author: SHRIVER, Presiding Judge.

text:
    Jerry D. HIGGINS, Plaintiff-Appellant, v. Harold VINSON and wife, Hazel Vinson, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Oct. 29, 1976.
    Certiorari Denied by Supreme Court Feb. 7, 1977.

      William W. Burton and Royce Taylor, Murfreesboro, for plaintiff-appellant.
    James W. Buckner, Murfreesboro, for defendants-appellees.
   OPINION

—The Case—

SHRIVER, Presiding Judge.

This is a suit to recover damages for personal injuries sustained by plaintiff as a result of an accident which occurred on September 15, 1973 when the automobile driven by plaintiff on Highway 53 in Cannon County, Tennessee, collided with a horse belonging to the defendants which was in the highway adjacent to their farm.

The ease was tried before the Circuit Judge and a jury and at the close of plaintiff’s proof, the Judge sustained defendants’ motion for a directed verdict, from which verdict and judgment plaintiff appealed and has assigned errors.

—Assignments of Error—

There are three assignments as follows:

“1. The Court erred in directing a verdict in this case at the close of plaintiff’s proof where material evidence was presented, which if believed by the jury, would have justified a finding of negligence on the part of defendant and a verdict in favor of plaintiff.
2. The Court erred in finding that ‘there’s no concrete proof that this was not a lawful stop-gap.’
3. The Court erred in failing to apply the doctrine of res ipsa loquitur to the facts in this case.”

—The Pleadings and the Facts—

The original complaint, filed September 13, 1974, charges that on the night of September 15, 1973, plaintiff was driving East on State Highway 53 in Cannon County, Tennessee, in an automobile owned by him; that he was traveling at a lawful rate of speed and was keeping a proper lookout ahead when a horse belonging to the defendants dashed onto the road in front of his ear; that he was unable to stop in time to avoid a collision, as a result of which plaintiff sustained severe and painful injuries, incurred expenditures for medical and hospital care, and his car was totally demolished, the market value of which immediately prior to the accident was $2,750.00; that plaintiff has not been able to work at his regular employment or any gainful occupation since the aforesaid accident, and, as a result, has lost earnings and has been otherwise damaged.

It is also charged that defendants had negligently allowed their horse to escape onto the road by either failing to keep a proper stopgap or allowing the fence and/or stopgap to become in a state of disrepair and that defendants’ horse had been known to run at large previously and was then running at large in violation of Section 44-1401, T.C.A., and that defendants, therefore, were guilty of negligence, per se.

By answer, the defendants joined issue on the material allegations of the complaint and as a result of one of the affirmative defenses alleged in the answer, the original complaint was, on motion of plaintiff, amended so as to name Janice Carol Higgins as a plaintiff, insofar as the damages to the automobile are concerned, since said automobile was owned by her and Jerry Higgins jointly.

Plaintiff, Jerry Higgins, testified that he and his wife were riding home on the night in question and that as they proceeded along the highway adjacent to the home of the defendants at about 2:00 o’clock a. m., it was dark and foggy. Suddenly, a horse appeared in front of them only a few feet away crossing the road going in the direction of the defendants’ house and a stopgap that led to a pasture belonging to the defendants. Plaintiff testified that he was traveling about forty-five miles an hour and that, although he applied his brakes as quickly as possible, it was too late to avoid striking the horse. He stated that the impact was such as to demolish the front of his car, crushing the hood, windshield and the top of the automobile, and that the fair market value of the automobile at the time was about $3,000.00 before the accident and was only about $100.00 as salvage after the accident.

He stated that he went to the house of the defendants and awakened Mr. Vinson who came out and recognized the horse as belonging to him and the record shows that he later had the horse dragged away.

Plaintiff described the horse as being a large gray horse, about sixteen hands high, and one that he had seen in the pasture of the defendants on a number of occasions as he passed along the highway.

Plaintiff described the stopgap which was a part of the enclosure of the pasture in which defendants kept their livestock, including horses. He stated that he had measured the stopgap and found it to be about seven feet wide with approximately four inch gaps between the slats which were made of wood and were either two-by-sixes or two-by-eights. Certain pictures were filed as exhibits showing the fences and the stopgap in question, particularly Exhibit 10 to the testimony of Jerry Higgins which is a close-up view of the stopgap.

When asked about the location of the horse when he first saw it, he answered that it was near the middle of the road going back toward the stopgap and that the horse just dashed out in front of his car.

On cross-examination, he was asked about the condition of defendants’ fences and stopgap, to which he answered that they were in good condition but that any horse will cross a stopgap.

At another point he stated that he had seen this same horse out on the road one time previous to the night of the accident.

Janice Jernigan [Higgins], on direct-examination, corroborated the testimony of Jerry Higgins as to how the accident happened and the description of the horse. She was questioned concerning her experience with horses and stated that she had been riding for several years. She testified that she had ridden horses across stopgaps a number of times and that her husband, Jerry, had also ridden across stopgaps. She also said she had seen a horse of defendant out on the highway once or twice before the night of the accident and described it as being similar to the one involved here.

She was questioned on cross-examination as to riding across stopgaps on horseback and stated that she had ridden across two or three such gaps on her brother-in-law’s farm and that these gaps were put in by the County and substantially like the gap at the Vinson place. She was asked if her brother-in-law kept a gate across the stopgap and she answered: “Yes, he does if he has horses running out.”

Roy Frieze testified that when he was working in Murfreesboro and was on his way home about 2:00 o’clock one morning, he passed defendants’ place. He stated: “I topped a little hill there and there were two horses standing in the road. Probably, 50 feet, maybe 100 feet on down the road from his driveway.”

He said that on that occasion his car skidded about 70 feet frontwards and then turned sideways and slid about 25 feet off into a ditch and he told the Vinsons about this experience which occurred adjacent to their place.

Mike Pemberton testified that he is a resident of Cannon County, that he usually passed along the front of the Vinson place several times a day; that he was familiar with the horses kept there and described one as a gray horse, about fifteen or sixteen hands high, and stated that he saw one of the horses out on the highway “pretty often I imagine at least about three times a week.” When asked if this was the same horse that he saw and if he could identify it, he stated that he could. He stated: “I saw the same horse on the side of the road that I saw in the pasture.”

Jack Pemberton, another witness, among other things, testified:
“At one time — I mean on several times because at that particular time of the year we had football practice and of the evenings I would be coming in and I would see a horse out a few times of the evening when I went home.
Q. Could you describe this horse?
A. Yes, sir, he was a big grey horse, stood about 16 hands, I guess, a big horse.”

The witness also stated that he had seen this particular horse on Mr. Vinson’s farm. He was asked if he had ever ridden a horse across a stopgap and he answered: “Yes, sir.” He was then asked and answered:

“Q. Did you train your horse to ride across stopgaps?
A. Well, no sir, ... I just paced him and he went on across the stopgap, and he has been going across them ever since.”

He also testified concerning a horse which he described as similar to the one involved in the accident, stating:

“. . . We would come home very evening and sometimes you would see him out two or three times a week.”

Johnny Elkins, on cross-examination, referring to the horse of defendants’, stated:

“He was out when Roy wrecked. I seen him before the accident out on a different night coming home from work — it was a grey horse.”

Section 44-1401, T.C.A., provides as follows

“44-1401. Livestock not to run at large — Punishment.—It shall be unlawful for the owners of any livestock, as the same are commonly known and defined, to willfully allow the same to run at large in this state. Any person found guilty of a violation of this section will be fined not less than five dollars ($5.00), nor more than twenty-five dollars ($25.00).”

In Overbey v. Poteat, 206 Tenn. 146, 332 S.W.2d 197 (1960), reference is made to Wilson v. White, 20 Tenn.App. 604, 102 S.W.2d 531 (1937) where it was held that in an action for damages caused by defendant’s livestock, a finding that fences inclosing the stock were in good condition and proper repair, was sufficient to show the fences were lawful fences.

It is pointed out, however, in Overbey that the opinion of the Court of Appeals in Wilson v. White dealt with an 1889 statute, whereas, Section 44-1401, T.C.A., was enacted in 1947. In dealing with the statute as it exists, the Supreme Court said:

“It is our opinion that the Act is designed to cover both the private property of others as well as highways, and the purpose is to prevent domestic animals from straying anywhere on account of the negligence or wilful conduct of the owner. The above article poses the exact question that we have in this case on page 480 first full paragraph, with reference to relative rights of a motorist on a highway. Inspection of same shows that in the Restatement of Torts, Sec. 518, the rule now is not one of absolute liability but depends upon failure to exercise reasonable care to confine or otherwise control the animal and secondly, that the harm is of a sort which it is normal for animals of its class to do.” [206 Tenn. p. 152, 332 S.W.2d p. 200]

It is stated by counsel for appellant that they have been unable to find any statutory law in Tennessee governing stopgaps and that the omission of stopgaps in the statutes governing lawful fences and enclosures, T.C.A. § 44-1401, and particularly § 44-1703 entitled “Horses, cattle, and mules sufficiently fenced,” would indicate that a stopgap is not a part of a lawful fence.

As is seen from the evidence here-inabove alluded to and quoted from, it is in nowise uncommon for horses to cross stopgaps of the kind that the defendants below evidently depended upon to enclose their pasture and prevent horses going from that pasture onto the highway.

Defendants rely heavily on Moon v. Johnston, 47 Tenn.App. 208, 337 S.W.2d 464, which we consider to be readily distinguishable from the case at bar, especially on the facts. In the instant case there is evidence from which a jury might very reasonably conclude that defendants’ horses and, particularly, the horse involved in the accident in question here, had been out of defendants’ pasture and onto the highway on a number of occasions prior to this accident, which defendants knew or should have known, and that, therefore, defendants were negligent in not enclosing their pasture with a suitable gate or fence that would prevent this horse and other horses belonging to them from going out on the highway and, thus, becoming a hazard to motorists, particularly at night.

For the reasons above indicated, it seems clear to us that plaintiff introduced sufficient proof to raise a jury question and that it was error on the part of the Trial Judge to direct a verdict as was done in this case.

We call attention to the oft repeated rule with respect to directed verdicts which was stated in Poole v. First Natl. Bank of Smyrna, 29 Tenn.App. 327, 196 S.W.2d 563 (1946), where it was said:

“The Trial Judge, and the Appellate Court on review, are required in determining a motion for a directed verdict, to look to all of the evidence, to take the strongest legitimate view of it in favor of the opponent of the motion, and to allow all reasonable inferences from it in his favor, and to discard all countervailing evidence, and if then there is any dispute as to any material determinative evidence, or any doubt as to the conclusion to be drawn from the whole evidence, the motion must be denied.”

It results that Assignment of Error No. 1 is sustained, the judgment of the Trial Court is reversed, and the cause is remanded for a new trial.

REVERSED AND REMANDED.

TODD and DROWOTA, JJ., concur.


source: Caselaw Access Project

author: GREENHILL, Chief Justice.

license: Public Domain

text:
    Bob BULLOCK, Comptroller of Public Accounts of the State of Texas v. STATISTICAL TABULATING CORPORATION.
    No. B-6209.
    Supreme Court of Texas.
    March 16, 1977.
    Rehearing Denied April 27, 1977.
    John L. Hill, Atty. Gen., Gilbert J. Ber-nal, Jr., Asst. Atty. Gen., Austin, for petitioner.
    Donald F. Nobles, Austin, for respondent.
   GREENHILL, Chief Justice.

This is a sales tax case brought by Statistical Tabulating Corporation [Plaintiff] to recover $20,800.47 paid under a deficiency determination made by then Comptroller of Public Accounts, Robert S. Calvert. Bob Bullock is successor in office to Robert S. Calvert and is referred to herein as the Comptroller.

The sole question before us requires that we determine whether a certain aspect of Plaintiff’s business involves a “sale of tangible personal property at retail,” such that a sales tax is due under the “Sales, Excise and Use Tax,” contained in the Revised Civil Statutes of Texas, Title 122A, Taxation-General, Article 20.01 and following. References herein are to particular articles of Taxation-General.

Plaintiff, Statistical Tabulating, paid under protest the taxes assessed by the Comptroller. Administrative remedies were exhausted when the Comptroller issued a Notice of Disallowance of Claim for Refund. Statistical Tabulating then brought their suit against the Comptroller for refund pursuant to Article 1.05 of the above statute. The trial court, after a trial without jury, rendered judgment for the Comptroller; i. e., that the transaction was taxable. The Court of Civil Appeals, finding that Plaintiff’s business activity did not constitute a sale, reversed the judgment of the trial court and rendered judgment for the Plaintiff; i. e., that the taxes paid be recovered. 538 S.W.2d 259, Tex.Civ.App.

The particular portions of the statute to be construed are in Section K of Article 20.01. They read:

(K)(l)(a) “Sale” means and includes any transfer of title or possession . in any manner or by any means whatsoever, of tangible personal property for a consideration.
(K)(2)(a) “Sale” includes the producing, fabrication, processing, printing or imprinting of tangible personal property for a consideration for customers who furnish, either directly or indirectly, the materials used in the producing, fabricating

The tax statute includes both a general definition [the first one above] and a list of situations specifically included in the definition of “sale.” [See the second definition above.] We affirm the holding of the Court of Civil Appeals. In so doing, we apply the “essence of the transaction” test applicable under the general statutory definition of “sale.”

The facts are uncontested. Plaintiff company is engaged in various aspects of data processing. The allegedly taxable transaction occurs in the following manner. A customer brings raw data, i. e., business records, invoices, and the like, to Plaintiff. It translates or transfers the data into a code which a computer can read and which in this instance, is represented by holes punched in a particular order on data processing cards. The coded data may also be transmitted by tapes or by telephone in addition to cards. Key punch cards are here delivered to the customer with an instruction sheet for a charge referred to in the Act as consideration.

Plaintiff’s employees make this transfer or translation of data on a key punch machine. The operation of the machine is similar to the operation of a typewriter or typeset machine. The key punch operator “types” and thereby transfers the data onto the cards in accordance with an instruction sheet prepared either by the customer or by Plaintiff following the customer’s directions. The instruction sheet contains 80 columns as does each data processing card and provides a code for the translation and for the “reading” of the cards thereafter by the customer.

After receiving the cards, the customer programs his computer in accordance with the instruction sheet. The cards are read by the computer; and the information retained in the “memory” of the machine, is permanently available to the customer on print-out sheets. The cards have no further use.

Plaintiff supplies the cards used in the transaction and pays a sales tax when it buys the cards from a distributor. Customers are billed by the Plaintiff on either an hourly labor rate or upon a flat rate per one thousand cards. There is no separate charge to the customer for the cards. Except in a minimal sense, there is no charge for the cards; the charge is for the transfer or translation of the data on to the cards.

The law places a tax on the receipts from the sale at retail of all “tangible personal property.” As stated above, we must look first to the general definition of “sale” found in Article 20.01(K)(l)(a) to determine whether this is a sale of tangible personal property. Tangible personal property is defined in the statute as “personal property which may be seen, weighed, measured, felt or touched or which is in any other manner perceptible to the senses.”

In Williams and Lee Scouting Service Inc. v. Calvert, 452 S.W.2d 789 (Tex.Civ.App., 1970, writ ref’d), this Court indicated approval of the test used by the Court of Civil Appeals to determine whether a transaction is a sale. It said that, “The basic question here is what is being sold? . . . The law places a tax on ‘tangible personal property.’ ”

If the object or the essence of the sale is not tangible personal property but intangible property then the transaction is not taxable under any definition of “sale.”

We agree with the Plaintiff’s contention that the true object of this transaction is not the data processing card as contended by the Comptroller, but the purchase of coded or processed data, an intangible.

The customer brings in raw data which is conceded by both parties to be an intangible item, but perceptible to humans. The customer then buys Plaintiff’s capabilities in effecting a translation of the data such that it becomes perceptible to a computer. The essence of the transaction for the customer is an intangible product, coded data, and Plaintiff’s capabilities in making the translation or coding. The coded data could be transmitted from the Plaintiff’s key punch machine to customer’s computer in several forms, i. e., tapes and telephones, as well as cards.

In Williams and Lee Scouting Service Inc. v. Calvert, supra, the court found that the object of the transaction for the plaintiff’s subscribing customers was the scouting service provided by plaintiff. Current statistical data on oil and gas well production was continuously, gathered in the field by Williams and Lee Scouting Service employees. The data was compiled and mailed to subscribing customers in regular reports duplicated by offset printing at the plaintiff’s office. The Comptroller attempted to tax the whole transaction because a tangible item, the printed report, changed hands.

In the transaction before this Court, Plaintiff’s customers, like the customers in Williams and Lee Scouting, are desirous of something beyond the tangible object involved in the transaction. In this case, the object of the Plaintiff’s customers is to obtain a great deal more than the key punch cards. As in Williams and Lee Scouting, the information could have been transformed into several forms. While this transaction is closer to just printing alone than the transaction in Williams and Lee Scouting, the element of service here is still the “essence of the transaction.”

Any ambiguity in application of the above test must be resolved in favor of the taxpayer, for, as noted by the Court of Civil Appeals, a taxing statute must be construed strictly against the taxing authority and liberally in favor of the person [or entity] sought to be held. Wilson Communications, Inc. v. Calvert, 450 S.W.2d 842, 844 (Tex.Sup.1970).

The Comptroller contends in both points before the Court that the transaction at issue is a sale under a special definition of Sale found in Article 20.01(K)(2)(a). This section includes within the definition of sale, the “producing, fabrication, processing, printing or imprinting of tangible personal property for consideration . . . for consumers who furnish . . . the materials used in the producing, fabricating . .” It does not, however, eliminate the requirement that the “object” of the sale must be “tangible personal property.”

Our understanding is that the transaction at issue here is not one which the legislature intended to be taxed under this section. The section was intended to prevent taxpayers from avoiding sales taxes by structuring a transaction such that it appears that there was no transfer of title or possession of tangible personal property. It prevents discrimination between the customer who can afford to purchase custom-made articles and that customer who “buys off the rack.” This is not the case here.

No other Texas cases are in point. Decisions from other jurisdictions show a divergence of opinion in dealing with the question of whether transactions of printers, lithographers and photographers fall within the ambit of various sales tax acts. These cases provide limited assistance since we have held that the transaction before us is more than just printing or photographing.

In determining the “object of this transaction,” many factors are relevant. We have attempted to follow the design and purposes of the statute. The issue must be answered on a ease by case basis. Although tangible personal property, i. e., cards, does change hands, the receipt of the cards does not constitute the essence of the transaction, the basic purpose of the customer in entering into the transaction.

The judgment of the Court of Civil Appeals is affirmed.

      . These Revised Civil Statutes are codified by Vernon in its Texas Civil Statutes Annotated as V.A.T.S. Tax.-Gen., article 20.01 et seq. The pertinent provisions are set out in footnote 2. Emphases are added and ours unless otherwise indicated.

      . The pertinent parts of the article are:
      Art. 20.02
      There is hereby imposed a limited sales tax at the rate of three and one-fourth per cent (3⅛%) on the receipts from the sale at retail of all taxable items within this State.
      Art. 20.01(W)
      Taxable Items. “Taxable Items” means tangible personal property.
      Art. 20.01(P)
      Tangible Personal Property. “Tangible Personal Property” means personal property which may be seen, weighed, measured, felt or touched, or which is in any other manner perceptible to the senses.
      Art. 20.01(D)
      Receipts. (1) “Receipts” means the total amount of the sale or lease or rental price . of the retail sales of taxable items by retailers, . . . without any deduction on account of any of the following: . (b) the cost of the materials used, labor or services costs, interest paid, losses or other expenses. Art. 20.01(K)
      Sale.
      (1)(a) “Sale” means and includes any transfer of title or possession ... in any manner or by any means whatsoever, of tangible personal property for a consideration.
      ***** *
      (2) “Sale” includes (a) the producing, fabrication, processing, printing or imprinting of tangible personal property for a consideration for consumers who furnish, either directly or indirectly, the materials used in the producing, fabricating, processing, printing or imprinting.

      . See: J. Heilerstein, The Scope of the Taxable Sale Under the Sales and Use Tax Acts: Sales as Distinguished from Services, 11 Tax L.Rev. 261, 287-89 (1956).
      “To deal with the problem, most of the sales tax levies either explicitly include in the definition of sale, or provide for the taxation of, fabrication or processing services performed on goods or articles furnished by the customer. Hence, whether the customer buys fabric directly from his tailor or from a fabric house and the tailor fashions the fabric into a suit of clothes, the fabrication services are levied upon, so that a tax is collected on the total price paid by the customer for the fabric and the services. And the same principal applies to all types of processing of new materials (as distinguished from repairs and renovations) into furniture, upholstery, cabinets, drapes, curtains, awnings, and other articles.
      And these results are sound. Essentially we regard ourselves as buying the finished article, whether the suit or the dress or the living room couch is made in the back of the shop by special order or in the factory a thousand miles away. In both instances, products and services are involved. The difference between them is a matter of the timing of the various steps in relation to the customer’s order. And in both cases the significant economic event is the delivery of the completed article to the customer. Hence, taxing both the services and materials which go into the finished article, whether acquired from one or several dealers and whether custom made or ‘store boughten’ seems proper.” [emphasis theirs] The only “materials” or property furnished
      by the consumer were raw data and business records which we regard as intangible property.


author: BROWN, Commissioner. DOUGLAS, Judge

text:
    Louis SCOTT, Appellant, v. The STATE of Texas, Appellee.
    No. 52137.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.
    Dissenting Opinion On State’s Motion For Rehearing April 13, 1977.
    Barry P. Helft, Dallas, for appellant.
    Henry Wade, Dist. Atty., Ronald D. Hinds, David C. Schick and Stewart C. Robinson, Jr., Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for burglary. Appellant was tried before a jury which found him guilty and assessed punishment at five (5) years in the Texas Department of Corrections.

The sufficiency of the evidence to support the conviction is not challenged. Appellant’s sole ground of error is that the trial court erred in overruling appellant’s motion to suppress evidence seized from the automobile in which appellant was a passenger, because the search was illegal.

The State’s only witness at the motion to suppress hearing was the arresting officer, J. S. Williamson. Williamson testified that he was a member of the Tactical Division of the City of Garland Police Department. He stated that he was on patrol, in plain clothes and driving an unmarked car, during the early morning hours of February 25, 1975, which was a Tuesday. He defined his patrol area at that time as the Towngate area, which consisted of fashionable new townhouses and a large apartment complex known as Eastgate located across the major thoroughfare servicing the area. Williamson characterized the area as a “high crime area” and stated that he was assigned to “burglary patrol” in that area based on a computer analysis of the likelihood of crime to be committed in that area during that particular time. He stated that there had been reports of hubcap thefts in the East-gate complex at a time prior to this particular occasion, but the precise time was not determined. He stated that at about 1:30 a. m. he saw a car coming from the direction of some of the newer townhouses on a street where only a few of the homes were occupied and some model townhouses were located. Williamson said that he pulled his car to the curb to observe the other car because “I [had] been down that area for several months, and during this time, at this time of night, there is no cars on that street . . . the people that live in that area . . . have the rear end garages . . . they pull in the alley and they go in homes . . . there is never any activity out there at night . .” He stated that there were no street lights in the area and that it was totally dark. The other car passed within a few feet of Officer Williamson’s vehicle and he stated that he could determine that it was a “white over blue '74 Cadillac” containing two black males in the front seat and what appeared to be “sheets of material” about five feet square propped up in the back seat.

Williamson stated that he turned his patrol car around and followed the Cadillac for approximately two blocks before turning on his red lights to stop it. He said that he reported to the radio dispatcher that he was “out on traffic” and requested a backup squad. He stated that he had observed no traffic violations and that the Cadillac had proceeded at an average speed. He testified that he stopped the car “purely to investigate due to the circumstances . under which (he) had seen it around the townhouses.” He stated that he asked the occupants of the car for their identification and the driver, a Mr. Smith, produced an identification card (it was not stated whether this card was a driver’s license). Appellant was sitting in the passenger seat of the car and produced no identification, but told Williamson his name and birth date. Williamson stated that as he approached the Cadillac to request identification, he passed the rear window of the car and determined that the “sheets of material” were oil paintings. He asked Smith and appellant what they were doing in the area and where they got the paintings and they responded that they had exited the nearby LBJ Freeway and had become lost on their way to decorate a friend’s apartment. A second officer arrived on the scene and Williamson sent him back to the townhouses to see if there were any signs of burglary. While the second officer was gone, Williamson radioed the dispatcher to check the identification of Smith and appellant (the record does not show the result of this radio check). The other officer then called Williamson over the radio to advise that it appeared that at least one of the townhouses had been burglarized and that there were bare spaces on the walls where pictures had been hanging.

Throughout the duration of this investigation (approximately twenty to thirty minutes) appellant and Smith alternately sat in their vehicle and paced up and down the road and expressed their dissatisfaction to Williamson at being detained. After receiving word from the other officer that the townhouse had been burglarized, Williamson placed appellant and Smith under arrest and put them in his patrol car. He then retrieved the keys to the Cadillac and opened the trunk where he discovered other decorative items apparently stolen from the townhouse.

The legality of the search of the Cadillac and the seizure of the items depends on the justification for the initial stop of the car. The constitutional validity of such an investigative stop depends on “specific and articulable facts and circumstances” and the officer’s reasonable inferences from those facts in each individual case. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1967); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972). It is axiomatic that the investigative stop and the subsequent search cannot be justified by what is discovered. Sibron, supra; Brown, supra.

We compare the facts and circumstances in Brown, supra, with the instant case. In Brown, the Dallas police officer was on routine patrol in the downtown area of that city in an unmarked patrol car. At about 1:30 a.m. he saw a green Volvo bearing out-of-state license plates about one half block ahead of him on a poorly lighted, sparsely traveled street. He stated that his attention was attracted to the car because there were clothing and a box of crackers on the ledge between the back seat and rear window. He stated that he could see that the car contained four men, three of whom “fit the general description” of persons who had committed an armed robbery at a Dallas supermarket on the previous day. That general description consisted only of race and approximate height and weight. He stated that he observed the two men in the back seat turn around and look toward him and then move their shoulders. He concluded they were concealing firearms in the back seat. The car was subsequently stopped and searched and various items of contraband were found.

We determined that the officer’s justification for stopping the car was based on two facts, (1) his conclusion that they fit the general description of the armed robbers, and (2) his conclusion that the two men in the back seat were concealing weapons. We held his conclusions insufficient to justify the stop and search on the basis that the general description of height, weight and race would serve, at most, only to raise a mere suspicion that the men were the robbers and such an inarticulate hunch or suspicion of the officer is insufficient to constitute probable cause. Sibron, supra. We further held that such suspicion could not be transformed into probable cause by the movement of the two men in the back seat. This movement was not the type of “furtive gesture” which would indicate criminal activity, but was more in the nature of “ambiguous conduct which the arresting officers themselves have provoked.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973) also involved a similar set of circumstances. There the Austin police officer was on patrol near the University of Texas campus which he characterized as a “high crime area.” He observed the taillights of a car parked at a curb and saw a man enter the car. The car then slowly drove away and the officer followed for several blocks before stopping it “to make sure everything was in order.” The officer stated that he had observed no possible traffic violations. During this investigative stop, the officer observed a paper sack on the front seat and a plastic baggie sticking out of the paper bag. He stated he could discern a green, grass-like substance, later proven to be marihuana, inside the plastic bag. Appellants were subsequently arrested and the contents of the bag introduced as evidence. Citing Brown, supra, we held that the officer had no probable cause to stop appellant’s automobile.

In examining the officer’s testimony in the present ease, we note that, as in Brown, supra, and Talbert, supra, he saw no traffic violation which would justify the initial stop. Hampton v. State, 511 S.W.2d 1 (Tex.Cr.App.1974); Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975). We note also that the officer had received no police dispatch about a suspected automobile or person which might likewise have justified the initial stop. Washington v. State, 518 S.W.2d 240 (Tex.Cr.App.1975). Compare Colston v. State, 511 S.W.2d 10 (Tex.Cr.App.1974).

Therefore, the justification for Officer Williamson’s initial stop must rest on the specific and articulable facts and circumstances which he observed and from which he drew his inferences. Those facts and circumstances consist of (1) his awareness that there were reports of hubcap thefts in the nearby apartment complex; (2) his characterization «of the Towngate area as a “high crime area”; (3) his observation of two black males driving a white and blue 1974 Cadillac on a dark, sparsely traveled street at 1:30 a. m.; and (4) his observation of the “sheeting material” in the back seat of the car.

We find the facts insufficient to justify the initial stop and it was, therefore, error to overrule appellant’s motion to suppress the evidence seized from the car.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, Judge

(dissenting).

The majority reverses the conviction on the ground that the evidence used against appellant was obtained as the result of an illegal search.

Testimony concerning the arrest and search was given by J. S. Williamson, a member of the Tactical Division of the Garland Police Department with six years’ experience. Officer Williamson was on patrol during the early morning hours of February 25, 1975. He was assigned to a high crime area in Garland known as Towngate. The high crime classification was based on a computer analysis of the probability of criminal activity occurring in that area during that particular time. Towngate was characterized as a complex of expensive townhouses.

Officer Williamson stated that there had been reports of hubcap thefts in the nearby Eastgate apartment complex earlier that evening. He stated that at approximately 1:30 a. m. he saw an automobile coming from an area where only a few of the homes were occupied and where some model townhouses were located. He had worked in that area for several months and knew that it was usually devoid of early morning activity. There were no cars on the street because the homeowners had rear-end garages which were entered through an alley. There were no street lights in the area from which the other car had come.

As a result of the conditions when then obtained, Officer Williamson pulled his car to the curb to observe the other vehicle. He determined that it was a white-over-blue 1974 Cadillac occupied by two males and that it contained four or five sheets of material propped up in the backseat. Lighting from the freeway opposite the Towngate area enabled Williamson to make these observations as the Cadillac passed within a few feet of his vehicle. The officer turned his car around and followed the Cadillac for approximately two blocks before stopping it. He stated that he had observed no traffic violations and that the Cadillac had proceeded at an average speed. He further stated that his investigatory stop was based solely upon the circumstances under which he had observed the car.

Williamson asked both occupants for their identification. The driver, Smith, produced an identification card. Appellant, without identification, told the officer his name and birthdate. As Williamson approached the Cadillac to request identification, he passed the rear window of the ear and determined that the “sheets of material” were oil paintings. They were in plain view. Williamson found the paintings to be similar to those he had observed in the townhouses. In response to Williamson’s questioning, Smith and appellant said that they had become lost while on their way to decorate a friend’s apartment with the paintings.

Officer Williamson returned to his car and called the radio dispatcher. Williamson asked the dispatcher to run a computer check for warrants on both Smith and appellant. At this point, Officer Aldridge arrived. Williamson directed him to return to the southwest section of the Towngate area to check the homes for signs of burglary. Approximately twenty minutes later, Al-dridge called Williamson to advise him that at least one of the townhouses had been burglarized and that there were bare spaces on the walls where pictures had been hanging. Williamson then placed Smith and appellant under arrest. A subsequent search of the Cadillac’s trunk revealed other stolen items.

The legality of the search of the Cadillac and the seizure of the items therein turns on the justification for the initial stop of the automobile. Circumstances which are insufficient to establish probable cause for arrest may justify temporary detention for purposes of investigation since an investigation involves a lesser intrusion upon the personal security of an individual than does an arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976). Such purposes may include determination of the identity of a suspicious individual or momentary preservation of the status quo in order to obtain more information. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974). In this connection an occupant of an automobile is just as subject to a brief detention as is a pedestrian. Adams v. Williams, supra; Wood v. State, supra. The officer must have specific and articulable facts which, in light of his experience and general knowledge, reasonably warrant such a stop. Terry v. Ohio, supra; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970), cert. denied 400 U.S. 918, 91 S.Ct. 180, 27 L.Ed.2d 158.

The case at bar is factually similar to Thompson v. State, 533 S.W.2d 825 (Tex.Cr.App.1976). In Thompson, two men were walking along a Port Arthur street at 1:00 a. m. This was a high crime area where prowlers had been recently active. Defendant was carrying what appeared to the officers as a woman’s type suitcase. The officers stopped the two men and requested some identification. Defendant told one officer that he had been convicted for burglary after that officer recognized his name.

The officers observed that defendant was carrying a blue suitcase with one metal tag reading “Western Electric Company” and a second tag bearing the name of a Beaumont woman. Defendant told them that he had found the suitcase in Baytown. He gave the officers conflicting accounts of his home address and said he did not know where he was going.

At that point the officers arrested the two suspects and took them to the police station. A subsequent search of the suitcase revealed two desk telephones. Later that morning a burglary was discovered at an elementary school in Port Arthur. A blue suitcase containing two demonstration telephones belonging to Southwestern Bell was reported stolen. The burglary took place a few blocks from where defendant and the other suspect were arrested. We held that the location and time of defendant’s detention by the police, coupled with the fact that the suitcase was evidently owned by someone other than defendant, and his inability to explain satisfactorily his possession of the suitcase were enough to warrant the arrest of defendant under Article 14.03, V.A.C.C.P.

In the instant case, the combination of the location, time, reports of recent criminal activity and the protruding sheets in the Cadillac was sufficient, in light of Officer Williamson’s experience and general knowledge, to permit him to stop and detain the automobile. The officer’s subsequent observation of the paintings, in conjunction with Officer Aldridge’s report that paintings had been recently stolen from a nearby home and the occupants’ inability to satisfactorily explain their possession of the paintings, provided Williamson with probable cause to arrest the two men pursuant to Article 14.03, supra. See Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975).

Appellant relies upon Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973). Talbert is distinguishable on its facts. There, defendant was stopped because he was driving his automobile near the University of Texas campus at 1:30 a. m. and the Austin policeman who spotted him wanted “to "make sure everything was in order.” During this investigative stop marihuana was discovered on the front seat. We held that the officer had no probable cause to stop the automobile. Our holding turned on the inaccurate characterization of the arrest location as a high crime area. The record reflected that the officer’s high crime determination was based upon personal experience, not upon objective analysis. His definition of high crime area included collisions and violations of the uniform traffic act. The record also reflected that he held the opinion that the entire University area was a high crime area. We determined that blanket-labeling such a substantial portion of Austin as a high crime area could not justify the stopping of defendant’s automobile.

No error is shown; the judgment should be affirmed.

GUPTON, J., joins in this dissent.

DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

The majority denies leave to file the State’s Motion for Rehearing. The State’s brief in support of the motion, prepared by Ron Hinds, Assistant District Attorney for Dallas County, is adopted in part as a dissent in the failure to grant such motion. With page numbers omitted, it is as follows:

“. . . The police officer had made an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and, upon seeing plain view evidence in the back seat of the automobile, further detained the two subjects for a brief period of time until a rapid investigation for criminal activity in the area could be completed by another police officer. It was only after the completion, with affirmative results, of this additional investigation, that Officer Williamson placed the two subjects under arrest and made a search of the vehicle. An outline of all facts and circumstances bearing upon the officer’s decision to make the initial stop of the vehicle would read as follows:

“(A) A computer is used by the Garland Police Department to evaluate crime rate statistics according to particular areas, particular nights, and particular times of night, in order to pinpoint probable criminal activity and assign a special six man tactical unit to these areas.
“(B) In order to effectively combat this anticipated activity, the police units were in plain clothes and unmarked cars, and were to be specifically on the look-out for burglaries and various forms of theft.
“(C) Officer Williamson had worked in that area off and on for five years, first as a patrol officer and later as a tactical officer. .
“(D) As a tactical officer he had worked among these townhomes for a period of several months prior to this occurrence.
“(E) Officer Williamson first saw the subject’s vehicle at about 1:00 a. m. . The vehicle was first seen on a street in a new section of the townhomes which is without street lights and is ‘totally dark’.
“(F) The officer’s experience was that at that time of night there were normally no cars out on that particular street and in fact, ‘there is never any activity out there at night.’ .
“(G) Further, only six or seven families were living on that particular street at that time and all had rear entry garages and, normally, never used that particular street at night. .
“(H) If anyone was encountered there at that particular time of night, ‘they are either going to be thieves, lovers or police.' .
“(I) At the time the subject’s vehicle was first observed, there were no other cars in this residential area nor were there any people on the streets. .
“(J) As the vehicle passed his parked police car, he observed two black males in a vehicle he did not recognize as belonging in the area.
“(K) He further observed four or five sheets of material, some two or three inches thick, which may have been building material, sticking up in the back seat of the automobile. . It is finally observed that the police officer indicated he would have stopped the vehicle regardless of whether the occupants were white or black. .
“It is again emphasized that at this point no arrest nor search had been made. The subjects had simply been pulled over for an investigatory stop. When Officer Williamson approached the vehicle to request driver’s license identification, he observed that the sheeting material was actually a collection of several large oil paintings. . This information in combination with the foregoing facts and circumstances were sufficient to acceptably raise the officer’s suspicions to the point of requesting a rapid investigation of the townhomes, along the street from which the subject vehicle had appeared, by a fellow officer. ... At this point, Appellant and the other occupant of the vehicle were still not under arrest nor had they been searched. They were simply being momentarily detained while the second officer checked out the town-homes. Approximately fifteen to twenty minutes passed and Officer Williamson received radio communication from the second officer that he had indeed found forced entry into one of the townhomes and that, further, paintings similar to those in the subject vehicle were missing from the townhome. . . . Only now did Officer Williamson, with this new and further information, arrest the subjects and search their vehicle. .
“A review of several similar cases is instructive in evaluating the quality of the above described activity:
“(A) In Moses v. State ([Tex.Cr.App.] 1971) 464 S.W.2d 116 (no dissent), the provisions of Article 14.03, C.C.P., were invoked in an opinion by Judge Odom to control a situation wherein a police officer patrolling a business-residential area saw a panel truck ‘coming from behind some buildings without its lights on.’ Because it was about 3:40 a. m., the officer stopped the vehicle for a brief investigation and, upon approaching it, he saw in plain view various burglary tools. The officer then felt he had sufficient probable cause to arrest Appellant and search him, finding the fruits of a burglary. “(B) Judge Douglas, in writing for the Court in Thompson v. State (1976) 533 S.W.2d 825 (no dissent), dealt with a case in which officers observed two individuals in ‘a high crime area where many prowlers had been recently reported. Appellant was carrying what appeared to the officers as a woman’s type suitcase.’ This was deemed sufficient probable cause to justify a momentary, stop and request for identification. Once stopped, Appellant provided suspicious and inconsistent name and address information and the officers observed in plain view suspicious suitcase tag information. This justified the ultimate arrest and search of the pair.
“(C) In an opinion by Judge Roberts, Castillo v. State ([Tex.Cr.App.] 1973) 494 S.W.2d 844 (no dissent), it was shown that while patrolling an alley at approximately 12:35 a. m., police officers ‘observed an automobile parked near the alley. There had been several burglaries in the area recently. Two men were seen exiting the alley, walking at a rapid pace toward the parked vehicle. That car drove off and the officers followed. They soon stopped the car and sought identification.’ Once this investigatory stop had been made, the police officers received inconsistent information from the two and observed that the appearance of the suspects was consistent with criminal activity. This provided justification to detain them until a second police unit could be ‘dispatched back to the alley and the officers discovered a side of beef, still cold, an adding machine and a calculator, all on one side of the alley. The back door to a meat company had been forced open.’ At this point, ‘Appellant and his companion were arrested.’
“(D) In Baity v. State ([Tex.Cr.App.] 1970) 455 S.W.2d 305 (no dissent), Judge Onion discussed a situation involving a police officer with much experience ‘patrolling in the down town business area on a routine building check.’ The officer ‘observed a man enter the alley . then suddenly turn back out of the alley.’ It being 4:56 a. m., the officer ‘sped up his vehicle and observed the man on Eighth Street “walking fast with his coat pulled up tight . . . walking real fast.” ’ The officer recognized the person as one with a record of arrests for theft and burglary and at this point made an investigatory stop. When the Appellant turned in response to the officer’s call, the officer then observed in plain view a burglary tool and some other object, which proved to be a coin box. The officer then detained Appellant until he could determine that a nearby cafeteria had been burglarized. At this point Appellant was arrested.
“(E) In an opinion by Judge Dally, Hernandez v. State ([Tex.Cr.App.] 1975) 523 S.W.2d 410 (no dissent), it was noted that at 3:00 p. m., two officers on patrol ‘saw an automobile parked in front of a motel; in the open trunk he saw a piece of furniture partly wrapped with a blanket.’ One of the officers further recognized Appellant and his companion as having prior arrests, made a U-turn and started back toward the motel. As they followed the vehicle, the officer noted that the furniture seen earlier was a console television set. They made an investigatory stop of the vehicle, and only then did the officer observe ‘in plain view on the rear floor board an adding machine that looked like the adding machine that he knew had been stolen from a lawyer’s office in a recent burglary.’ The suspects were then placed under arrest.
“(F) In another opinion by Judge Dally, Onofre v. State ([Tex.Cr.App.] 1972) 474 S.W.2d 699 (no dissent), an officer, saying that ‘he was “suspicious of any car behind a business at nighttime; at 2:00 a. m. in the morning” ’, observed two men in a parked car at 2:30 a. m. behind a bar. As he approached, he saw Appellant ‘dump something under the seat or appear to dump something under the seat.’ Ordering the two to stop, he approached the car and observed in plain view cigarette papers and marijuana. He then searched the vehicle, finding more marijuana, and arrested the suspects.
“(G) Judge Jackson, writing for the Court in Anderson v. State ([Tex.Cr.App.] 1974) 504 S.W.2d 507 (no dissent), discussed facts indicating that ‘Appellant was found attempting to enter a parked automobile on the University campus.’ His suspicions aroused, a security officer requested identification. When this request was refused, Appellant was arrested and searched with the ultimate disclosure of a prohibited weapon.
“(H) In Denham v. State ([Tex.Cr.App.] 1968) 428 S.W.2d 814 (no dissent), another opinion by Judge Onion, ‘at approximately 2:00 a. m. . . . Officer Pappas had his suspicions aroused when he observed the Appellant near a coin operated news stand rack.’ When the officer approached to investigate, Appellant got into a nearby vehicle and ‘immediately drove off.’ ‘Pappas followed and having determined that Corbin was speeding and having called for assistance, stopped the vehicle in which Appellant was a passenger.’ On approach of the vehicle, the officer observed in plain view various burglary tools. Placing emphasis upon ‘Appellant’s actions at or near the coin operated news stand and his immediate departure upon the approach of the officer,’ the opinion found sufficient circumstances to justify the officer’s suspicions. “(I) In a somewhat older ease, Ringo v. State (1955) [161 Tex.Cr.R. 93] 275 S.W.2d 121 (no dissent), police officers were patrolling an area with a bad reputation at 1:30 a. m. when they ‘observed an automobile with the lights off, on the wrong side of the street, pulling away from or circling a restaurant and beer joint.’ The officers then followed the car and made an investigatory stop. The occupants of the vehicle were unable to produce identification and gave inconsistent information concerning registration of the automobile. They were arrested and searched.

“It should also be noted that footnote 1 of the Court’s opinion in this case is factually incorrect. The project superintendent spoken of, and called as a defense witness, testified in answer to a question concerning parties, late hours, and the entertainment of - guests in the neighborhood, that ‘I’m sorry, I can’t answer that. I generally leave there in the afternoon and I don’t know what happens.’ ... He further stated in response to a question concerning how frequently the residents used the streets, that ‘that’s a hard question . I don’t know.’ . . . His testimony concerning awareness of whether this was a high crime area consisted simply of T don’t recall. I don’t believe — I was not notified by the police department.’ .

“Of course, the whole question of whether his testimony tends or does not tend to rebut that of the police officer is one to be decided by the fact-finder. Acting in this role, the trial court judge evaluated the evidence and concluded that the officer did everything he could to protect the rights of the subject consistent with protecting the rights of the general public, and consequently, the evidence was admissible and Appellant’s motion was overruled. This placed the burden on Appellant to show this court that these facts, taken in the light most favorable to the State, were not sufficient to support the judge’s findings. A careful evaluation of the above outlined facts in combination with the summarized cases can lead to no other conclusion than that Appellant has not satisfied his burden.”

It appears that Officer Williamson should be commended for good police work and the case should not be reversed. The motion for rehearing should be granted and the judgment should be affirmed.

ONION, P. J., joins in this dissent.

      . Appellant called the project superintendent of the Towngate development as a witness at the motion to suppress hearing. He stated that some of the townhouses were owned by younger couples and that it was not unusual for them to entertain guests until late in the evening. He also stated that he had heard nothing about any crimes being committed in the development prior to this burglary, which tends to rebut the testimony that the area was a “high crime area.”


author: ODOM, Judge.

text:
    George Raymond DYBA, Appellant, v. The STATE of Texas, Appellee.
    No. 52956.
    Court of Criminal Appeals of Texas.
    April 13, 1977.

      Chappell & McFall, Lubbock, for appellant.
    Bill Neal, Dist. Atty., Vernon, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted for felony theft under the former Penal Code. Article 1421, V.A.P.C. His punishment was assessed at three years, probated.

Appellant and two other individuals were convicted for stealing a Linde Air Products Company oxygen cylinder, type “K” series, from a salvage yard owned by Val Blake. The facts and circumstances of this offense are carefully set out in the co-defendants’ cases, Kirkland v. State, Tex.Cr.App., 489 S.W.2d 298; Grego v. State, Tex.Cr.App., 456 S.W.2d 123. The sufficiency of the evidence was upheld in each of those cases.

The only additional fact we need to mention is that Val Blake received his oxygen cylinders from the McGinnis Welding and Supply Company of Wichita Falls. These bottles, including the one introduced at trial, were marked with a McGinnis sticker or label.

Appellant initially asserts that the evidence is insufficient to establish that the oxygen bottle introduced at trial is the same one taken from the complainant. We do not agree.

Blake testified that his supply of oxygen cylinders was “one short” following the night of the offense. Blake discovered this deficiency after he was notified by the police that the appellant had been apprehended and the car he had occupied contained a cylinder similar to those leased and sold by the salvage yard. Blake identified the cylinder as being of the same type utilized in his business. He could not, however, positively identify the exhibit because he did not record the serial numbers on the cylinders he received from McGinnis.

Nevertheless, the oxygen cylinder introduced at trial was found in a car in which appellant was a passenger on the night of the offense when it entered the highway from Blake’s Salvage Yard under suspicious circumstances. See, Grego v. State, supra.

We conclude that the evidence supported the jury’s finding that the bottle introduced into evidence was the same bottle as that taken from Val Blake.

Appellant also contends that the State failed to demonstrate that the cylinder in question was worth $50.00 or more. Article 1421, supra; Wilson v. State, Tex.Cr.App., 536 S.W.2d 375. Blake testified that he sold these cylinders individually for $59.50, plus tax, and gave the purchase money he received to McGinnis. Morris testified that this price had been received for the sale of a cylinder by Blake approximately two months prior to the offense. An invoice establishing this purchase was admitted into evidence.

Appellant insists, however, that the market value was not proved, and, therefore, the value of the cylinder is to be ascertained according to its replacement cost. In Senters v. State, 163 Tex.Cr.R. 423, at 291 S.W.2d 739, at 740, we stated:

“Value as it relates to stolen property is the market value at the time and place of the taking, if the property has such a value, and if not, what it would cost to replace it.” Also see, Wise v. State, Tex.Civ.App., 494 S.W.2d 921; Clark, et al. v. State, 149 Tex.Cr.App. 537, 197 S.W.2d 111.

Market value was demonstrated in this case. Appellant contends, however, that Blake and McGinnis were not authorized to sell the cylinders, and, therefore, the true value should be determined by the replacement cost.

The record reveals that Blake and McGin-nis did sell these cylinders and, by doing this, a market value of $59.50, plus tax, was established. The market price established in this case satisfies the value requirement of Art. 1421, supra.

In his final ground of error attacking the sufficiency of the evidence, appellant contends the State did not prove he was a guilty party in the theft. Appellant was in the back seat of the car with the cylinder when apprehended by the officer, and Kirkland and Grego were in the front seat. Their car was observed from when it left the location of the theft at night with its lights off until it was stopped and the three men were arrested. All gave the explanation that they found the cylinder on the side of the road, which explanation was rejected by the jury. The careful trial judge charged both on the defensive theory of an innocent finding of the property and on the law of circumstantial evidence. We conclude the evidence was sufficient.

Complaint is next made of the admission of the oxygen cylinder into evidence. According to appellant, this item was obtained as the result of an illegal and unreasonable search.

We disposed of this issue in Kirkland v. State, supra, and Grego v. State, supra. The record of the case at bar does not support a departure from the conclusions reached in the companion cases. The search was not illegal and the cylinder was properly admitted into evidence.

The next ground of error maintains that the trial court erred in denying appellant’s motion for mistrial based on the prosecutor’s prejudicial conduct in the presence of the jury during the direct examination of Val Blake. The record reflects:

“Q. What do you use these type bottles for in your business out there, Val?
“A. Well, we have to have the air. We have to have acethylene to heat the iron, and then this blows it on out so we can cut it up in the lengths it’s supposed to be cut.
“Q. In other words, you have got to put the oxygen in this bottle through a cutting torch to cut that iron.
“A. Yes, sir.
“Q. And how thick iron or steel can you cut with a cutting torch like that?
“A. I have cut up to two inches thick.
“Q. You could cut up any kind of heavy material, like a safe or anything like that with it?”

At this point, objection was interposed. The objection was sustained and the jury instructed to disregard the question. The prosecutor also withdrew this question. The motion for mistrial was denied.

The trial court’s action and the prosecutor’s prompt withdrawal of the improper question cured any harm. Pringle v. State, Tex.Cr.App., 511 S.W.2d 35; Chapman v. State, Tex.Cr.App., 503 S.W.2d 237. We overrule this ground of error.

The final argument states that the trial court failed to respond in open court to an inquiry made by the jury during its deliberation on the guilt or innocence of the appellant. The motion for new trial states that the jury gave a message to the deputy sheriff. This message, according to appellant, requested the court to deliver to the jury an invoice that had been introduced as an exhibit at trial. This exhibit apparently was delivered to the jury by the bailiff. Appellant contends that the trial court’s failure to respond to the message constitutes a violation of Art. 36.27, Y.A.C.C.P.

We do not agree. The jury was entitled to take to the jury room all exhibits properly admitted into evidence. Article 36.25, V.A.C.C.P. To accomplish this, they would merely have to request the bailiff to bring them the exhibits they desired to view. The provisions of Art. 36.27, supra, are not applicable to this situation.

The judgment is affirmed.

      . The record establishes that the replacement value of the cylinder was $38.00.

      . Article 36.25, supra, provides: “There shall be furnished to the jury upon its request any exhibits admitted as evidence in the case.”


author: GREEN, Commissioner.

text:
    Cleophas CONAWAY, Appellant, v. The STATE of Texas, Appellee.
    No. 53035.
    Court of Criminal Appeals of Texas.
    April 13, 1977.

      Stuart Kinard, Houston, for appellant.
    Jerry A. Sandel, Dist. Atty., Huntsville, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of murder with malice. See Arts. 1256, 1257(b), V.A.P.C. Punishment was assessed by the court at seven years.

The record reflects that the verdict of guilty was returned by the jury on October 4, 1974. A request having been duly made by appellant that punishment be assessed by the court, a hearing on punishment was postponed pending a pre-sentencing investigation. Thereafter, the pre-sentencing report having been received by the court, the punishment hearing was conducted on September 15, 1975. After evidence was introduced and counsel for the State and for appellant had addressed the court, the following proceedings are reflected:

“BY THE COURT:
“Okay, Cleophas Conaway, your having previously been found guilty of the offense of Murder with Malice by a jury—
“BY THE DEFENDANT:
“ — Yes, sir.
“BY THE COURT:
“ — And after hearing the testimony, I am trying to take into consideration your medical history, and your physical condition, and — but it’s also my duty to take into consideration your — the crime that was committed by you, and it is the sentence of this Court that you be taken by the Sheriff of Walker County, Texas, to someone authorized to receive you at the Texas Department of Corrections, and there you are to serve not less than five nor more than seven years. Do you want to give Notice of Appeal?
“BY MR. MALONE:
“To which we give Notice of Appeal.
“BY THE COURT:
“Okay, that’s all.
“BY THE COURT:
“Excuse me, Mr. Conaway, would you come back just a minute, that’s under the old law—
“BY MR. SANDEL:
“It was September the second, 1973, Judge.
“BY THE COURT:
“Your sentence is amended to read not less than two nor more than seven years rather than five to seven.”

The term “conviction” as used in Art. 40.05, V.A.C.C.P., relating to motions for new trials and Art. 41.01, V.A.C.C.P., relating to motions in arrest of judgment includes both an adjudication of guilt plus an assessment of punishment. Woods v. State, Tex.Cr.App., 532 S.W.2d 608; Faurie v. State, Tex.Cr.App., 528 S.W.2d 263. The judgment following a finding of guilt must contain, among the other elements mentioned in Art. 42.01, V.A.C.C.P., “10. That the defendant be punished as has been determined.” The sentence must be based on a valid judgment, for without a valid judgment the court is not authorized to sentence the defendant. Morgan v. State, Tex.Cr.App., 515 S.W.2d 278; Scott v. State, Tex.Cr.App., 461 S.W.2d 619.

Although the “declaration of the court entered of record” (See Art. 42.01, V.A.C.C.P.) purporting to be the judgment in the case and bearing date of October 4, 1974, reflects the punishment as having been assessed at seven years, the proceedings had at the punishment hearing on September 15, 1975, establish that no punishment was “determined” prior to the court’s pronouncement of sentence on that date. As shown in the above quotation from those proceedings, the record affirmatively establishes that no punishment had been assessed, and no valid judgment entered, prior to the oral sentencing of appellant on September 15, 1975. Instead of making the pronouncement of the punishment of the appellant whose guilt had been adjudged by the jury and then proceeding as provided in Art. 42.03, Sec. I, V.A.C.C.P., the court, at the close of argument of counsel, without having announced any determination of punishment, immediately sentenced appellant to serve “not less than five nor more than seven years” and asked whether he wished to give notice of appeal. As stated in Scott v. State, supra, “A ‘judgment’ (Article 42.01, V.A.C.C.P.) and a ‘sentence’ (Article 42.02, V.A.C.C.P.) are not the same thing but distinct and independent.” Punishment of appellant, a necessary element of the judgment, was first determined and announced during the sentencing of appellant, and no valid judgment was ever announced.

Furthermore, even if a valid judgment had been properly rendered, the record fails to reflect that appellant waived time in which to file a motion for new trial or in arrest of judgment. See Art. 42.03, Sec. 1, V.A.C.C.P.; Woods v. State, supra; Faurie v. State, supra. In fact, the record affirmatively reflects no waiver, as shown in the quotation from the sentencing proceedings. The written sentence which appears in the transcript is dated September 15, 1975, the date of the punishment hearing. It is silent on the matter of waiver of the ten day waiting time for filing a motion for new trial (Art. 40.05, V.A.C.C.P.) or in arrest of judgment (Art. 41.01, V.A.C.C.P.). A sentence imposed on the same day that punishment is assessed without a waiver of the ten day waiting period provided in Art. 42.03, V.A.C.C.P., being affirmatively shown is premature and invalid, and fails to give this Court jurisdiction to entertain the appeal. Woods v. State, supra; Faurie v. State, supra.

The appeal is dismissed. Upon receipt of the mandate from this Court, the trial court is directed to conduct a hearing with appellant and counsel present, and to assess punishment and render judgment, and next proceed in compliance with the provisions of Arts. 42.03 and 40.09, V.A.C.C.P., and as stated in the concluding paragraphs in Woods v. State, supra.

Opinion approved by the Court.

      . See the opinion of Justice Stevens in Gardner v. Florida, U.S.Sup.Ct., March 23, 1977 (See The Criminal Law Reporter, Vol. 20, page 24), in which a plurality of Justices Stevens, Stewart and Powell conclude that due process is denied the defendant where information contained in a pre-sentence report, supplied by witnesses whom the defendant could not confront or cross-examine, is withheld and denied the defendant.

      . Section 1. “If a new trial is not granted, nor judgment arrested in felony and misdemeanor cases, the sentence shall be pronounced in the presence of the defendant except when his presence is not required by Article 42.02 at any time after the expiration of the time allowed for making the motion for a new trial or the motion in arrest of judgment.”
      The exception in Article 42.02 applies only in misdemeanor cases where the maximum possible punishment is by fine only.

      . The minimum was later reduced to two years.


author: DALLY, Commissioner. ROBERTS and PHILLIPS, JJ.,

text:
    Charles WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 53104.
    Court of Criminal Appeals of Texas.
    April 13, 1977.

      E. Neil Lane, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Jack D. Bodiford, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of robbery by firearm under the former penal code; the punishment is imprisonment for 25 years.

Appellant does not challenge the sufficiency of the evidence; however, a recitation of the facts is necessary for our discussion of several of his grounds of error.

The complaining witness was working as a manager of a Spec’s Liquor Store in Houston on October 24, 1973. On that day she saw the appellant on the sidewalk by the liquor store. The complainant recognized the appellant as the same man who had robbed her at the store approximately two months before. She ran to the door, pulled it closed, and told the appellant, “we are closed.” When the complainant ran back in the store to get the keys to lock the door the appellant entered the store. The appellant was armed with a pistol and ordered the complainant to give him all the money. After appellant obtained the money he made the complainant lock the doors to the store. He ordered her to go behind a partition to the storeroom and remove her clothes. Appellant then raped the complainant. Before he left, the appellant told the complainant that he knew where she lived and that if she called the police he would kill her and her baby.

The appellant testified in his own behalf that he had never robbed or raped the complainant. He stated that he lived with the complainant in August and September of 1973, and had the intention of marrying her. He said that he had a “relationship” with the complainant during that time, and that he and the complainant had gone out together. Appellant stated that he was in Louisiana on the day of the offense.

In rebuttal, the complainant testified that she never dated the appellant or lived with him. She stated that the only time she saw the appellant after the robbery in question was six days later on October 30, 1973. On October 30th the complainant was in her apartment bathroom when the appellant came into her bathroom with two butcher knives. The appellant said, “Well, why did you call the police? I told you I was going to kill you.” The appellant then took his pants off and raped the complainant on her bed. As the appellant was putting his pants back on the complainant ran out the back door to a friend’s apartment.

The appellant was represented by a court-appointed attorney at trial; however, he filed six pro se motions on his own behalf plus a pro se brief. In one pro se motion the appellant requested permission to “pick my own jury” and cross-examine the complaining witness. The trial court granted both requests. The appellant conducted the cross and direct examination of three witnesses and his attorney questioned the other witnesses. The appellant also made closing arguments to the jury at the guilt-innocence phase of the trial.

Appellant contends the court erred in failing to grant a mistrial after the complaining witness alluded to a prior extraneous offense allegedly committed by him. The appellant complains of the following testimony that occurred during the examination of the complaining witness:

“Q. (By Prosecutor): Except for the occasion when he came into your store once previously, before October the 24th of 1973, had you ever seen the man before?
“A. Yes, sir, I had.
“Q. Where?
“A. He had robbed me once before.
“Q. Well, that’s not what I wanted. “Okay. He has robbed you once before then? Is that true?
“A. Yes, sir.
“Q. And when did that happen?
“A. I don’t remember the exact date.
“Q. And is that why you recognized him when he came back to rob you the second time?
“A. That is why.
“THE DEFENDANT: Objection, Judge, Your Honor.
“THE COURT: Sustained.”

Testimony concerning this first robbery was brought out numerous other times before the jury without objection. The appellant himself questioned the complainant extensively concerning the first robbery. The court’s charge instructed the jury not to consider testimony regarding other offenses that appellant may have committed unless it found beyond a reasonable doubt that the appellant committed the offenses and then only for the purpose of showing a common plan or systematic course of action, or in determining the identity, intent, motive, or malice of the defendant.

Appellant’s only objection to this testimony was a general objection which does not preserve error for review. Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974). Furthermore, appellant’s objection was untimely and testimony concerning this first robbery was elicited by the appellant himself on cross-examination of the complainant. Randolph v. State, 502 S.W.2d 138 (Tex.Cr.App.1973). Appellant’s objection was sustained and no further relief was requested; nothing is presented for review. Fuller v. State, 501 S.W.2d 112 (Tex.Cr.App.1973); Weedon v. State, 501 S.W.2d 336 (Tex.Cr.App.1973).

Appellant’s counsel on appeal argues in this ground of error that this Court should take into consideration the appellant’s ignorance, as a layman, of the rules of evidence and procedure concerning preserving error and the rules excluding extraneous offenses. Appellate counsel recognizes that the appellant requested and was granted the right to conduct his own defense, but urges that permitting the appellant to conduct his own defense denied him a fair and impartial trial.

The United States Supreme Court has decided that an accused has the absolute right under the United States Constitution to defend himself without the benefit of counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In footnote 46 of Faretta, the Court said:

“The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law. Thus, whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ”

The rules of evidence, procedure, and substantive law will be applied the same to all parties in a criminal trial whether that party is represented by counsel or acting pro se. Cf. Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976). Grounds of error number one and three are overruled.

Appellant next contends the court “erred in refusing to grant a mistrial after the Assistant District Attorney repeatedly tried to bolster his own witness’ identification of the appellant.” Appellant does not point out in the record where the alleged error occurred. He does not even indicate what witness he is referring to. This ground of error does not comply with the requirements of Article 40.09, Section 9, V.A.C.C.P., and presents nothing for review. Peterson v. State, 508 S.W.2d 844 (Tex.Cr.App.1974).

The appellant contends the court erred in admitting State’s Exhibit No. 5 into evidence because the evidence was hearsay and because the proper predicate was not proved for its admission as a business record under Article 3737e, V.A.C.S. State’s Exhibit No. 5 is a two page hospital record from Ben Taub Hospital. The records were apparently offered to corroborate the complainant’s testimony that the appellant raped her during the course of the robbery in question.

George Steckly, the custodian of medical records at Ben Taub Hospital, testified that the records were made in the regular course of business and that they were made at or about the time that the events occurred that are reflected in the records. However, Steckly did not testify that it was the regular course of business for an employee or representative of the hospital with personal knowledge of such event to record the information or event in the medical records.

Article 3737e, V.A.C.S. applies to criminal cases and is to be liberally construed; however, this Court has not dispensed with the requirements that a proper predicate be laid in order for this exception to the hearsay rule to apply. Dalton v. State, 516 S.W.2d 937 (Tex.Cr.App.1974), and cases cited therein. The requirement that the person making the entry have personal knowledge of the fact or event recorded therein is a necessary predicate. Article 3737e, Section 1(b), supra.

Appellant did not object to State’s Exhibit No. 5 in the trial court on the ground that the proper predicate had not been laid. Ordinarily error such as this may be cured or corrected if the issue is promptly and specifically brought to the attention of the trial judge. Since the objection made in the trial court was not the same as that urged on appeal, appellant has not properly preserved this complaint for review. See Nelson v. State, 507 S.W.2d 565 (Tex.Cr.App.1974); Elizaldi v. State, 519 S.W.2d 881 (Tex.Cr.App.1975).

The medical records were hearsay and were not shown to be properly admissible under the business records exception to the hearsay rule; however, the admission of the records does not constitute reversible error. The hospital records were merely corroborative of the complaining witness’ testimony that she was raped during the course of the robbery for which appellant was convicted. Proof of the rape was not necessary in order to prove the appellant committed the robbery. Moreover, the complainant testified that appellant raped her and that she was examined at Ben Taub Hospital. Where evidence which would otherwise be inadmissible is proven by some other testimony which is not objected to, no reversible error is shown. Mutscher v. State, 514 S.W.2d 905 (Tex.Cr.App.1974); Prine v. State, 509 S.W.2d 617 (Tex.Cr.App.1974).

Appellant contends the court erred in failing to grant a mistrial after the prosecutor made a side bar remark during cross-examination of the appellant. The remark appellant complains of is as follows:

“Q. You are saying you never went the night together?
“A. No, but we have had a relationship.
“Q. You did what?
“A. We have had a relationship together. ■
“Q. All right. I can agree with that, at pistol point.
“(DEFENSE ATTORNEY): Objection, if the Court please. This is a side bar remark and we object to it. We ask that counsel be asked to restrain himself and not to make these side bar remarks. We ask that the jury be instructed to disregard these remarks.
“THE COURT: All right. Ladies and Gentlemen, you will disregard the last remark of counsel.”

The prosecutor’s side bar remark was not so prejudicial that the trial court’s instruction could not cure it. The remark should not have been made, but it does not constitute reversible error. Phillips v. State, 511 S.W.2d 22 (Tex.Cr.App.1974); Smith v. State, 457 S.W.2d 58 (Tex.Cr.App.1970).

Appellant contends the court erred in failing to declare a mistrial after the complainant testified in rebuttal that appellant had come to her house six days after robbery and raped her at knife point. The appellant testified that he was in Louisiana at the time the robbery occurred. He also testified that he and the complainant had lived together and had a relationship.” He said that he was the complainant’s “man.”

The complainant testified in rebuttal that she never voluntarily had a relationship with the appellant and never dated him. The complainant testified that on October 30, 1973, she was at home in her bathroom when the appellant appeared behind her with two butcher knives. The appellant said, “Well, why did you call the police? I told you I was going to kill you.” The appellant then raped her. While the appellant was putting on his pants the complainant managed to escape out the back door. Testimony concerning the appellant’s retaliation and rape of the complainant because she called the police was admitted without any objection. This ground of error presents nothing for review. Carter v. State, 506 S.W.2d 876 (Tex.Cr.App.1974); Johnson v. State, 504 S.W.2d 493 (Tex.Cr. App.1974); Randolph v. State, 502 S.W.2d 138 (Tex.Cr.App.1973).

In his next ground' of error the appellant appears to be arguing that the court erred in failing to determine whether he was competent to stand trial. Immediately pri- or to sentencing the appellant filed a pro se motion charging his attorney with “misrepresenting his case.” He alleged that he requested his attorney to contact a psychiatrist about his “mental problem.” He alleged that he had been in the East Louisiana State Hospital in 1972. At the sentencing hearing the appellant gave the judge a letter. He asked the judge to take back the twenty-five year sentence and “give me the electric chair, because I am going to kill myself at midnight tonight.” He also said to give his body to his mother and if she did not want it, to tell the police to take his body to the waterfront and push it in the water. In addition, the appellant requested and was granted permission to review the record of his trial. The appellant burned the entire record while in a private cell at the Harris County jail.

It is unclear from appellant’s brief exactly what error he claims was committed by the trial court. Apparently, his contention is that the court should have conducted a hearing to determine appellant’s competency to stand trial because of appellant’s strange behavior.

The appellant filed approximately six pro se motions. He conducted the voir dire examination of the jury panel. He conducted the direct and cross-examination of several witnesses. He presented closing argument to the jury. In addition, appellant has filed a lengthy pro se brief subsequent to the events that occurred at sentencing. We have examined all of appellant’s pro se motions and brief. We have also reviewed the statement of facts where appellant represented himself. The record overwhelmingly reflects that appellant had sufficient ability to consult with his lawyer with a reasonable degree of rational understanding and he had a rational as well as a factual understanding of the proceedings against him. The record is devoid of any evidence raising doubt as to appellant’s competency to stand trial. No error is shown. Brown v. State, 505 S.W.2d 850 (Tex.Cr.App.1974); Bonner v. State, 520 S.W.2d 901 (Tex.Cr.App.1975).

Appellant in his pro se brief asserts that he was denied effective assistance of counsel. He alleges that his attorney neglected to interview him or to investigate his case prior to trial. He asserts that his attorney did not file any motions on his behalf and that his attorney did not object to improper questions and jury argument during trial.

The appellant was indicted on March 15, 1974, and was originally represented by a court-appointed attorney. On September 16, 1974, the appellant filed a pro se motion to dismiss his attorney. This motion was granted and the court appointed another attorney to represent the appellant on September 20,1974. On February 15, 1975, the appellant filed another pro se motion to dismiss this attorney and requested that the court appoint a female attorney to represent him. Prior to trial the appellant filed an instrument entitled “Motion for Defendant Challenged District Attorney.” In that motion the appellant stated that he wanted to cross-examine the complaining witness because he knew what questions to ask her. He also requested permission to question the jury panel.

The appellant’s trial began on April 7, 1975. The appellant acting pro se conducted the voir dire examination of the jury panel. He also conducted the cross-examination of the complaining witness and one of the police officers. He conducted the direct examination of one of his own witnesses and presented final argument in his own behalf at the guilt-innocence phase of the trial. After judgment was pronounced and prior to sentencing, the appellant filed a pro se motion styled “Motion to Charge Attorney with misrepresentation of case in his client’s behalf.” He alleged that he requested his attorney to arrange for a psychiatric examination. He also alleged that the complaining witness had a child by him and that he asked his attorney to arrange for a blood type test so he could prove his story.

The constitutional right to counsel, whether appointed or retained, does not mean errorless counsel and the competency or adequacy of his representation is not to be judged by hindsight. The adequacy of an attorney’s service must be gauged by the totality of the representation. An attorney must appraise a case and do the best he can with the facts, and the fact that other counsel might have tried the case differently does not show inadequate representation. In determining this issue the test to be applied is whether counsel provided “reasonably effective assistance.” Ex parte Prior, 540 S.W.2d 723 (Tex.Cr.App.1976); Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974).

There was a total of eight witnesses excluding the appellant. The appellant acting pro se conducted the examination of three of the witnesses, and more importantly, he questioned the complaining witness. In the peculiar circumstances of this case it is almost impossible to separate appellant’s actions from that of his attorney. Testimony that would normally have been inadmissible became admissible because of the manner in which appellant questioned the witnesses and because of his own testimony. Appellant’s argument to the jury was often outside the record and allowed the State to argue matters which would have ordinarily been improper.

When an accused elects to represent himself he cannot complain that the quality of his own defense amounted to a denial of effective assistance of counsel. Faretta v. California, supra. We have tried to distinguish the attorney’s representation from that of appellant himself. The fact that the attorney did not file any pretrial motions is not controlling. Appellant’s allegations concerning the attorney failing to interview him and conduct pretrial investigation are simply not supported by the record. Appellant asserts that his attorney did not object to improper questions and jury argument, but fails to point out in the record where these alleged errors occurred. We have examined the entire record; testimony concerning the first robbery and second rape would ordinarily be inadmissible. However, both of these extraneous offenses became admissible or their inadmissibility waived because of appellant’s own conduct. An attorney can only work with the facts presented to him and he is not expected to win a hopeless case. Williams v. State, 513 S.W.2d 54 (Tex.Cr.App.1974). From the totality of the representation we hold that appellant’s attorney rendered reasonably effective assistance. It is difficult to protect a defendant from his own folly of self-representation.

We have examined the other grounds of error in appellant’s pro se brief and find that they are without merit and accordingly are overruled.

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS and PHILLIPS, JJ.,

concur in the result, but dissent to the portion of the opinion which says that the objection le-velled to the medical records did not preserve the error in their admission into evidence.