author: TOM G. DAVIS, Judge.

text:
    STATE of Texas ex rel. Carol VANCE, District Attorney of Harris County, Petitioner, v. Honorable Thomas H. ROUTT, Presiding Judge, 208th District Court of Harris County, Texas, Respondent.
    No. 58929.
    Court of Criminal Appeals of Texas, Panel 2.
    Oct. 11, 1978.

      Carol S. Vance, Dist. Atty., Michael C. Kuhn and Frank Harmon, Houston, for Vance.
    Terry G. Collins, Houston, for Routt.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

This is an original action brought by Carol Vance, District Attorney of Harris County, seeking a writ of mandamus directing the Honorable Thomas H. Routt, Judge of the 208th Judicial District Court of Harris County, to vacate the final forfeiture of an appearance bond entered in Cause No. 25,-288.

The record reflects that on February 17, 1975, Paul Clifton Green was charged by indictment with the offense of murder in Cause Number 224302 in the 208th Judicial District Court of Harris County. Green filed a pauper’s oath and Terry G. Collins was appointed by the court to represent Green on April 24,1975. Bond, although originally $20,000.00, was reduced to $10,000.00 on May 5,1975. On December 13, 1975, Green was released from custody on a bond wherein his attorney Collins was surety.

On January 21, 1976, Green appeared for trial with his appointed counsel. After the selection of the jury, a mistrial was declared. The case again came to trial on August 23, 1976. On September 1, 1976, both sides rested and the court recessed until the next morning. Green failed to appear the next morning and after the bailiff called Green’s name at the courthouse door, the court entered a judgment nisi forfeiting the $10,000.00 bond. Green still remains at large.

The trial court on June 5, 1978, rendered a final judgment against Collins as surety and Green as principal jointly and severally in the amount of $6,666.66, rather than the $10,000.00 specified in the bond. The judgment as entered was immediately paid in full.

The petitioner contends that on the basis of the facts recited in the judgment of final forfeiture and under the applicable law the respondent had no authority to enter judgment for any amount other than $10,000.00. Petitioner seeks a writ of mandamus directing the respondent to vacate the judgment entered on June 5, 1978, and enter judgment in the amount of $10,000.00.

Prior to January 1, 1978, the effective date of the recent amendment to Art. 5, Sec. 5, of the Constitution of Texas, only the Supreme Court of Texas had general power to issue writs of mandamus. See Arts. 1733 and 1734, V.A.C.S. See also Fariss v. Tipps, 463 S.W.2d 176 (Tex.1971); Pope v. Ferguson, 445 S.W.2d 950 (Tex. 1969), cert. denied 397 U.S. 997, 90 S.Ct. 1138, 25 L.Ed.2d 405 (1970); Wilson v. Bowman, 381 S.W.2d 320 (Tex.1964). The jurisdiction of the Court of Criminal Appeals to issue writs of mandamus was previously limited by Art. 5, Sec. 5, of the Texas Constitution, which provided that this Court and the judges thereof “shall have the power to issue the writ of habeas corpus, and under such regulations as may be prescribed by law, issue such writs [of mandamus] as may be necessary to enforce its own jurisdiction.” Under this constitutional provision, this Court could only issue writs of mandamus to enforce its appellate jurisdiction and did not have the power to issue writs of mandamus generally. Millikin v. Jeffrey, 117 Tex. 134, 299 S.W. 393 (1927); Ex parte Boehme, 158 Tex.Cr.R. 597, 259 S.W.2d 201 (1953); Ex parte Rubison, 170 Tex.Cr.R. 314, 340 S.W.2d 815 (1960); Eaves v. Landis, 96 Tex.Cr.R. 555, 258 S.W. 1056 (1924); Bradley v. Miller, 458 S.W.2d 673 (Tex.Cr.App.1970); State ex rel. Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr. App.1973); Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1974); Ex parte Norvell, 528 S.W.2d 129 (Tex.Cr.App.1976); Bretz v. State, 508 S.W.2d 97 (Tex.Cr.App.1974); Walker v. State, 537 S.W.2d 36 (Tex.Cr. App.1976).

Effective January 1, 1978, Art. 5, Sec. 5, of the Constitution was amended to read as follows:

“Subject to such regulations as may be prescribed by law, regarding criminal matters, the Court of Criminal Appeals and the judges thereof shall have the power to issue the writs of habeas corpus, mandamus, procedendo, prohibition, cer-tiorari, and other such writs as may be necessary to protect its own jurisdiction or enforce its judgments.” [Emphasis added.]

The purpose of this amendment was to confer upon this Court additional powers to grant extraordinary writs in cases “regarding criminal matters.” Thomas v. Stevenson, 561 S.W.2d 845 (Tex.Cr.App.1978).

Prior to the adoption of the amendment, this Court had mandamus and prohibition powers under the Constitution to enforce its own jurisdiction only. This authority was also inherent at common law. State ex rel. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892 (1961); State ex rel. Vance v. Hatten, 508 S.W.2d 625 (Tex.Cr.App.1974); Ex parte Norvell, supra; Smith v. Blackwell, supra.

In Thomas v. Stevenson, supra, this Court stated with respect to the constitutional amendment:

“We therefore conclude that the additional provisions in the amendment gave this Court authority to issue extraordinary writs, including the power to issue writs of mandamus to compel a speedy trial in a criminal case.”

The initial question that must be addressed with respect to petitioner’s application is whether this Court has jurisdiction to issue a writ of mandamus to compel a district judge to set aside a final order of forfeiture in a bond case where the petitioner contends that the trial court had no authority to enter such a judgment.

Prior decisions of this Court and the Supreme Court leave no doubt that a bond forfeiture proceeding is “criminal in nature.” Glenn v. State, 155 Tex.Cr.R. 498, 236 S.W.2d 809 (1951); Gay v. State, 20 Tex. 504 (1857); Jeter v. State, 86 Tex. 555, 26 S.W. 49 (1894); Aher v. Warden, 49 Tex. 377 (1878); Hodges v. State, 73 Tex.Cr.R. 638, 165 S.W. 607 (1913). This satisfies the requirement of Art. 5, Sec. 5, supra, limiting our jurisdiction to cases “regarding criminal matters.”

While the following cases of State ex rel. Smith v. Blackwell, infra, and Pettit v. Thurmond, infra, predate the recent amendment to Art. 5, Sec. 5, supra, granting the Court of Criminal Appeals general mandamus power, we find them instructive in determining whether the relief prayed for is a proper subject for mandamus.

In the case of State ex rel. Smith v. Blackwell, supra, this Court issued a writ of prohibition wherein it held Sec. 4.06 of the Texas Controlled Substances Act, Art. 4476-15, V.A.C.S., unconstitutional because it violated Art. 4, Sec. 11, of the Constitution. Jurisdiction of this Court was invoked under Art. 5, See. 5, as it then read because the conviction of the inmate that respondent sought to resentence had been affirmed by this Court. The Court therefore had jurisdiction to issue the writ “to enforce its own jurisdiction.”

In State ex rel. Pettit v. Thurmond, 516 S.W .2d 119 (Tex.1974), a district attorney sought a writ of mandamus from the Supreme Court of Texas directing a district judge to vacate an order sentencing two defendants under a statute which became effective after their convictions and to impose sentences under the statutes governing their offenses at the time of their trial. Citing State ex rel. Smith v. Blackwell, supra, the Supreme Court held the district judge “had no discretion” but to assess punishment under the effective law at the time of conviction. The relief sought was granted.

Bond forfeitures are governed by Chapter 22 of the Code of Criminal Procedure. Article 22.16, V.A.C.C.P., provides:

“If, before final judgment is entered against the bail, the principal appears or is arrested and lodged in jail of the proper county, the court may at its discretion, remit the whole or part of the sum specified in the bond.”

This provision of the Code of Criminal Procedure authorizes a remittitur at the discretion of the trial judge only if the principal has appeared or has been arrested and lodged in jail before the final judgment is entered. The judgment entered by the respondent recites that:

“The principal, Paul C. Green, remains at large, has not been arrested or lodged in jail, and continues to fail to appear in court . . . . ” '
Article 22.13, V.A.C.C.P., provides:
“The following causes, and no other, will exonerate the defendant and his sureties, if any, from liability upon the forfeiture taken:
1. That the bond is, for any cause, not a valid and binding undertaking in law. If it be valid and binding as to the principal, and one or more of his sureties, if any, they shall not be exonerated from liability because of its being invalid and not binding as to another surety or sureties, if any. If it be invalid and not binding as to the principal, each of the sureties, if any, shall be exonerated from liability. If it be valid and binding as to the principal, but not so as to the sureties, if any, the principal shall not be exonerated, but the sureties, if any, shall be.
2. The death of the principal before the forfeiture was taken.
3. The sickness of the principal or some uncontrollable circumstance which prevented his appearance at court, and it must, in every such case, be shown that his failure to appear arose from no fault on his part. The causes mentioned in this subdivision shall not be deemed sufficient to exonerate the principal and his sureties, if any, unless such principal appear before final judgment on the bond to answer the accusation against him, or show sufficient cause for not so appearing.
4. Failure to present an indictment or information at the first term of the court which may be held after the principal has been admitted to bail, in case where the party was bound over before indictment or information, and the prosecution has not been continued by order of the court.”

The trial court’s judgment in the instant case expressly notes the absence of causes “1,” “2” and “3.” From the record before us, it can also be determined that the bond was made after indictment; therefore cause “4” in this article likewise does not apply. It is thus clear that the respondent had no authority under these statutes to remit or exonerate any portion of the bond in question.

Mandamus is only available where no other adequate remedy at law is available.

Article 44.42, V.A.C.C.P., provides in pertinent part:

“An appeal may be taken by the defendant from every final judgment rendered upon a personal bond, bail bond, or bond taken for the prevention or suppression of offenses, . [Emphasis added.]

Article 44.43, V.A.C.C.P., likewise provides:

“The defendant may also have any such judgment as is mentioned in the preceding article, and which may have been rendered in courts other than the justice or corporation courts, reviewed upon writ of error.” [Emphasis added.]

It is clear from these provisions that only the defendant has the right of appeal or review by writ of error from a final bond forfeiture. Art. 5, Sec. 26, of the Texas Constitution and Art. 44.01, V.A.C.C.P., expressly provide that the State may not appeal in criminal actions. The decisions of this Court and the Supreme Court make it clear that bond forfeiture proceedings are “criminal in nature.” Glenn v. State, supra; Gay v. State, supra; Jeter v. State, supra. There is also authority for the proposition that the State may not move for a new trial after the final bond forfeiture and that such an attempt is a nullity. Perry v. State, 14 Tex.App. 166 (1883); Robertson v. State, 14 Tex.App. 211 (1883). It is clear from these authorities that the State has no other adequate remedy to challenge the actions of the trial court.

Mandamus will not issue to compel a discretionary as distinguished from a ministerial act. The writ may issue in some instances to compel the entry of a judgment, but it will not be issued to compel the entry of a specified type of judgment. See 37 Tex.Jur.2d, Mandamus, Secs. 47 and 48. There is, however, an exception to this general rule. A Court “. may be directed by mandamus to enter a particular judgment if that judgment is the only proper one that can be rendered in the circumstances and there is no other adequate remedy.” 37 Tex.Jur.2d, Mandamus, Sec. 48; Thomason v. Seale, 122 Tex. 160, 53 S.W.2d 764; Carnes v. Cunningham, Tex. Civ.App., 350 S.W.2d 59.

For the petitioner to prevail in this application for writ of mandamus he must demonstrate both that there was only one proper judgment that could be entered and that the entry of the judgment based upon the facts found by the court was in essence a mere ministerial act. See e. g., State ex rel. Pettit v. Thurmond, supra.

Article 22.02, V.A.C.C.P., provides:

“ . . judgment shall be entered that the State of Texas recover of the defendant the amount of money in which he is bound and of the sureties, if any, the amount of money in which they are respectively bound, . . . ”

This provision mandates the entry of judgment in the full amount of the bond except where exoneration is proper under Art. 22.-13, supra, or remittitur is discretionary under Art. 22.16, supra. On the basis of the facts and the applicable law, the entry of judgment in this case was strictly ministerial in nature. There was only one judgment authorized to be entered. Under these circumstances, mandamus is available to correct the respondent’s failure to follow the dictates of the foregoing statutes. Respondent had no discretion but to enter judgment against Green and Collins for the full face amount of the bond.

A writ of mandamus will issue directing the respondent to vacate the judgment heretofore entered on June 5, 1978, under Cause Number 25,288, and to enter judgment for the full amount of the bond and costs in accordance with this opinion.

It is so ordered.

      . The record before us is meager but there does not appear from the briefs to be any dispute as to the material facts. Since this cause relates to a bond forfeiture proceeding, we are governed by the Rules of Civil Procedure. See Art. 44.44, V.A.C.C.P.; Smith v. State, 561 S.W.2d 501 (Tex.Cr.App.1978) (case 1); Smith v. State, 561 S.W.2d 501 (Tex.Cr.App.1978) (case 2); Smith v. State, 561 S.W.2d 502 (Tex.Cr.App. 1978).

      . Marihuana resentencing provision held to violate separation of powers as it invaded Governor’s clemency powers.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Clifton F. FERGUSON, Appellant, v. The STATE of Texas, Appellee.
    No. 58985.
    Court of Criminal Appeals of Texas, Panel 1.
    Oct. 11, 1978.

      Jim Claunch, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, George B. Mackey and Tom Bellows, Asst. Dist. Attys., Fort Worth, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for gambling promotion. V.T.C.A., Penal Code sec. 47.03. Punishment was assessed at three years and appellant was placed on probation.

Appellant entered a plea of guilty on February 16,1978, after Art. 44.02, V.A. C.C.P., was amended. This appeal is therefore governed by that article. Cf. Ex parte

Abahosh, 561 S.W.2d 202 (Tex.Cr.App.). That article provides:

“A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his.appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.”

The record affirmatively reflects that the punishment was assessed at the amount recommended by the prosecutor and agreed to by appellant personally and by his attorney. Cf. Decker v. State, 570 S.W.2d 948 (No. 58587, 3QP2, 9/20/78). The record also reflects, however, that the trial court gave permission to appellant to bring this appeal. We therefore have jurisdiction of the case.

In several grounds of error appellant challenges the trial court’s ruling on his motion to suppress evidence seized pursuant to a search warrant. We conclude, however, that nothing is presented for review.

After the trial court overruled his motion to suppress, appellant waived his right to trial by jury and entered a plea of guilty. After his plea was accepted by the trial court, appellant took the witness stand and judicially confessed that he committed the offense as alleged against him in the indictment. No evidence seized pursuant to the challenged search warrant was introduced, and no such evidence was used to support appellant’s conviction. Where no evidence obtained as a result of a search is introduced in evidence, no error with respect to such search is presented for review. Stiggers v. State, 506 S.W.2d 609 (Tex.Cr. App.). Furthermore, a judicial confession is alone sufficient to sustain a conviction on a guilty plea under Art. 1.15, V.A.C.C.P. Cevalies v. State, 513 S.W.2d 865 (Tex.Cr. App.).

It appears from the proceedings in the trial court that appellant contemplated review in this court pursuant to that portion of Art. 44.02, supra, that speaks of an appeal “on those matters which have been raised by written motion filed prior to trial.” In Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.), the Court wrote:

“Appellant contends that the court was in error in admitting evidence obtained as the result of an illegal search and seizure. Where a plea of guilty is voluntarily and understanding^ made, all non-jurisdictional defects including claimed deprivation of federal due process are waived. Soto v. State, Tex.Cr.App., 456 S.W.2d 389; Fierro v. State, Tex.Cr.App., 437 S.W.2d 833.” See also, Cantu v. State, 546 S.W.2d 621 (Tex.Cr.App.).

The legislature appears to have abrogated this rule regarding the effect of a guilty plea in cases of plea bargains before' the court, as is its prerogative. Such a procedure may be expected to conserve judicial resources by encouraging guilty pleas in cases where the only contested issue between the parties is some matter such as the lawfulness of a search, voluntariness of a confession, competency to stand trial, sufficiency of the indictment, or other matter that may be raised by written motion filed prior to trial. To this extent the amendment of Article 44.02 supersedes the prior case law as stated in Helms, supra.

This new practice, however, does not change the rule in Stiggers v. State, supra, relied on here. If the guilty plea is supported by evidence (see Art. 1.15, supra) independently of the matter contested in the pre-trial motion, then any erroneous ruling on that motion does not vitiate the conviction. Such is the case here. The ground of error is overruled.

The judgment is affirmed.


text:
    Ex parte Cruz TIJERINA, Jr.
    No. 59081.
    Court of Criminal Appeals of Texas, Panel 2.
    Oct. 11, 1978.

      Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from an order entered after a habeas corpus hearing in the 137th District Court of Lubbock County denying the relief requested. Appellant was being detained pending the State’s motion to revoke his probation.

Appellant received a ten-year probated sentence on August 15,1977, upon a conviction for rape. The State’s motion to revoke alleged that he committed another rape at a date within the probationary period. A motion for a hearing within 20 days was filed by appellant on May 16, 1978. Both the writ of habeas corpus and the State’s motion to revoke were heard on June 7, 1978, two days beyond the 20 day period. The trial court denied habeas relief and entered an order finding that appellant had violated the terms of his probation.

Appellant contends the State’s motion to revoke should have been dismissed because of the court’s failure to hold a hearing within 20 days as required by Art. 42.12, Sec. 8(a), V.A.C.C.P.

The circumstances surrounding the holding of the hearing 22 days after appellant’s motion were detailed for the record by the court at the hearing. The court had a conference with the State’s attorney and defense counsel eight days after the appellant’s motion for a hearing was filed. It was at this meeting that the judge set the date for the revocation hearing. At this time, it was noted that the prosecutrix was a partially blind deaf mute and that other witnesses had one or more handicaps. Further, interpreters were necessary for the appellant, who is both deaf and mute.

The court and counsel were aware that the date chosen for the hearing was two days beyond the twenty day period specified by statute. The court, declining to set an earlier date, stated:

“. . . the Court feels ... [it would not be required] to do a fictitious or nonsensical thing by setting a hearing within the twenty day period knowing full well that the hearing could not be completed and all the necessary interpreters be available and then, for good cause shown by such, state that the case would be continued two days later in order that all of the interpreters and parties may be available to have the hearing.”

The court found that six interpreters were required for the hearing. This was in order that the appellant, who is deaf and mute, could assist his counsel and be aware of the proceedings. Further, these interpreters were necessary so that the prosecutrix, who is partially blind, deaf and mute, and other witnesses who were deaf or deaf and mute, could testify in this cause. Three of the interpreters were summoned from Austin, two from Fort Worth, and one from Lubbock. In addition, three witnesses who testified at the hearing were also from Austin.

The evidence at the hearing reflected that, as a condition of his probation, the appellant was to enroll at an accredited institution for the deaf. He did enter such an institution in Austin. It was alleged that while at this institution the appellant raped the prosecutrix, who also lived there. The judge found the allegation to be supported by the evidence and revoked the probation.

The appellant’s contention that the revocation petition should have been dismissed is founded on Art. 42.12, Sec. 8(a), supra, which provides:

“. . .If the defendant has not been released on bail, on motion of the defendant the court shall cause the defendant to be brought before it for a hearing within 20 days of filing said motion, and after a hearing without a jury, may either continue, modify, or revoke the probation. The court may continue the hearing for good cause shown by either the defendant or the state.”

In Ex parte Trillo, 540 S.W.2d 728 (Tex. Cr.App.), this Court considered the consequence of a trial court’s failure to comply with the 20 day provision in Art. 42.12, Sec. 8(a), supra. This requirement was held to be mandatory, and the remedy to be dismissal of the revocation motion. In Trillo, this Court was faced with an unexplained failure to hold a hearing within twenty days.

The court in the instant case was required to appoint interpreters for the appellant under Art. 38.31(a), (c), V.A.C.C.P. This statute provides that:

“(a) In all criminal prosecutions, where the accused is deaf or a deaf-mute, he shall have the proceedings of the trial interpreted to him in a language that he can understand by a qualified interpreter appointed by the court.
‡ ⅜ * * * ⅜
“(c) In any case where an interpreter is required to be appointed by the court under this Article, the court shall not commence proceedings until the appointed interpreter is in court in a position not exceeding ten feet from and in full view of the deaf person.”

The foregoing statute guarantees the deaf or deaf and mute the right to confrontation by witnesses as guaranteed by the Sixth Amendment of the United States Constitution and Art. 1, Sec. 10, of the Texas Constitution. To proceed with a hearing when the accused is a deaf mute without interpreters is to deny the accused the right to a fair opportunity to defend against the State’s accusations mandated by the U. S. Supreme Court in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297. See Ferrell v. Estelle, 568 F.2d 1128 (5th Cir., 1978). Clearly, a deaf mute is denied the right to assist in his own defense unless afforded the benefit of interpreters to keep him informed of what is transpiring in the course of the proceeding. Not only was it necessary to have interpreters for appellant in the instant case, it must be borne in mind that there were witnesses who were mute and for their testimony to be known to the court, counsel, and the court reporter, it was necessary that there be interpreters for their benefit.

In Hernandez v. State, 556 S.W.2d 337 (Tex.Cr.App.), this Court noted that once the probation revocation hearing begins, Art. 42.12, Sec. 8(a), supra, provides that the same may be continued for good cause shown. For all practical purposes, the trial court proceeded as far as was humanly possible with the hearing when he met with counsel eight days after appellant’s motion was filed. At that time, the court noted that to proceed further with the hearing within the twenty day period would be “a fictitious or nonsensical thing” when such hearing would be held without the benefit of “necessary interpreters.” The ability of the court to arrange for the six interpreters for the handicapped appellant and witnesses within twenty-two days after the motion represents a highly diligent and commendable effort on the part of the court. Where, as in the instant case, the record supports the fact that the trial court proceeded as far as was possible to grant the probationer a hearing within the twenty day period, and where it is shown that a hearing held within such a period would be a sham and would constitute a deprivation of constitutional rights to probationer, we find that dismissal of the revocation motion is not required under our holding in Trillo.

The relief requested is denied.

      . The petition for writ of habeas corpus alleged that appellant had been in custody since “on or about May 17, 1978.”


text:
    Ex parte Bobby Dee LUCKY.
    No. 59098.
    Court of Criminal Appeals of Texas, Panel 2.
    Oct. 11, 1978.
    No appearance for appellant.
    No appearance for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P. Petitioner was convicted in Cause No. 77-356-C in the 54th Judicial District Court of McLennan County under an indictment alleging theft of property having a value of over $20.00 or more but less than $200.00, and further alleging two prior misdemeanor convictions for theft. See V.T.C.A. Penal Code, See. 31.03(d)(4)(c). Punishment was assessed at 10 years’ confinement in the Department of Corrections.

Petitioner filed his application for writ of habeas corpus in the trial court contending that a prior misdemeanor offense of theft used to enhance the instant case to the grade of felony was based upon a fundamentally defective information. An examination of the information in Cause No. 55,553 in the County Court at Law of McLennan County reveals that it is fatally defective because it fails to allege the property was taken “without the owner’s effective consent” or the property was “obtained by the petitioner from another, knowing it to be stolen.” See V.T.C.A. Penal Code, Sec. 31.03; Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977); Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976); Foster v. State, 548 S.W.2d 731 (Tex.Cr.App.1977).

This Court has held that a petitioner may attack the enhancement provisions of an indictment by way of a post-conviction writ. Ex parte Sanford, 562 S.W.2d 229 (Tex.Cr. App.1977); Ex parte Rivers, 559 S.W.2d 659 (Tex.Cr.App.1978).

Normally where a conviction relied on for enhancement in a trial before the court is found to be void, there is a remand to the trial court for the reassessment of punishment. An exception to this general rule exists under the circumstances of this case. The petitioner was convicted under the provisions of V.T.C.A. Penal Code, Sec. 31.03(d)(4)(c), where the addition of the prior two theft convictions created a new offense of the grade of felony and vested the district court with jurisdiction. Diamond v. State, 530 S.W.2d 586 (Tex.Cr. App.1975).

The conviction of the trial court in Cause No. 77-356-C is set aside and the indictment is ordered dismissed.

      . The information in Cause No. 55,553 filed on November 26, 1974, alleged that the offense occurred on November 21, 1974, and the judgment reflects that appellant entered a plea of guilty before the court on November 5, 1975.


text:
    Ex parte James Allen MITCHELL.
    No. 59193.
    Court of Criminal Appeals of Texas, Panel 1.
    Oct. 11, 1978.

      Michael Allen Peters, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and Douglas M. O’Brien, Asst. Dist. Atty., Houston, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is a post-conviction habeas corpus application. Petitioner was convicted in 1973 on pleas of guilty to four offenses committed in 1971. Punishment was assessed at five years each, and the sentences were cumulated. In two of the cases petitioner was convicted of knowing possession of forged instruments on August 18, 1971. Petitioner argues these two convictions violate the protection against double jeopardy as embodied in the carving doctrine.

The trial court entered findings of fact that three of the four convictions arose out of the same transaction on August 18. The record supports this finding only as to trial cause numbers 167908 and 167916. The records in cause number 167910 show conviction for a conspiracy to pass a forged instrument committed on August 13, 1971, as reflected in the indictment, judicial confession, judgment and sentence in that cause. The offenses in 167908 and 167916, however, do appear to have arisen out of the same transaction. Gates v. State, 100 Tex. Cr.R. 36, 271 S.W. 632.

The State here secured two convictions out of one possession on August 18,1971, of the two forged instruments upon which the prosecutions in cause numbers 167908 and 167916 were based. This violated the carving doctrine and petitioner is entitled to relief.

The presumption is that petitioner’s plea in cause number 167908 was entered first. Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr. App.). Accordingly, the conviction in cause number 167916 is set aside and the prosecution is ordered dismissed. A copy of this opinion shall be sent to the Texas Department of Corrections.

It is so ordered.


text:
    Larry WAFF, Appellant, v. The STATE of Texas, Appellee.
    No. 59215.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 11, 1978.

      James 0. Terrell and Dick Kettler, Waco, for appellant.
    Felipe Reyna, Dist. Atty. and Russell D. Hunt, Asst. Dist. Atty., Waco, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is a probation revocation case.

Appellant was tried and convicted of the offense of unauthorized use of a motor vehicle and punishment assessed at five years. Imposition of sentence was suspended and probation granted on November 9, 1977. One of the conditions of his probation was that he would work faithfully at suitable employment.

On January 27, 1978, the State filed a motion to revoke probation based on a violation of this condition. Appellant was arrested on January 28, 1978, and probation was revoked on February 10, 1978, after a finding by the trial court that the evidence justified a revocation for failure to work faithfully at suitable employment. Appellant maintains that the evidence was insufficient to support such a finding.

In its motion to revoke probation the State alleges three instances of appellant’s failure to work faithfully. The court revoked his probation on the basis of two of these alleged violations.

On December 21 appellant reported to the Twin Oaks Retirement Center for work. According to the testimony of the administrator of the center, appellant did not report to work the next day and was discharged for that reason when he showed up on the 23rd. Appellant testified that he had come in late on the 22nd because he overslept and was discharged then. He claimed he had never been told what his working hours were. The administrator was unable to state affirmatively that appellant had been briefed on his work hours but claimed he should have realized what they were since a work schedule was posted in a book all employees had to use to sign in and out of work. Appellant claimed never to have seen the book until the day he was fired.

Appellant was next fired from a job with a publishing company on January 24, 1978, for violating company policy. According to the record, he worked at this job for two and a half months. His supervisor testified that he was fired for failing to adhere strictly to a company policy. The plant where he worked was divided into offices in front and a production department in back. Production workers, such as appellant, were forbidden to go up front except on business. Appellant was fired because it was thought he had gone up front too frequently. Appellant’s supervisor testified that he had seen appellant there a couple of times without thinking anything about it and had fired him because he had been instructed to do so by an unnamed superior.

Examining the evidence in the light most favorable to the verdict, it is not possible to conclude that the State has proven by a preponderance of the evidence that appellant has failed to work faithfully at suitable employment. Kubat v. State, 503 S.W.2d 258 (Tex.Cr.App.); Butler v. State, 486 S.W.2d 331 (Tex.Cr.App.). This is so even though appellant did behave irresponsibly in failing to report on the second day of his first job. It can be seen that he was fired from his second job for reasons other than failure to work faithfully. There were no complaints about failure to show up or to work on that job. The witness could not say how many times appellant had gone up front and did not give any overriding justification for the policy.

The State has failed to show appellant did not work faithfully. The record does not show what appellant was doing from the time probation was granted on November 9, 1977, until his first job, as none of this was developed at the hearing. Cf. Steed v. State, 467 S.W.2d 460 (Tex.Cr. App.). The State has failed to show by a preponderance of the evidence that appellant did not work faithfully at suitable employment.

The order of revocation is reversed and the cause is remanded.

      . The State, in its brief, asserts that this has to be a mistake and that the witness must have meant 21/2 weeks. If true, this could have easily been cleared up at the hearing. The uncon-tradicted testimony, however, is that he worked there for two and a half months.


author: ROBERTS, Judge.

text:
    Robert T. SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 54418.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 18, 1978.
    Barry P. Helft, Dallas, Kim R. Thorne, Grand Prairie, for appellant.
    Tom O’Connell, Dist. Atty., Verla Sue Holland and George E. Gasper, Asst. Dist. Attys., McKinney, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for the offense of theft of property valued at more than two hundred dollars but less than ten thousand dollars; the punishment, enhanced by one prior felony conviction, was assessed by the jury at fourteen years’ imprisonment.

Appellant contends that the indictment is fundamentally defective for failing to allege all the essential elements of the offense of theft. We agree and reverse the judgment of conviction.

The offense was alleged to have occurred on February 18, 1975. At that time, V.T. C.A., Penal Code, Sec. 31.03 defined the offense of theft as follows:

“(a) A person commits an offense if, with intent to deprive the owner of property:
“(1) he obtains the property unlawfully; or
“(2) he exercises control over the property, other than real property, unlawfully.
“(b) Obtaining or exercising control over property is unlawful if:
“(1) the actor obtains or exercises control over the property without the owner’s effective consent; or
“(2) the property is stolen and the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen.” (Emphasis supplied.)

The record reflects that appellant was brought to trial under a two-count indictment, each count alleging a different theory of theft. When the State rested its case in chief, appellant moved for an instructed verdict on the ground that there was insufficient evidence to convict him of the offense charged. The court granted appellant’s motion as to count one of the indictment and the trial proceeded on the State’s theory embodied in count two which failed to allege that appellant acted with “intent to deprive the owner of property.”

In Ex Parte Cannon, 546 S.W.2d 266, 273 (Tex.Cr.App.1976), we held that the offense of theft defined in Sec. 31.03, supra, prior to the 1975 amendment, embraced four different sets of possible elements:

“(1) a person
“(2) with intent to deprive the owner of property
“(3) obtains the property
“(4) without the owner’s effective consent;
or
“(1) a person
“(2) with intent to deprive the owner of property
“(3) obtains the property
“(4) which is stolen property
“(5) from another
“(6) knowing it was stolen; or
“(1) a person
“(2) with intent to deprive the owner of property
“(3) exercises control over the property, other than real property
“(4) without the owner’s effective consent;
or
“(1) a person
“(2) with intent to deprive the owner of property
“(3) exercises control over the property, other than real property
“(4) which is stolen property
“(5) obtained by another
“(6) knowing it was stolen.” (Emphasis supplied.)

See also Reynolds v. State, 547 S.W.2d 590, 595 (Tex.Cr.App.1976).

We further held in Cannon that a theft indictment is fundamentally defective when it fails to allege that the defendant acted with intent to deprive the owner of property, “an element necessary to every theft allegation.” We also stated:

“An indictment for theft which does not allege all of the elements of one of these methods is fundamentally defective, since ‘Everything should be stated in an indictment which is necessary to be proved.’
Art. 21.03, Vernon’s Ann.C.C.P. See also Art. 21.11, V.A.C.C.P. . . .” Ibid at 273.

Moreover, Section 31.03, supra, prior to its amendment, as well as subsequent thereto, expressly provides in the description of the offense, that the actor have the “intent to deprive the owner of property.” Article 21.05, Vernon’s Ann.C.C.P., provides that where a particular intent is a material fact in the description of the offense it must be stated in the indictment. See also Worthington v. State, 469 S.W .2d 182, 183 (Tex. Cr.App.1971).

Nor are we persuaded by the State’s argument that a fundamental defect in one count of the indictment may be cured by incorporating the allegations of another count by reference. Each count of an indictment must definitely charge the commission of a distinct offense. Square v. State, 145 Tex.Cr.R. 219, 167 S.W.2d 192, 193 (1942); Powell v. State, 42 Tex.Cr.R. 12, 57 S.W. 95 (1900). However, this rule has no application to defects in form which may be supplied by reference to other parts of the indictment. Manovitch v. State, 50 Tex.Cr.R. 260, 96 S.W. 1, 2 (1906).

We conclude that the indictment failed to charge appellant with an offense against the laws of this State; therefore, the judgment of conviction is void. Appellant’s ground of error is sustained.

Due to our disposition of this ground of error, it is unnecessary to address appellant’s remaining contentions.

The judgment is reversed and the prosecution under this indictment is ordered dismissed.

      . Sec. 31.03, supra, was amended in 1975 and now provides:
      “(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

      “(b) Appropriation of property is unlawful if:
      “(1) it is without the owner’s effective consent; or
      “(2) the property is stolen and the actor appropriates the property knowing it was stolen by another.” (Emphasis supplied.)

      . Count one alleged theft by obtaining property without the owner’s effective consent under Section 31.03(a)(1) and (b)(1). Count two attempted to allege theft by obtaining property from another knowing it to be stolen under Section 31.03(a)(1) and (b)(2).

      . Count two charged that appellant
      “. . . did then and there unlawfully and fraudulently receive from person(s) unknown, certain corporeal personal property then and there belonging to Carroll Shelton, and which said property had theretofore been acquired by the said person(s) unknown in such manner as that the acquisition comes within the meaning of the term theft, the said property being a 1974 Chevrolet Tractor and a 1962 Fruhauf Trailer, over the value of Ten Thousand Dollars and the said [appellant] did then and there fraudulently receive and conceal the said property then and there well knowing the same to have been so acquired.” (Emphasis supplied.)
      It is apparent that the drafter of count two tracked the statutory language of Vernon’s Ann.P.C., Art. 1430 (1925), providing for the offense of receiving stolen property which was repealed by Acts 1973, 63rd Leg., p. 991, ch. 399, Sec. 3(a), eff. Jan. 1, 1974. The offense of receiving stolen property was one of many theft offenses consolidated in Section 31.03, supra, by virtue of V.T.C.A., Penal Code, Section 31.02.

      .V.T.C.A., Penal Code, Section 31.01(3) provides:
      “(3) ‘Deprive’ means:
      “(A) to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner;
      “(B) to restore property only upon payment of reward or other compensation; or
      “(C) to dispose of property in a manner that makes recovery of the property by the owner unlikely.”


author: W. C. DAVIS, Judge.

text:
    Paul M. HAECKER, Appellant, v. The STATE of Texas, Appellee.
    No. 54721.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 18, 1978.
    Bradshaw & Cass, Pasadena, for appellant.
    Carol S. Vance, Dist. Atty., Spencer H. Gardner and Kay Burkhalter, Asst. Dist. Attys., Houston, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

Appellant was convicted by a jury of cruelty to animals under V.T.C.A. Penal Code, Sec. 42.11(a)(1). The court assessed punishment at 60 days’ confinement in the Harris County jail. On appeal, appellant complains that the information was insufficient and that the State was permitted to make improper jury argument.

The information alleges that appellant “did then and there unlawfully, intentionally, and knowingly torture an animal, namely, a dog.” Appellant timely filed a motion to quash the information claiming that the information provided inadequate notice and was insufficient to bar a subsequent prosecution for the same offense. The court overruled the motion to quash.

Since we base our decision on the sufficiency of the information, a discussion of the facts is omitted as unnecessary.

Appellant’s first ground of error complains that the information failed to apprise him of the charge against him with such particularity as to enable him to prepare his defense. This contention was timely raised and therefore fundamental constitutional protections of adequate notice and due process are involved. Drumm v. State, 560 S.W.2d 944 (Tex.Cr.App.1977). These fundamental protections require a careful examination and consideration of the contentions from the perspective of the accused. Drumm, supra.

In an examination of appellant’s contention, we are reminded that the requirements of specificity are applicable to informations, as well as indictments. Art. 21.23, V.A.C.C.P. Therefore, an information must allege facts sufficient to give the accused notice of the particular offense with which he is charged. Art. 21.11, V.A. C.C.P. It is not sufficient to say that the accused knew with what offense he was charged; rather, we must inquire as to whether the face of the instrument sets forth in plain and intelligible language sufficient information to enable the accused to prepare his defense. Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976).

The State argues that the legislative definition of torture in V.A.C.S., Art. 180 makes unnecessary the inclusion of a definition of torture in the information. Baldwin v. State, 538 S.W.2d 109 (Tex.Cr.App.1976). This argument misses the mark, as we are concerned not with the definition of torture, but rather, with the sufficiency of an information using the general term “torture” as its only, description of a criminal act. Does such an information adequately notify the accused of the crime charged?

In many cases, an information will be considered sufficient if it follows the language of the statute. However, this rule applies only where the information is framed under a statute which defines the act constituting the offense in a manner that will inform the accused of the nature of the charge. In other words, if the language of the statute is itself completely descriptive of the offense, an information is sufficient if it follows the statutory language. Lopez v. State, 494 S.W.2d 560 (Tex.Cr.App.1973); Bush v. State, 97 Tex. Cr.R. 219, 260 S.W. 574 (1923). By the same test, if the language of the statute is not completely descriptive, then merely tracking the statutory language would be insufficient. As was pointed out in Conklin v. State, 144 Tex.Cr.R. 343, 162 S.W.2d 973 (1942), “It is not always sufficient to follow the language of the statute. There are cases that require greater particularity, either from the obvious intention of the Legislature or from the application of known principles of law.” In the present case, the appellant was charged by an information that tracked the language of V.T.C.A. Penal Code, Sec. 42.11. We must determine if the language of Sec. 42.11 is completely descriptive of the offense or whether greater particularity is required.

While we find no decisions on this particular issue under Sec. 42.11, a similar contention was decided by this Court under Art. 1374, V.A.P.C., 1925. Barnett v. State, 117 Tex.Cr.R. 358, 35 S.W.2d 441 (1931). The defendant in Barnett was charged by information with “torturing a mule by shooting same.” In deciding that the information was sufficient, this Court pointed to the legislative intent behind the statute and held, “the obvious intent of the legislature was that upon an allegation of torturing such animal and a setting out of what was done, the offense would be satisfactorily alleged.”

The State attempts to distinguish Barnett by pointing out that Barnett was decided under the former Penal Code. The State contends that Art. 1374 contains a list of torturous acts following the word “torture” and therefore, the “by shooting” description in Barnett was needed to distinguish among the various statutory tortures. This is a distinction without difference. Even if we accept the State’s argument on this point, the language “by shooting” still provided the accused notice of the specific type of act he would be required to defend. However, as we read Art. 1374, the list of acts following the word “torture” is not merely descriptive of torture but, rather, those acts are a continuing list of acts of cruelty, each one separate of the others. Further, shooting is not listed as an act following “torture” in Art. 1374, so the use of the phrase “by shooting” in Barnett was not to distinguish among other statutory offenses but, rather, was required by “the obvious intent of the legislature.”

We have compared Art. 1374 and Sec. 42.11 and find the differences, as to the act of torturing an animal, a matter of form. Such a charge in form has no impact on the requirements of an information under Sec. 42.11. Branch’s Texas Ann.P.C., 3rd Ed., Sec. 42.11, Legislative Sources and Explanatory Comments at pg. 219. The information was insufficient to give appellant adequate notice and enable him to adequately prepare his defense. Sassano v. State, 163 Tex.Cr.R. 345, 291 S.W.2d 323 (1956).

The judgment is reversed and the cause remanded.

      . The State argues that the information is sufficient because it follows the suggested forms in two “form books.” We note with interest the suggested form in the eighth edition of Morrison and Blackwell’s Texas Practice, Criminal Forms Annotated, Sec. 18.14:
      “did then and there intentionally and knowingly commit the following acts: to wit— [specify] — on an animal to wit: — [identify]


author: DOUGLAS, Judge.

text:
    Stephanie Lynne GRISSETT, Appellant, v. The STATE of Texas, Appellee.
    No. 54728.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 18, 1978.

      John K. Grubb, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Robert A. Shults and Paul Schiffer, Asst. Dist. Attys., Houston, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

Stephanie Lynne Grissett appeals from a conviction for driving while intoxicated. Punishment was assessed at five days in jail and a $50.00 fine.

In the early morning hours of April 9, 1976, appellant was stopped by Officer Goodman after he observed her running a stop sign and driving erratically. Officer Goodman testified that appellant staggered and swayed as she left her automobile, had difficulty retrieving her drivers license from her purse and slurred her words. Appellant stated to Officer Goodman that she had consumed two or three glasses of wine. Officer Goodman expressed his opinion that appellant was intoxicated.

Appellant testified that she had had less than a glass and a half of wine. She also stated that she was an epileptic and had taken her medication, dilantin, that day. Appellant further stated she may have had a mild seizure after being stopped by the police.

Appellant made two written requests for jury charges based on affirmative defenses. These charges instructed the jury to acquit if they believed the appellant did not possess her normal physical and mental faculties by reason of epilepsy or use of dilantin. The trial judge refused to submit these charges.

In five grounds of error appellant contends the trial court erred in refusing to submit the two charges to the jury. The sufficiency of the evidence is not challenged.

Appellant relies on Loftin v. State, 366 S.W.2d 940 (Tex.Cr.App.1963). In Loftin, a driving while intoxicated case, the defendant denied he had been drinking and offered plausible explanations for both his weakened physical condition and the smell of alcohol. The Court reversed the conviction because the trial judge had refused to submit a requested charge that the defendant’s condition was caused by diabetes. The Court distinguished McDonald v. State, 163 Tex.Cr.R. 244, 289 S.W.2d 939 (1956), because the defendant in McDonald neither denied drinking nor offered an explanation for the smell of alcohol in his breath.

A defendant is entitled to a charge on another causation factor only when he denies use of alcohol and can explain his suspect actions. Loftin v. State, supra; Whitaker v. State, 421 S.W.2d 905 (Tex.Cr.App.1967); Paredes v. State, 500 S.W.2d 160 (Tex.Cr.App.1973). Appellant testified that she had been drinking wine on the evening in question. She did explain her post-arrest behavior by stating she had a mild seizure. However, there was no explanation offered for her erratic driving. Under these conditions, appellant was not entitled to instructions on either epilepsy or use of dilantin.

No reversible error is shown. The judgment is affirmed.

PHILLIPS, J., dissents.


text:
    Jesse FORD, Appellant, v. The STATE of Texas, Appellee.
    No. 54916.

    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 18, 1978.

      Ronald Ned Dennis, Marshall, for appellant.
    Sam F. Baxter, Dist. Atty., Marshall, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.

       This appeal was originally docketed as No. 51,-989. It was dismissed for lack of timely sentence and inadvertently given No. 54,916 on resubmission. Therefore, Nos. 51,989 and 54,-916 are the same case.

   OPINION

W. C. DAVIS, Judge.

A jury convicted the appellant of the misdemeanor offense of driving while intoxicated, and assessed punishment at fifteen days’ confinement in the county jail and a $500 fine. The appellant raises eighteen grounds of error, including a challenge of the sufficiency of the evidence. We reverse and order a judgment of acquittal be entered in this cause.

To sustain a conviction for driving a motor vehicle while intoxicated, the evidence must show that the appellant drove the vehicle while intoxicated on a public road, highway, street, or alley. Johnson v. State, 517 S.W.2d 536 (Tex.Cr.App.1975).

In response to an accident report at approximately 10:20 P.M., on March 15, 1975, a rainy night, Department of Public Safety troopers McVain and White arrived at approximately 10:40 P.M. at the intersection of an apparent private road leading to the Tomlin-Webber Lumber Company and State Highway 43, northeast of Marshall, Texas. They found the appellant’s truck some 15 to 20 feet “completely off the roadway,” resting partly in a creek and against a fence, parallel to the highway, but in the quadrant between the highway and the private road. Another car and three occupants were at the scene as the troopers drove up but left upon Officer McVain inquiring as to who was the driver of the pickup truck. The appellant, standing outside his truck, stated that “I was the driver”, and that the accident occurred at approximately 10:15 P.M. The truck’s front and side were damaged and the damage “seemed” to have been sustained in running over a stop sign at the intersection of the private road and the state highway. Both White and McVain stated that the appellant, who registered a'.17 on the breathalyzer at approximately 11:20 P.M., was intoxicated.

Initially, we reject the State’s construction of the term “highway” as defined in V.A.C.S., 6701d, Sec. 13(a):

“The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.”

As we stated in Harris v. State, 499 S.W.2d 9 (Tex.Cr.App.1973), citing Capps v. State, 171 Tex.Cr.R. 579, 352 S.W.2d 833 (1962), the pertinent language of Art. 802, Vernon’s Ann.Penal Code, now 67011-1, should be viewed in its ordinary sense, and we quoted Black’s Law Dictionary definition of the term “road” :

“A highway; an open way for public passage; a line of travel or communication extending from one town or place to another; . . . ”

Clearly, the facts in the instant case do not fall within the definition. Regardless, the proof fails as there is no evidence that the appellant drove the vehicle on a public road or a highway. There is no evidence of tracks leading from the highway, skid marks from the highway, a trail of water leaking from the radiator leading back to the highway, nor any indication of which way the stop sign was run over. The diagram included in the record provides no assistance. See, generally, Johnson, supra. Additionally, there is no evidence that he had driven the vehicle while intoxicated.

The State argues that, “In this case, the defendant’s rights were protected even greater by the granting of the circumstantial evidence charge. The jury, after hearing the evidence and receiving and reading the charge, found beyond a reasonable doubt that the defendant had operated a motor vehicle on a public road while intoxicated.”

While it is true that when the sufficiency of the evidence is challenged we are required to view the evidence in a light most favorable to the verdict, Rogers v. State, 550 S.W.2d 78 (Tex.Cr.App.1977), the rule has long been that a conviction based upon 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 to only a strong suspicion or mere probability is insufficient. Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977). In Young v. State, 544 S.W.2d 421 (Tex.Cr. App.1976), we said:

“ ‘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.’ ” (Emphasis added)

The State proved that the appellant was intoxicated in Harrison County, Texas, on March 15,1975; nothing else. The evidence is insufficient to sustain the conviction for driving while intoxicated.

In Burks v. United States,-U.S.-, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1, the United States Supreme Court by opinion of June 14, 1978, held that the “Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient . . . .” In Greene v. Massey,-U.S.-, 98 S.Ct. 2151, 2154, 57 L.Ed.2d 15, handed down the same day as the Burks decision, the Supreme Court held, “Since the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings, Benton v. Maryland [395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)], we are bound to apply the standard announced in Burks to the case now under review.”

Having found that reversal must result in the instant case since we concluded that the evidence is insufficient to support the conviction, the Supreme Court’s decision in Burks v. United States, supra, and Greene v. Massey, supra, dictate that no further prosecution be had in this cause.

The judgment is reversed and the prosecution is ordered dismissed.

      . “. . . that the highway includes all the area between the two fences, specifically the area between the paved portion of the road and the fence next to which the pickup truck had come to rest. Thus, as far as the highway laws of this state are concerned, the appellant’s truck was resting on the highway itself.”


author: DALLY, Judge.

text:
    Michael H. NEELY, Appellant, v. The STATE of Texas, Appellee.
    No. 56094.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 18, 1978.

      Steven E. Halpin, Houston, (Court-appointed), for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Robert N. Burdette, Asst. Dist. Attys., Houston, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DALLY, Judge.

The appellant was indicted for, convicted of, and now appeals from the conviction for unauthorized use of a motor vehicle under V.T.C.A. Penal Code, Sec. 31.07. Appellant was sentenced to five years’ imprisonment.

On January 10, 1976, appellant borrowed Gloria Alex’s car, telling her he would return it in a couple of hours. Two days later he called Alex from out of town, telling her that something was wrong with the car. Alex told him that she needed the car, and appellant again told her that he would have it back in two hours. Alex next saw her car three months later, in damaged condition and with different license plates. In the meantime she had filed charges on appellant.

In his sole ground of error, appellant contends that the evidence is insufficient to sustain his conviction under Sec. 31.07, supra, because when he took the car he had the owner’s consent. Appellant asserts that he can only be convicted for theft under V.T.C.A. Penal Code, Sec. 31.03. Although these facts would support a conviction for theft, they also support a conviction for unauthorized use of a motor vehicle.

The general theft statute, V.T.C.A. Penal Code, Sec. 31.03(a) provides:

“A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.”

The elements of this offense are (1) a person (2) with intent to deprive the owner of property (3) unlawfully appropriates property. An appropriation of property is “unlawful” if it is without the owner’s effective consent. V.T.C.A. Penal Code, Sec. 31.03(b). “Appropriate” means in part “to acquire or otherwise exercise control over property . . ” V.T.C.A. Penal Code, Sec. 31.01(5)(B). (Emphasis added.)

V.T.C.A. Penal Code, Sec. 31.07(a) provides:

“A person commits an offense if he intentionally or knowingly operates another’s boat; airplane, or motor-propelled vehicle without the effective consent of the owner.”

The elements of this offense are (1) a person (2) intentionally or knowingly (3) operates a boat, airplane, or motor-propelled vehicle (4) without the effective consent of the owner.

The elements of these two offenses are the same except that in theft there is the additional element of an intent to deprive the owner of property. See Practice Commentary, Y.T.C.A. Penal Code, Sec. 31.07. The operation of a vehicle under Sec. 31.07 is included within the term “appropriate” as used in the theft statute. “Operation” is not defined in the Penal Code, but “operator” is defined in Art. 6701h, V.A.C.S., as “Every person who is in actual physical control of a motor vehicle.” Virtually the same definition is provided in Art. 6687b, V.A.C.S.

Because the offense of unauthorized use of a motor vehicle can be proved by the same or less than all the facts necessary to prove theft, it is a lesser included offense of theft. Art. 37.09, V.A.C.C.P.; Sutton v. State, 548 S.W.2d 697 (Tex.Cr.App.1977); Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App. 1976).

Since the appellant admits and we agree that the facts would sustain his conviction for the offense of theft, such facts will sustain his conviction for the lesser included offense of unauthorized use of a motor vehicle. See Daniels v. State, 464 S.W.2d 368 (Tex.Cr.App.1971).

Art. 40.03, V.A.C.C.P. supports this result:

“New trials, in cases of felony, shall be granted the defendant for the following causes, and for no other:
******
“(9) Where the verdict is contrary to law and evidence. A verdict is not contrary to the law and evidence, within the meaning of this provision, where the defendant is found guilty of an offense of inferior grade to, but of the same nature as, the offense proved.”

See Daniels v. State, supra.

Under the former penal code, the predecessor to the offense of unauthorized use of a motor vehicle was driving without consent. Art. 1341, V.A.P.C. In Hutchins v. State, 167 Tex.Cr.R. 595, 321 S.W.2d 880 (1959), and Ex parte Rhoder, 120 Tex.Cr.R. 78, 47 S.W.2d 827 (1932), this Court held that driving without consent was not a lesser included offense of theft. However, the lesser included offense statute has been completely revised since these decisions; thus they do not control the instant case. Compare Art. 37.09, V.A.C.C.P. as amended by Acts 1973, 63rd Leg. P. 968, ch. 399, Sec. 2(A), effective January 1, 1974, and Art. 695, V.A.C.C.P. (1925). See Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976).

Appellant’s ground of error is overruled; the judgment is affirmed.


text:
    Ex parte Glen Albert DUNN.
    No. 58647.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 18, 1978.

      Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an Art. 11.07, V.A.C.C.P. post-conviction writ of habeas corpus.

The petitioner was convicted for the felony offense of driving a motor vehicle on a public road while intoxicated; he was granted probation; he did not appeal; probation was subsequently revoked; an appeal from the order of revocation was affirmed. The petitioner now asserts and the trial court has found that the misdemeanor offense of driving a motor vehicle on a public road while intoxicated that was used to raise the subsequent offense to a felony was not a final conviction.

The petitioner did not appeal from the original felony conviction as did the defendant in Clopton v. State, 408 S.W.2d 112 (Tex.Cr.App.1966), which petitioner cites. By failing to appeal and raise this ground the petitioner waived his opportunity to contest the validity of the alleged misdemeanor conviction. This is not a no-evidence case the appellant may not now by habeas corpus proceedings collaterally attack the sufficiency of the evidence supporting his conviction. Ex parte Lyles, 168 Tex.Cr.R. 145, 323 S.W.2d 950 (1959); Ex parte Taylor, 480 S.W.2d 692 (Tex.Cr.App. 1971); Owens v. State, 540 S.W.2d 324 (Tex. Cr.App.1976); Ex parte Ashcraft, 565 S.W.2d 926 (Tex.Cr.App.1978).

The relief sought is denied.


text:
    Stanley Homer BATES, Appellant, v. The STATE of Texas, Appellee.
    No. 59096.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 18, 1978.

      Howard B. Law, Dallas, for appellant.
    Henry Wade, Dist. Atty., John Tatum and David C. Schick, Asst Dist. Attys., Dallas, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ. -
   OPINION

DALLY, Judge.

This is an appeal from a conviction for unlawful possession of a firearm by a felon, V.T.C.A. Penal Code, Sec. 46.05. Appellant waived a jury trial and entered a plea of guilty; he was sentenced to imprisonment for ten years.

In his sole ground of error appellant contends that the indictment is void for failure to state an offense.

V.T.C.A. Penal Code, Sec. 46.05, provides:

“(a) A person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives.”

The indictment alleges in pertinent part that appellant did

. . then and there intentionally and knowingly possess a firearm to-wit: a Handgun, away from the premises where he lived; and prior to the commission of said act, the said STANLEY HOMER BATES, was duly and legally convicted of the felony offense of Burglary, being a felony involving an act of violence to property . . . ”

Appellant argues that burglary is not a violent crime per se, and that specific acts of violence to property must be alleged in the indictment in order to charge him with an offense under Sec. 46.05.

The indictment alleges all the elements of an offense under Sec. 46.05, supra, including that the prior burglary was “an act of violence to property.” The latter allegation tracks the language of Sec. 46.05. We have previously held that allegations in the terms of the applicable penal statute are generally sufficient. Rowl v. State, 547 S.W.2d 612 (Tex.Cr.App.1977); Baldwin v. State, 538 S.W.2d 109 (Tex.Cr.App.1976). See Art. 21.17, V.A.C.C.P. Moreover, in Powell v. State, 538 S.W.2d 617 (Tex.Cr.App.1976), we upheld a similar indictment alleging that the defendant had been convicted “of a felony offense involving violence to property, to-wit, the felony offense of Burglary of a Motor Vehicle.” We distinguished the indictment in Powell from the void indictments in Mendoza v. State, 460 S.W.2d 145 (Tex.Cr.App.1970), and Waiter v. State, 460 S.W.2d 147 (Tex.Cr.App.1970), because the latter failed to allege that the prior burglary involved an act of violence. We hold that the indictment need not allege specific evidential facts to show that the burglary involved an act of violence to property; it is sufficient to allege that the burglary involved an act of violence to property.

The judgment is affirmed.


text:
    Ex parte Lloyd Lawrence LEGG.
    No. 59100.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 18, 1978.

      Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is a post conviction writ of habeas corpus proceeding. Art. 11.07, V.A. C.C.P. The petitioner was convicted on June 18,1970, in Taylor County for committing the offense of burglary, in Cause No. 10.566A. The indictment alleges that the offense was committed on or about the 5th day of June, 1970, but the indictment was returned and filed on the 8th day of May, 1970. Since the date alleged is an impossible date the indictment is fundamentally defective. See Moreno v. State, 375 S.W.2d 309 (Tex.Cr.App.1964); Chadwick v. State, 252 S.W.2d 165 (Tex.Cr.App.1952); Carver v. State, 90 Tex.Cr.R. 342, 235 S.W. 211 (1921); Warner v. State, 74 Tex.Cr.R. 209, 167 S.W. 1109 (1914). The validity of a fundamentally defective indictment may be challenged in a post conviction writ of habeas corpus. Ex parte Fontenot, 550 S.W.2d 87 (Tex.Cr.App.1977).

Although the appellant has served the sentence imposed in Cause No. 10,566A, he is now imprisoned by the Department of Corrections serving time on subsequent sentences. The petitioner alleged that the relief he seeks is not moot because the collateral consequences of his conviction “adversely affect his prospects for pardon and parole and his classification and treatment in prison.” Mootness cannot prohibit a collateral attack if prior convictions that have been discharged may have serious collateral consequences to a criminal defendant. Ex parte Guzman, 551 S.W.2d 387 (Tex.Cr.App. 1977).

The relief sought is granted. The conviction in Cause No. 10,566A in Taylor County is set aside and the indictment is ordered dismissed.

DOUGLAS, J., dissents.


text:
    Edward H. CORTINAS, Appellant, v. The STATE of Texas, Appellee.
    No. 59125.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 18, 1978.
    Samuel D. McDaniel, Austin, for appellant.
    James L. McMurtry, County Atty., and J. Randall Walker, Asst. County Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for possession of a switchblade knife. Punishment was assessed by the court at confinement in the county jail for ten days and a fine of $175, but appellant was placed on probation for a term of twelve months.

Appellant contends that the knife in question was seized in the course of an unlawful search of his person. Although not without difficulty, we agree, and reverse the conviction.

At approximately midnight on May 10, 1977, Austin police officer Rennie Dunn received a radio report of an armed robbery at a grocery store. In the report, the suspect was described as a black male armed with a knife, carrying a quart bottle of beer, and wearing a grey shirt and blue jeans. The suspect had left the store on foot.

Dunn immediately drove to the area of the store. As he turned onto a street one block from the store he saw appellant walking along the curb carrying a paper sack. Dunn drove up beside the appellant, who did not flee or offer resistance, and immediately stopped and frisked him to determine if he were armed. The knife in question was discovered as a result of this frisk. Appellant was then detained until the store manager arrived. Although the manager stated that he was not the robber, appellant was arrested for possession of the switchblade knife.

Appellant is not a black man. On the night in question, he was wearing a blue and white striped shirt and blue jeans, and was carrying a quart bottle of beer in the paper sack. Dunn testified that he saw that appellant was not black, and was not wearing a grey shirt, the moment he stopped him. Dunn was asked by appellant’s attorney, “When you stopped him and decided to go ahead and search, did you think perhaps maybe the description was in error?” Dunn answered, “. . . [M]y first impression was to make a pat down and frisk for weapons and then it’s a possibility, it can happen. It’s happened before.”

A police officer may detain a person temporarily for investigative purposes where the circumstances reasonably indicate that the person either has or is preparing to commit a crime. Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972). In the course of such a temporary detention, an officer may conduct a limited search for weapons where it is reasonably warranted for his safety or the safety of others. Perez v. State, 548 S.W.2d 47 (Tex.Cr.App.1977); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App. 1976); Wood v. State, 515 S.W.2d 300 (Tex. Cr.App.1974). A temporary detention must be based on specific, articulable facts which, taken together with the rational inferences from those facts, reasonably warrant further detention of the individual while more information is obtained. Ceniceros v. State, 551 S.W.2d 50 (Tex.Cr.App.1977); Greer v. State, 544 S.W.2d 125 (Tex.Cr.App.1976). The inarticulate hunch, suspicion or good faith of a police officer will not warrant such a temporary detention. Ceniceros v. State, supra; Brown v. State, supra.

Officer Dunn was understandably suspicious when he first saw appellant, since he was in close proximity to the crime scene and was carrying a sack which could (and, in fact, did) contain a quart bottle of beer. But upon stopping appellant, Dunn immediately saw that he did not fit the description of the robber: he was not black and was not wearing a grey shirt. At that point, Dunn did not have specific, articula-ble facts on which to base the further detention of appellant. Indeed, Dunn testified, in effect, that he detained and frisked appellant on the suspicion that the description of the robber was incorrect. Such a suspicion is insufficient for a police officer to detain a person for investigative purposes. Ceniceros v. State, supra; Brown v. State, supra. Dunn’s search of appellant was unlawful and the knife seized was erroneously received in evidence. Duncan v. State, 549 S.W.2d 730 (Tex.Cr.App.1977). Cf. Perez v. State, supra; Ablon v. State, supra.

The judgment is reversed and the cause remanded.


text:
    William Douglas UTTER, Appellant, v. The STATE of Texas, Appellee.
    No. 59169.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 18, 1978.

      Terry B. Arnn, Arlington, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, Bill Harris and Howard M. Fender, Asst. Dist. Attys., Fort Worth, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for operating a wrecker without a permit in violation of an ordinance of the city of North Richland Hills. The court assessed punishment at a fine of $101.00 following a plea of nolo contendere.

In light of appellant’s contentions, a brief factual resume is deemed necessary.

The factual basis upon which the conviction is based was a stipulation of evidence entered into by the State and the appellant. This stipulation reflects that on August 5, 1977, an automobile leased from Dub Shaw Ford, Fort Worth, was involved in an accident in North Richland Hills. The driver of the auto instructed police to call Dub Shaw Ford to tow the damaged vehicle. In turn, an employee of Dub Shaw Ford informed the police dispatcher that Clarence Cornish Automobile Service, Inc., did all of its towing and to summon his wrecker to the scene. The appellant was a wrecker driver for Cornish.

The dispatcher called Cornish Automobile and asked if it had a towing permit; an employee of Cornish replied that it did. The employee mistakenly thought the dispatcher meant a Texas Railroad Commission permit, when in fact the dispatcher meant a permit issued by the City of North Richland Hills.

When the wrecker arrived at the scene, the officer discovered that the wrecker had no city permit. The officer issued a citation to the driver for operating a wrecker without a permit. The driver was then allowed to tow the disabled vehicle away. At the time these incidents occurred, Cornish had a permit to operate a wrecker from the Texas Railroad Commission and from the cities of Fort Worth, Hurst, Forrest Hills, and Arlington.

The appellant challenges the constitutionality of the ordinance involved. He maintains that in requiring the license the city is attempting to regulate an area preempted by state regulation.

The Texas Constitution Art. I, Sec. 28, provides that:

“No power of suspending laws in this State shall be exercised except by the Legislature.”

Article XI, Sec. 5, provides that in towns of over 5,000 population:

“ . . . providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State . . . .”

Article I, Sec. 28, supra, is applicable to city ordinances that conflict with the general laws of the state. City of Baytown v. Angel, 469 S.W.2d 923, 925 (Tex.Civ.App. —Houston, 14th Dist., 1971, writ ref’d. n.r. e.), and cases cited therein. By its very terms Art. XI, Sec. 5, supra, applies to cities such as North Richland Hills.

Article 1175, Secs. 21 and 23, V.A.C.S., delineate that authority delegated to home rule cities by the Legislature:

“21. To regulate, license and fix the charges or fares made by any person owning, operating or controlling any vehicle of any character used for the carrying of passengers for hire or the transportation of freight for hire on the public streets and alleys of the city.
* Sfc ¾! * * ⅜
“23. To license any lawful business, occupation or calling that is susceptible to the control of the police power.”

The city ordinance involved, North Richland Hills Code Secs. 16-156 to 16-175 (1971), provides a comprehensive scheme of control over wrecker service in that city. Among other provisions, the ordinance requires disclosure by the applicant of insurance coverage, providing a minimum amount of coverage; names, addresses and driver’s license numbers of persons who operate the wreckers; specification as to size and equipment of each wrecker; prohibitions about soliciting business and going near an accident unless the wrecker company is called by the owner of the vehicle or the police; conditions to be met by applicants desiring to be on the wrecker rotation list; the posting of a bond or cash in escrow to cover damage to stored vehicles and their contents; a provision for inspection of wrecker units by the chief of police and his representatives; and the requirement that a fee of $5.00 be paid for each wrecker by the holder of the permit. Article 911b, V.A.C.S., is the statutory'basis for the Railroad Commission’s regulation of wreckers for hire operated within the state. Cornish had been issued a certificate to operate a wrecker in Tarrant County by the Railroad Commission.

The issuance of a certificate of convenience and necessity from the Railroad Commission to operate a bus in Texas does not exclude a city from regulating its operation within that city. Town of Ascarate v. Villalobos, 148 Tex. 254, 223 S.W.2d 945 (1949). Other cases hold that although the state licenses or otherwise regulates the activity a city may enact ordinances controlling the operation of ambulances, City of Amarillo v. Griggs Southwest Mortuary, 406 S.W.2d 230 (Tex.Civ.App. — Amarillo, 1966, ref’d. n.r.e.); the inspection of boats, City of Stamford v. Ballard, 162 Tex. 22, 344 S.W.2d 861 (1961); and the operation of taxis, Dallas Taxicab Co. v. City of Dallas, 68 S.W.2d 359 (Tex.Civ.App. — Dallas, 1934, no writ).

The cities’ power to regulate the above activities is not without limit, however. While a city can regulate the operation of taxis, it cannot license the drivers of the taxis. Reed v. City of Waco, 223 S.W.2d 247 (Tex.Civ.App. — Waco, 1949, ref’d.); City of Corpus Christi v. Gilley, 458 S.W.2d 124 (Tex.Civ.App. — Corpus Christi, 1970, ref’d. n.r.e.). These cases involved conflicts between the ordinance and the state statute. In each of the foregoing cases, the state statute involved provided that:

“No person holding an operator’s, commercial operator’s, or chauffeur’s license duly issued under the provisions of this Act shall be required to obtain any license for the operation of a motor vehicle from any other State authority or department.” Article 6687b, Sec. 2(c), V.A.C.S.

Thus, the cities’ attempt to license the drivers was in direct conflict with the statute.

The appellant has not cited, nor do we find, any such statute presenting such a direct conflict with the ordinance in question.

The appellant further contends that the ordinance involved is unconstitutional as it collects a license fee in violation of state statutes.

Article 11, Sec. 5, of the Texas Constitution prohibits a city from enacting any ordinance inconsistent with the general laws of this state. Article 6698, Y.A.C.S., provides that:

“The certificate of registration and numbering for purposes of identification, and the fees herein provided for shall be in lieu of all other similar registrations heretofore required by any county, municipality or other political subdivision of this state, and no such registration fees or other like burdens shall be required of any owner of any motor vehicle or motorcycle by any county, municipality or other subdivision of the state. This provision shall not affect the right of incorporated cities and towns to license and regulate the use of motor vehicles for hire in such corporation. Nothing herein shall in anywise authorize or empower any county or incorporated city or town in this state to levy and collect any occupation tax or license fees on motorcycles, motor vehicles or motor trucks; provided that such cities or towns are hereby authorized and empowered to levy and collect a city permit fee, not to exceed two (2%) per cent of the gross receipts per annum, for the operation of each motor vehicle transporting passengers for hire or a street rental charge based upon gross receipts, not to exceed two (2%) per cent per an-num, for the operation of motor vehicles transporting passengers for hire, other than motor vehicles operating under a permit or certificate of the Railroad Commission of the State of Texas or the Interstate Commerce Commission; and provided further that nothing in this Article shall be construed as impairing or altering in any way the provisions relating to payments in any contracts, agreements, or franchises now in existence, or hereafter made between an incorporated city or town and the owners or operators of motor vehicles transporting passengers for hire. Acts 1917, p. 475. Amended by Acts 1947, 50th Leg., p. 512, ch. 302, § 1.” [Emphasis added.]

The appellant urges that the five dollar fee for a permit for each wrecker is an occupation tax.

A city can collect a license fee under its police power if the purpose of the fee is regulatory. Reed v. City of Waco, supra; Dallas Taxicab Co. v. City of Dallas, supra. The test to determine if the fees collected are license fees rather than an occupation tax prohibited by Art. 6698, V.A.C.S., is set out in Reed v. City of Waco, supra. The Court of Civil Appeals, quoting from Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896 (1937), stated:

“ ‘The principle of distinction generally recognized is that when, from a consideration of the statute as a whole, the primary purpose of the fees provided therein is the raising of revenue, then such fees are in fact occupation taxes, and this regardless of the name by which they are designated. On the other hand, if its primary purpose appears to be that of regulation, then the- fees levied are license fees and not taxes.’ (citing many cases.)” 223 S.W.2d at 255.

There is a presumption that a city ordinance is valid “and the burden of showing its invalidity rests on the party attacking it.” Town of Ascarate v. Villalobos, supra; see General Telephone Co. v. City of Garland, 509 S.W.2d 927 (Tex.Civ.App.—Dallas, 1974, ref’d. n.r.e.). Here, the appellant has made no attempt to show, nor does the record reflect, that the five dollar fee was not reasonably necessary for the regulation of wreckers operating within the city. In light of the foregoing, we hold that this is not an occupation tax or license fee as prohibited by Art. 6698, V.A.C.S., nor do we find that the ordinance is in direct conflict with any state statute. We reject appellant’s attack on the constitutionality of the ordinance.

Appellant contends that the evidence fails to show a violation of the ordinance. This contention rests on the fact that the officer issued the citation before any towing had occurred, and ultimately gave his permission for the appellant to tow the car.

The ordinance provides:

“Sec. 16-156. Compliance with article.
Any person engaging in a motor vehicle wrecker service for hire shall comply with the provisions of this article. (Ord. No. 343, § I, 2-8-71)”
“Sec. 16-158. Service permit required.
No person shall engage in the business of a motor vehicle wrecker service for hire without first obtaining a wrecker service permit from the city for each wrecker operated within the city. (Ord. No. 343, § I, 2-8-71)” North Richland Hills Code Sec. 16-156, 158 (1971).

To determine if the acts of the appellant were a violation of the ordinance, it is necessary to determine what acts the ordinance prohibits. In Harris v. Laquinta-Redbird Joint Venture, 522 S.W.2d 232 (Tex.Civ. App.—Texarkana, 1975, ref’d. n.r.e.), the court summarized the rules regarding interpretation of ordinances.

“The same general rules of construction which apply to statutes apply also to municipal ordinances. Reed v. City of Waco, 223 S.W.2d 247 (Tex.Civ.App. Waco 1949, writ ref’d.). The prime objective in such construction is to determine the intention of the legislative body. Bolton v. Sparks, 362 S.W.2d 946 (Tex.1962). To assist in ascertaining the legislative intent resort may be had to several sources. Among these are (1) the object and purpose of the enactment and the evils sought to be prevented, 39 Tex.Jur.2d Municipal Corporations, Sec. 267, p. 594; Hargrave v. Texas & P. Ry. Co., 12 S.W.2d 1009 (Tex. Comm’n App.1929, jdgmt. adopted); (2) the meaning of the words actually used, 53 Tex.Jur.2d Statutes, Secs. 146, 147; and (3) the construction placed upon the enactment by the officers or agencies charged with its administration or enforcement. Calvert v. Kadane, 427 S.W.2d 605 (Tex.1968); Heard v. City of Dallas, 456 S.W.2d 440 (Tex.Civ.App. Dallas 1970, writ ref’d. n.r.e.). In determining the meaning of the words used, an attempt will be made to harmonize the various provisions of the enactment, and the words will be given their usual and ordinary meaning, except that where technical words or words of a particular art, trade or activity are used they will be given the meaning recognized by persons engaged in that particular art, trade or activity. 53 Tex.Jur.2d Statutes, Sec. 150 p. 217; Hindes v. Lock, 259 S.W. 156 (Tex.Comm’n App.1924, jdgmt. adopted); Texas & N.O.R. Co. v. Kelso Building Material Co. Inc., 250 S.W.2d 426 (Tex. Civ.App. Galveston 1952, writ ref’d. n.r. e.); Vernon’s Tex.Rev.Civ.Stat.Ann. art. 10.” 522 S.W.2d at 234-35.

The stipulation shows that at the time of the citation the appellant was engaging in the wrecker business without a North Rich-land Hills permit. The appellant’s contention that there was no violation because he had not yet towed a car applies too narrow a construction to the ordinance. The appellant came to the scene of an accident, with equipment capable of towing, and was there to tow a damaged car. These facts are sufficient to show that appellant was engaged “in the business of a motor vehicle wrecker service” in North Richland Hills without having obtained a permit from such city.

The appellant also raises the question as to whether the officer’s permission to tow the car creates an exception to the ordinance. North Richland Hills Code, Sec. 16-171a and b, provide:

“(a) When a police officer investigating an accident determines that any vehicle which has been involved in a collision or accident upon a public street is unable to proceed safely under its own power, or when the owner thereof is physically unable to drive such vehicle, the officer shall request the owner to designate the wrecker company which he desires to remove the vehicle. When the owner has designated the wrecker company desired, the police officer shall communicate such fact immediately to police department headquarters, and it shall be the duty of the dispatcher receiving such information at headquarters to call the designated company, provided the company has previously obtained a valid wrecker service permit to operate in the city. In the event the company does not have a valid wrecker service permit, the owner shall be so informed and given an opportunity to designate another company from a list of companies which have obtained valid wrecker service permits, which each officer shall carry. The officer in charge at the scene of any accident may authorize use of a company which does not have a permit if requested by the individual in need of service and if it will result in no unnecessary delay in clearing the scene of the accident.
“(b) In the event the owner of a vehicle involved in an accident or collision is physically unable to designate the wrecker company desired, or refuses to designate one, the investigating officer shall communicate such fact immediately to police department headquarters. The police department shall maintain a wrecker rotation list in alphabetical order *which shall contain the name and address of each wrecker service company that complies with this article in order that such company might be called upon for wrecker service by the police department. The police officer receiving a call at the police headquarters for wrecker service shall call the first wrecker company on the list to tow the disabled vehicle or move the same from the public streets of the city. After the company at the top of the list receives a call, the company’s name shall be placed at the bottom of the list and the next company shall be moved to the top of the list until it receives a call. This process shall be repeated until each licensed company providing wrecker service has received a call. ’ The police department shall notify each wrecker company in sufficient time prior to its rendering wrecker service in order that the company might adequately provide the necessary men and equipment to answer such calls.”

There is no express provision in the ordinance providing that the officer’s action in giving permission to a wrecker to clear the scene constitutes a waiver of the permit required by the ordinance, nor do we find that such a waiver is implied by the terms of the ordinance. The ordinance does not authorize the officer investigating a wreck to call a wrecker service which does not hold a permit. The only time where this situation could arise would be when a wrecker happens on the scene through accident or the driver of the wrecker proceeds to the scene in defiance of or under the mistaken belief that his wrecker service has the required permit. In such events, if the “individual in need of service” requests “and if it will result in no unnecessary delay in clearing the scene of the accident,” the officer may authorize use of a wrecker which does not have a permit to clear the scene. Common sense and reason dictate the necessity of clearing the scene of an accident without “unnecessary delay” and for this reason the wisdom of giving the officer this authority is obvious. Clearly, this authority does not extend to empowering the officer to waive the violation under which appellant was prosecuted as the result of operating the wrecker without a permit required by the ordinance in question.

The judgment is affirmed.

      . The population of North Richland Hills was 16,514 in 1970. Handbook of Texas Governments, Sec. III, p. 11 (March 1973).

      . North Richland Hills is a home rule city. Handbook of Texas Governments, Sec. III, p. 11 (March 1973).

      . The text of the pertinent part of Tex.Const. Art. 11, Sec. 5, is set out above.


author: ODOM, Judge. VOLLERS, Judge,

text:
    Ernest BROGGI, Jr., Petitioner, v. Peter Michael CURRY, District Judge, Respondent.
    No. 59289.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 18, 1978.
    Charles D. Butts, San Antonio, for petitioner.
   OPINION

ODOM, Judge.

Petitioner brought these proceedings to invoke our original jurisdiction to grant writs of habeas corpus regarding criminal law matters. Article V, Sec. 5, Texas Constitution, as amended, 1977. He contends that respondent has denied him the right to appeal from four felony convictions in an improper application of Article 44.02, V.A. C.C.P. He urges this Court to accord him the right of appeal and order respondent to see that right is carried out.

On August 8,1978, when the habeas petition was presented to this Court, the matter was ordered filed and set for submission before the Court en banc, and the record of all the proceedings on the guilty pleas resulting in the four convictions were ordered forwarded to this Court and the petitioner’s bail was set at $75,000 pending review of the matter presented by the petitioner.

After consideration, we conclude that this matter should be treated as an application for writ of mandamus rather than as an original application for writ of habeas corpus. Ex parte Giles, Tex.Cr. App., 502 S.W.2d 774; Vance v. Clawson, Tex.Cr.App., 465 S.W.2d 164, cert. den., Pruett v. Texas, 404 U.S. 996, 92 S.Ct. 529, 30 L.Ed.2d 548. This Court has the authority to issue such writs of mandamus regarding criminal law matters. Article V, Sec. 5, as amended, 1977.

From the record forwarded from the trial court, it is clear that the respondent’s denial to petitioner was based on Article 44.02, V.A.C.C.P., as amended, which reads:

“A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.”

The record further reflects that on May 30,1978 petitioner waived trial by jury and entered guilty pleas to four felony offenses before the court. There were three second degree felony theft offenses and one sale of securities by an unregistered agent. The trial judge heard the guilty plea to the securities fraud charge first and then heard guilty pleas to the three felony theft charges. While the trial judge in each hearing inquired as to whether there was a plea bargain and was assured by the prosecutor that there was one, he did not inquire of the petitioner personally whether he had agreed to the recommended punishment.

Decker v. State, 570 S.W.2d 948 (Tex.Cr. App.1978), held that Article 44.02, supra, requires the defendant to personally consent, and where the record fails to reflect such personal consent, then the right of appeal cannot be denied under such statute.

It follows that the failure to ascertain if the petitioner had personally consented to the recommended punishment prevents Article 44.02, supra, from being used to prevent the appeals. Petitioner is entitled to the relief he seeks. We are sure the respondent will accord the petitioner his right of appeal in the four cases involved without the necessity of the issuance of a mandamus.

It is so ordered.

ONION, P. J., not participating.

VOLLERS, Judge,

concurring.

I concur in the conclusion of the majority that this matter should be treated as an application for writ of mandamus and I concur in the result reached that the petitioner is entitled to relief. However, I feel that the majority is overlooking the plain wording of Article 44.02, V.A.C.C.P. which clearly provides that under certain circumstances a trial judge may deny the defendant the right to appeal where he “assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney . . . ” While this record before us clearly reflects that there was a plea agreement, it does not reflect that the agreement included an agreement by the defendant and his counsel and the prosecutor as to punishment. The record clearly reflects that the State was to recommend ten years’ confinement in the Texas Department of Corrections while the petitioner’s attorney was to ask the court to grant probation. Contrary to the holdings of this Court in Lechuga v. State, 532 S.W.2d 581 (Tex.Cr.App.1975) I feel very strongly that there is a great deal of difference between the punishment requested by the petitioner of probation for a period of ten years and the punishment requested by the prosecutor of confinement in the Texas Department of Corrections for ten years. If the majority is holding that probation and confinement are the same punishment, I simply cannot agree.

The right to appeal is granted to every person in a criminal action who has been convicted, with the limited exception carved out by the legislature in its provisions enacted in Article 44.02, supra. This exception to the right of appeal should not be broadened by an interpretation that goes beyond the scope of the provisions which the legislature specifically enacted. I therefore concur in the result reached that the petitioner is entitled to an appeal because this record clearly reflects that there was no agreement as to punishment.