit in the face from a blow from some instrument or what?
“A. His fist.
“Q. We assume then this was a male at the door?
“A. Yes, sir.
“Q. And this person hit you in the face with his fist?
“A. Yes, sir.
“Q. Did he knock you unconscious?
“A. No, he knocked me back up against the dining room table and I was on the floor.
“Q. This person came into your apartment?
“A. Yes, sir.
“Q. What did he do when he came in?
“A. I was raped.
* * * * * #
“Q. How did your clothes come to be off?
“A. He told me to take them off.
“Q. Did he ask you to take them off or tell you to take them off?
“A. He told me to take them off.
“Q. What did you do?
“A. I told him no.
“Q. What did he do at this point?
“A. He told me I had better take them off right now.
“Q. Did you feel threatened in any manner?
“A. Yes, I felt threatened.
“Q. Did you take your clothes off or did he?
“A. I started to take them off and then he helped.
“Q. After he took your clothes off what happened at that point?
“A. I was raped.
* * * * * *
“Q. At any time during the intercourse did he tell you to shut up or make any threats against you?
“A. He told me to keep quiet and not make any noise.
“Q. Were you making any noises?
“A. I guess I was because that’s when he told me to be quiet.
* * * * * *
“Q. D_, were you afraid at this point?
“A. Yes, I was.
⅝ ‡ ⅜ % * *
“Q. What happened at that point?
“A. After he got the beer?
“Q. Yes, ma’am.
“A. He was getting ready to leave and I still had the bedspread around me and I went into the living room and he warned me not to call the police and at that time the phone rang. It was my husband. At that time we weren’t married yet, and he was checking on me, I guess, and he wanted to know how I was and I didn’t say anything. He was standing there listening and we had our little conversation and then Bryan hung up, and he told me again not to call the police and he said he knew what kind of car I drove and he named the make it was and said that if I called the police I would find something waiting for me under the hood one day.
“Q. Is that what he said immediately before leaving?
“A. Yes, sir.
* * * * * *
“Q. And at the time this intercourse took place you were in fear for your life?
“A. Yes, sir.
“Q. Were you in fear that he might hurt you badly?
“A. Yes, sir.
“Q. Did you have any visible injuries as a result of this?
“A. Yes, sir, I had two black eyes and a swollen nose,
“Q. They, in fact, x-rayed your nose in the hospital, did they not?
“A. Yes, they did.”

0n cross.examination, the following testimony was g¡ven by the pr0secutrix:

“Q. You mentioned a towel that he wrapped around his fist, is that correct?
“A. Yes, sir.
“Q. Do you know where that towel came from?
“A. No, sir.
“Q. Do you know where the towel is now?
“A. No, sir.
“Q. And it’s your testimony, Ms. C_, that as soon as you opened the door that’s when you were hit?
“A. Yes, sir.
“Q. Were you able to see this individual before he hit you?
“A. Just a glance just for a split second.
******
“Q. Concerning what this individual told you, Ms. C_, as far as threats and things of that nature, can you tell me specifically any threats the defendant may have made to you on that occasion?
“A. Well, first he threatened to hurt me if I wasn’t quiet, if I didn’t keep my mouth shut.
“Q. When he threatened to hurt you did he show you any type of weapon?
“A. No, he didn’t.
“Q. He just verbally told you he would hurt you?
“A. Yes, sir.
“Q. Did he say in what manner he would hurt you?
“A. He just said he would hurt me.
“Q. Did he at any time come out and say he would kill you if you didn’t submit to his acts?
“A. No.
“Q. And you never saw any weapon of any type on this individual?
“A. No.
“Q. And, in fact, the only blow he struck to you was when he first appeared at the door?
“A. Yes, sir.
“Q. He never hit you or hurt you in that manner after that?
“A. No.”

The issue presented is whether the blow inflicted by the appellant upon entry and the threat to “hurt” the prosecutrix are sufficient to support a finding that he threatened imminent and serious bodily injury.

V.T.C.A. Penal Code, Sec. 1.07(a)(84), defines serious bodily injury as:

“ ‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

Thus, unless the acts of the appellant threatened serious bodily injury as defined above, the conviction for aggravated rape cannot stand.

In Blount v. State, 542 S.W.2d 164, this Court was faced with a similar situation. The rape victim in Blount had received a bruise on her arm from being dragged to the bedroom by two men that had broken into her trailer. No weapons were exhibited and no present threats of death were made.

The Court, in considering whether threats of serious bodily injury were made, stated the following:

“A threat can be communicated by action or conduct as well as words. Most v. State, Tex.Cr.App., 386 S.W.2d 537; May v. State, 172 Tex.Cr.R. 490, 358 S.W.2d 379. In the instant case, however, there was no evidence of any threat by any means that rose to the level of the quoted statutory definition. No weapons were used; the prosecutrix was not mistreated to the extent that serious bodily injury might have resulted, and no verbal or written threats of such nature were communicated.
“It is necessary, therefore, that the judgment be reversed. See Zamora v. State, supra [Tex.Cr.App., 449 S.W.2d 43]; May v. State, supra; cf. Banks v. State, [Tex.Cr.App.] 530 S.W.2d 940; Twomey v. State, [Tex.Cr.App.] 520 S.W.2d 784; Lewis v. State, [Tex.Cr.App.] 503 S.W.2d 806; DeVonish v. State, [Tex.Cr.App.] 500 S.W.2d 800; Broadway v. State, [Tex.Cr.App.] 418 S.W.2d 679; Most v. State, supra.” 542 S.W.2d at 166.

The Court concluded that although the evidence was sufficient to prove rape under V.T.C.A. Penal Code, Sec. 21.02, it was insufficient to show an aggravated rape under Sec. 21.03, supra, and thus the case was reversed.

In Little v. State, 573 S.W.2d 775, this Court found the evidence sufficient to support a conviction for aggravated rape. In Little, the prosecutrix was being helped by the defendant in repairing a flat tire on her car when she “felt something strike her head” and lost consciousness. She awoke to find the defendant engaged in intercourse with her. The defendant threatened to kill her when she asked him a question; she then again lost consciousness. It was shown that she had suffered severe bruises to her face, had cuts in and around her mouth, and around her hose and left ear, and that her jaw and some teeth had been broken. She was unable to testify as to what the appellant hit her with, however. The Court in Little held the blow delivered in a manner as to break her jaw and render her unconscious, coupled with the threats on her life, were sufficient proof to support the conviction for aggravated rape.

In Brown v. State, 576 S.W.2d 820 (1978), this Court found that holding a gun to the prosecutrix’s head during the rape was sufficient to show the aggravating circumstances as required under Art. 21.03, supra. In Banks v. State, 530 S.W.2d 940, this Court found that a showing that the defendant had a pistol and threatened to kill the rape victim was sufficient to show a threat of serious bodily injury.

In Church v. State, Tex.Cr.App., 552 S.W.2d 138, a showing that the defendant placed a knife to the victim’s throat was sufficient to show the requisite threat under Art. 21.03, supra. A combination of choking the victim, and then threatening the victim with a knife, was sufficient to support a conviction for aggravated rape in Twomey v. State, Tex.Cr.App., 520 S.W.2d 784.

The cases above illustrate the proof necessary for a finding of a threat of serious bodily injury. In each case where this Court held the evidence was sufficient to support a conviction under Sec. 21.03, there was a showing that a gun or knife was used, or a threat to kill the victim was made, or serious bodily injury was inflicted, or a combination of two or more of these factors. Only in Blount, supra, where the proof did not show that any of these three acts had occurred, did the Court fail to find the evidence supported a conviction for aggravated rape. In the present case, as in Blount, no showing has been made that any weapon was used, or a threat to kill made, or serious bodily injury inflicted.

The injuries testified to by the prosecutrix were not serious bodily injuries as defined by Sec. 1.07(a)(34), supra. Her own testimony also establishes that no threat on her life was made, nor was any knife, gun, or other weapon used. We find that the evidence was insufficient to prove the aggravated circumstances required under Sec. 21.03, supra.

The only threat that could rise to the level of a threat of serious bodily injury was made as the appellant was leaving. The appellant’s threat that the victim would find something “waiting under the hood” of her car if she called the police was not one made to compel submission, however, but a threat of future harm. A threat of future harm is not a threat of imminent harm, thus it will not support a finding of aggravating circumstances. Blount v. State, 542 S.W.2d at 166.

We hold only that the evidence was insufficient to prove that the appellant threatened death or serious bodily injury to the victim, and do not find that the evidence was insufficient to prove rape under Sec. 21.02. This is important in light of the Supreme Court decisions in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), which bar further prosecution when the evidence is found insufficient to support a conviction. It should be noted that the Supreme Court did not reach the issue of whether the defendant could be retried for the lesser included offense, but held only that another trial for the same offense was barred by double jeopardy. Greene v. Massey, 98 S.Ct. at 2154, n. 7.

The judgment is reversed. No further prosecution shall be had for aggravated rape under Sec. 21.03, supra.

DOUGLAS, Judge,

concurring.

The result reached in the case is correct; however, there should be no reliance upon Blount v. State, 542 S.W.2d 164 (Tex.Cr.App.1976), because the deaf victim in that case testified that a knife was used during the transaction.

      . The record does not reflect the results of the x-ray.

      . In Seaton v. State, 564 S.W.2d 721, this Court found that the evidence was sufficient to support a conviction for aggravated rape of a child. Although the evidence was unclear as to threats made, and there was no showing of a weapon used, the evidence revealed that the defendant had compelled the 9-year-old prose-cutrix to submit to intercourse by beating her and had continued to beat her during the act. Considering the age of the prosecutrix and the serious consequences of any attack on a child, we cannot see that this holding is inconsistent with our holding today.

      . See Moss v. State, Tex.Cr.App., 574 S.W.2d 542 (1978) (on appellant’s motion for rehearing).