author: PHILLIPS, Judge.

text:
    Thomas Brooks EPPERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 57356.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 14, 1979.
    Rehearing En Banc Denied April 4, 1979.
    Richard Grainger and Mike A. Hatched, Tyler, for appellant.
    Henry M. Wade, Dist. Atty., Ronald D. Hinds, Terry Madden and Sam G. Longoria, Asst. Dist. Attys., Dallas, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for driving while intoxicated. The penalty was assessed at three days’ imprisonment and a $500.00 fine.

Appellant’s first ground of error claims that the State failed to establish the predicate for the admissibility of State’s Exhibit No. 1, a Texas Department of Public Safety breathalyzer operational checklist for the administration of a breathalyzer examination on Thomas Brooks Epperson on December 31, 1975.

Article 3737e, Y.A.C.S., provides, in pertinent part:

Section 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that:
(a) It was made in the regular course of business;
(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;
(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter.

The testimony of the officer who conducted the breathalyzer examination established the predicate for the admission of the checklist as required by the above statutory provisions. Appellant’s first ground of error is overruled.

Appellant’s second ground of error complains of the admissibility of the testimony of the Dallas area technical supervisor, Louis Juarez, because State’s Exhibit No. 1 was inadmissible. In light of our disposition of appellant’s first ground of error, the second ground of error is likewise overruled.

Appellant’s third ground of error complains of the admission of the testimony of the police officer who conducted the breathalyzer examination of appellant on the basis that the evidence did not show that he had a “valid certificate issued by the Texas Department of Public Safety” to conduct breathalyzer examinations as required under Article 6701/-5, Y.A.C.S. However, the officer did testify that he was certified to administer a breathalyzer examination on the date this test was administered. It is noted that Article 6701/-5, Section 3(b), V.A.C.S., only authorizes the Texas Department of Public Safety “to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analysis, and to issue certificates certifying such fact.” The necessity of detailing by what authority one is certified to administer a breathalyzer examination was not addressed in French v. State, Tex.Cr.App., 484 S.W.2d 716. In light of the exclusive certification powers expressed in Article 6701/-5, Section 3(b) we deem it unnecessary to have express testimony identifying the authority by which a law enforcement officer is “certified” to conduct such examinations. We believe the evidence was sufficient to authorize Officer Bryan to testify to the administration of the breathalyzer examination. Appellant’s third ground of error is overruled.

In appellant’s brief where he enumerates the grounds of error to be raised, his fourth ground of error complains of the trial court’s failure to strike the testimony of Officer Bryan relating to the breathalyzer examination of the appellant “because his testimony is not related either to a known breathalyzer machine or to a given ampoule control number as required under the guidelines in French v. State, [Tex.Cr.App.], 484 S.W.2d 716, 719 (1972).”

Appellant’s trial counsel objected to the police officer’s testimony concerning the results of the breathalyzer examination on the grounds raised in his third ground of error discussed above. After cross-examining the officer, the appellant requested that his testimony be stricken for several reasons, including inadequate predicate, but without specifying the issue raised in his ground of error here. The trial court sustained the motion and indicated he would instruct the jury to disregard the testimony, at which time the State declared it would present another witness. The court then decided not to instruct the jury to disregard until the State closed its cause as to the breathalyzer. The defense made no objection and presented its ease. The next day the State presented the testimony of Louis Juarez, the Dallas area technical supervisor. The defense extensively cross-examined this witness and, after excusing the witness, interposed several objections, including:

Defendant further objects to the testimony of Officer Juarez — or, Mr. Juarez, on the basis that the State has not established the materiality of the equipment to which Officer Juarez testified to as being in working order, nor has he — nor has the State established the relevancy as to the ampule number or control number of the — uh—what is that stuff — of the test chemicals to which the State must prove were in good working order — both of which the State must prove were in good working order prior to laying a proper predicate for the admission of the breathalyzer testimony. Without such proper predicate being laid, the Defendant respectfully requests that the testimony of Officer Rose — or, Officer Bryan, with regard to his administration of the breathalyzer test be stricken from the record; and further request that the testimony of Officer — or, Mr. Juarez, be stricken from the record on the basis that it is not presently material; in that the State has failed to lay a proper predicate for the admission of both.

It is clear from the trial court’s discussion of appellant’s objection to Officer Bryan’s testimony because of an inadequate predicate that the trial court was adequately apprised of the basis of appellant’s objection. Zillender v. State, Tex.Cr.App., 557 S.W.2d 515. The trial court’s failure to grant appellant’s objection after the testimony of the technical supervisor failed to establish the predicate for Officer Bryan’s testimony concerning the results of the breathalyzer examination constitutes error. French v. State, supra; Cody v. State, Tex.Cr.App., 548 S.W.2d 401; Palafox v. State, Tex.Cr.App., 509 S.W.2d 846; Reyna v. State, Tex.Cr.App., 508 S.W.2d 632; Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93. The error is reversible since the trial court, in its charge to the jury, instructed them on the presumption of intoxication provided for under Article 67017-5, V.A.C.S.

The judgment of conviction is reversed and the cause remanded.

      . THE COURT: Testimony with records to the breathalyzer be stricken from the record?
      MR. McCULLOM: Yes, sir.
      THE COURT: I will sustain that.
      MR. MADDEN: Now, Judge, the testimony, I don’t think should be stricken. Now, in the charge to the jury, I think he has a valid point that it should not be admitted into the charge.
      THE COURT: I concur. Are you — are you not doing something indirectly that, by French v. State, you can’t do directly?
      THE REPORTER: By what, Judge?
      MR. McCULLOM: I am going to make a motion—
      THE COURT: French v. State. (Addressing the reporter.)
      The first time that the defense counsel has asked it be stricken—
      MR. LONGORIA: Well, Judge, we’re introducing this as a matter of testimonial evidence for the jury to consider.
      THE COURT: French v. State, says, without testimony as to the proper compounding of the chemicals, without testimony as to whether or not the breathalyzer was checked on periodic intervals and found to be in proper working order that such is inadmissible.
      MR. MADDEN: I agree with you, Judge.
      THE COURT: Anything further? I will so instruct the jury when they come back that the testimony with regards to the result of the breathalyzer test be stricken from the record.

      . The technical supervisor’s testimony showed that he had inspected breathalyzer machine number 900A-0331031. State’s Exhibit No. 1 showed breathalyzer machine number 003011700 was used to examine appellant. “900A” is the model number.


source: Caselaw Access Project

author: PHILLIPS, Judge. DALLY, Judge,

license: Public Domain

text:
    Daniel Craig COOPER, Appellant, v. The STATE of Texas, Appellee.
    No. 55445.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 21, 1979.

      G. Bert Smith, Jr. (on appeal only), Andrews, for appellant.
    John H. Green, Dist. Atty. and Dennis Cadra, Asst. Dist. Atty., Odéssa, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for delivery of amphetamine. The penalty, upon proof of a prior final felony conviction, was assessed at 20 years’ imprisonment and a $10,000.00 fine.

Appellant’s first ground of error challenges the trial court’s exclusion of a defense witness’s testimony as a violation of his Sixth Amendment (U. S. Constitution) rights. After the State concluded its casein-chief consisting of the undercover narcotic agent, Jerry Davis, and a chemist, the defense called Ronnie Hammond. It was disclosed on the record that this witness had entered the courtroom after the rule to sequester witnesses (Article 36.03, V.A.C.C.P.) had been invoked by appellant and relevant instructions given by the judge, and had been present for the presentation of the State’s case. His testimony related to a sale of white pills made by the undercover agent to the appellant at the University Lounge at around 11:30 p. m. or 12:00 midnight on the date of the charged offense and after the alleged delivery of amphetamine by appellant to the agent. The latter transaction occurred at a table occupied by five persons — appellant, witness Hammond, Lynn Reed, Steve Matteson, and Agent Davis. Appellant’s trial counsel argued that Hammond’s testimony was important impeachment evidence in light of Agent Davis’s denial of any such transaction in the course of his cross-examination. The trial court excluded Hammond as a witness because (1) he violated the sequestration rule and (2) his testimony constituted impeachment of Agent Davis on collateral matters.

The trial court was in error concerning his second reason for exclusion of the testimony. Binnion v. State, Tex.Cr.App., 558 S.W.2d 485, involved the same undercover agent and impeachment testimony. There the exclusion of such evidence was deemed reversible error because evidence relating to drug use and sale by the accusing undercover agent was important to the jury’s determination of credibility and the agent’s denial of such use or sale was not a minor part of his testimony. This Court relied on Montemayor v. State, 543 S.W.2d 93. When the guilt of the accused turns on the evidence of a single witness, the general rule against impeachment on collateral matters must not be so rigidly applied as to shield that witness from a piercing credibility review by the fact-finder. Besides, in a drug sale prosecution, drug transactions by the condemning witness are not so clearly collateral.

However, there remains the first reason for excluding witness Hammond—violation of the witness sequestration rule. The trial court’s enforcement of that rule is largely discretionary. Miller v. State, Tex.Cr.App., 455 S.W.2d 253; Berry v. State, Tex.Cr.App., 477 S.W.2d 284; Brown v. State, Tex.Cr.App., 523 S.W.2d 238. Appellant insists that the trial court’s ruling here violated his Sixth Amendment right to compulsory process for witnesses and relies on Braswell v. Wainwright, 463 F.2d 1148 (5th Cir. 1972). Upon a review of that case and the authorities cited therein, we do not believe its ruling applies in the case before us.

In Braswell, as here, the witness excluded had apparently innocently violated the witness sequestration rule, and there was no indication of the petitioner’s active or knowing involvement in its violation. The similarities end there. The witness excluded in Braswell was the only witness who could corroborate Braswell’s self-defense version of events giving rise to the aggravated assault charges. Braswell and the witness were strangers to the barroom scene while the State’s witnesses were a familiar group to each other. The panel in Braswell limited its decision to “the particular and extraordinary circumstances of this case . . .” (Id. at 1156) and noted that the trial court’s action deprived Bras-well of the opportunity to present a defense. Such action was termed fundamentally unfair.

Here the witness Hammond would not corroborate a defensive theory as found in Braswell, although his testimony lends some indirect credence to appellant’s denial of delivering amphetamines to Agent Davis. Hammond’s testimony was impeaching in nature. Further, the exclusion of Hammond’s testimony did not foreclose the presentation of the admissible impeachment evidence since two other persons were present at the time of the latter transaction. Steve Matteson, whom Agent Davis identified as a co-defendant of appellant’s in this case and who was acquitted prior to this trial, was not called. Lynn Reed, whom appellant identified as the fourth person present while he transported Matte-son and Agent Davis to the Cactus Motel where the exchange occurred, was not called. Both persons were identified by Hammond as being present during Davis’s alleged sale of white pills to appellant in the University Lounge.

We conclude that under the “particular circumstances” of this case the trial court’s exercise of discretion in enforcing the witness sequestration rule did not violate appellant’s Sixth Amendment rights secured to him through the Fourteenth Amendment. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); cf. Holder v. U. S., 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893); U. S. v. Schaefer, 299 F.2d 625 (7th Cir. 1962). Neither did it deprive appellant of a fair trial. See Amendments V and XIV, U.S. Constitution; Article I, Sections 10 and 19, Texas Constitution. No abuse of discretion has been shown. Appellant’s first ground of error is overruled.

Appellant’s second ground of error complains of several remarks made by the prosecutor during his argument to the jury at the punishment stage of the trial. In discussing that portion of the charge which precludes the jury from discussing how long the defendant would be required to serve any penalty they assessed, the prosecutor stated:

. This man has been to prison before, he was sentenced to two years in prison and he served one year in prison.

Appellant’s timely objection was overruled, but the trial court instructed the jury that they were not to consider how long appellant would actually serve. The record indicates that appellant previously testified that he spent a year in the penitentiary on three drug convictions. The prosecutor also promptly withdrew his argument as well. In light of the proceedings reflected by the record, we conclude that the error, if any, was sufficiently cured by the trial court’s prompt instruction to the jury. See Parish v. State, Tex.Cr.App., 523 S.W.2d 665. We do note, however, our strong disapproval of such arguments, even when couched in the context of explaining the court’s charge on limiting the jury’s consideration of parole matters, and reaffirm our decision in Clanton v. State, Tex.Cr.App., 528 S.W.2d 250, cited by appellant. However, the argument here is not nearly as egregious as that shown in Clanton.

Later the prosecutor argued:

. . . .And I am not going to sit up here and argue 20 years because you know I don’t have to. That man got himself 20 years. And not only 20 years, but I think you should assess a $10,000.00 fine. Make him pay back some of that money he got. And I submit to you he will be down there for a little while and he will be back out.

(Emphasis added)

The trial court sustained appellant’s objection, instructed the jury to disregard the comment, and reread the portion of the charge dealing with the parole law. The trial court’s instruction cured the error. See Jackson v. State, Tex.Cr.App., 552 S.W.2d 798; Rodriguez v. State, Tex.Cr.App., 552 S.W.2d 451; Parish v. State, supra. However, we again condemn such arguments. See Clanton v. State, supra.

The appellant complains of other remarks made by the prosecutor, but nothing was preserved for review since appellant failed to make any objections to those remarks. Smith v. State, 541 S.W.2d 831; Boykin v. State, Tex.Cr.App., 516 S.W.2d 946.

Appellant’s second ground of error is overruled.

Appellant’s third ground of error complains of an improper “have you heard” question propounded to one of his character witnesses in that such question implied that the appellant had committed the offense inquired about.

Q All right. Now, I want to ask you another question. Have you heard that twelve days ago on the 8th 1976—
MR. HARDWICK: Your Honor, I object.
THE COURT: Just a minute.
MR. HARDWICK: Your Honor, I would like to approach the Bench.
(Discussion held at the Bench out of the hearing of the Reporter and the jury.)
THE COURT: I will overrule your objection.
MR. HARDWICK: Note our exception.
Q All right. Back to the question I was fixing to ask you. Have you heard that twelve days ago on the 8th and 19th, ’76 Cooper’s car, a maroon ’71 Chevrolet, license number BU 892, which he was driving, was stopped in the 1400 block of West Fifth Street here in Odessa, Ector County, Texas, a plastic bag containing seven packages of hashish was found in that car, have you heard that?
A No, sir.

The record reflects a general objection to an innocuous question and no further objection to the question as fully developed. No grounds are given for the appellant’s objection. In order to preserve error, an objection must be timely made and the grounds of the objection must be stated. In the case at hand, error has not been preserved. See Braxton v. State, Tex.Cr.App., 528 S.W.2d 844; Vela v. State, Tex.Cr.App., 516 S.W.2d 176; Lewis v. State, Tex.Cr.App., 503 S.W.2d 806. Appellant’s third ground of error is overruled.

There being no reversible error, the judgment is affirmed.

DALLY, Judge,

concurring.

I concur in the affirmance of the judgment, but I disagree with the majority in its discussion and holding concerning the impeachment of a witness on a collateral matter.

Appellant’s initial complaint concerned his attempt to impeach the State’s chief witness, Jerry Davis, a former undercover narcotics agent. Davis testified that at 10:30 one night at the University Lounge in Odessa he made a deal with appellant and appellant’s companion, Steve Matteson, to purchase some amphetamine pills. Davis said the three left the lounge and went to the Cactus Motel, where he paid $210.00 and received six hundred pills; the three then returned to the lounge. On cross-examination by the defense counsel, Davis testified that one Lynn Reed was not at the lounge that night, and that he (Davis) did not sell appellant any .drugs that night. Appellant’s counsel then attempted to call Ronald Hammond as a witness to impeach Davis’ testimony which defense counsel had elicited on cross-examination. The State objected because Hammond had been in the courtroom during Davis’ testimony in violation of the Rule, which appellant had invoked. The trial court refused to permit Hammond to testify before the jury; however, on appellant’s bill of exception Hammond testified that Lynn Reed had been present at the University Lounge that night, and that he (Hammond) had witnessed Davis sell appellant six amphetamine pills at the lounge at 11:30 or 12:00 on the night in question.

Appellant urges that he was denied his Sixth Amendment right to the testimony of a witness in his behalf when the trial court refused to allow Hammond to testify. Appellant also argues that Hammond’s testimony was improperly excluded under our decisions in Montemayor v. State, 543 S.W.2d 93 (Tex.Cr.App.1976), and Binnion v. State, 558 S.W.2d 485 (Tex.Cr.App.1977). I would not reach appellant’s constitutional claim, because Hammond’s testimony was not admissible. Consequently, appellant was not denied his right to obtain the testimony of a witness.

When a witness is cross-examirted on a collateral matter, the cross-examining party cannot then contradict the witness. The test as to whether a matter is collateral is whether the cross-examining party would be entitled to prove the matter as part of his case tending to establish his plea. Bates v. State, Tex.Cr.App. (No. 58,338, decided 1/10/79); Arechiga v. State, 462 S.W.2d 1 (Tex.Cr.App.1971); Gatson v. State, 387 S.W.2d 65 (Tex.Cr.App.1965). See also 3A Wigmore on Evidence, Secs. 1001-1003 (Chadbourn rev. 1970); 2 Wharton’s Criminal Evidence, Sec. 467 (13th ed. 1972); 1 Branch’s Penal Code, 2d ed. 221, Sec. 200.

The correct rule was well stated and applied by Judge Roberts in Arechiga v. State, supra, as follows:

“In Gatson v. State, Tex.Cr.App., 387 S.W.2d 65, this Court held that when a witness is cross-examined on a collateral matter even to impeach his testimony, the cross-examining party cannot then contradict the witness. The test as to whether a matter is collateral is whether the cross-examining party would be entitled to prove it as a part of his case tending to establish his plea
“If appellant as a part of his direct evidence, had tried to prove that Serna was in the state hospital on a particular date it would have been inadmissible. The Court, in excluding the inadmissible evidence, in no way violated the due process clause of the Fourteenth Amendment to the United States Constitution as alleged by appellant . . . ”

In this case the facts about which Hammond would have testified were collateral to the issue whether appellant sold Davis amphetamine. Appellant’s defense was that, although he was present when the amphetamine was sold to Davis at the Cactus Motel, he did not take part in the transaction, and thus was not a party to the offense. Hammond was not present at the Cactus Motel. He said he saw Lynn Reed at the University Lounge, but did not see him leave or return with appellant, Matte-son, and Davis. The mere presence of Reed at the lounge on the night in question is not evidence relevant to appellant’s defense. Davis’ alleged sale of amphetamine to appellant also took place at the University Lounge and occurred subsequent to the commission of the offense with which the appellant was charged. Thus, it concerns a separate incident and does not tend to prove appellant’s defense.

Montemayor v. State, supra, and Binnion v. State, supra, are in conflict with Bates v. State, supra; Arechiga v. State, supra, and Gatson v. State, supra. Montemayor v. State, supra, and Binnion v. State, supra, should be promptly overruled.

I concur in the affirmance of the judgment.


author: W. C. DAVIS, Judge.

text:
    Leon Darrel ANNIS, Appellant, v. The STATE of Texas, Appellee.
    No. 56086.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 21, 1979.
    Thomas A. Autry, Austin, for appellant.

      James L. McMurtry, County Atty., and John D. Roberts, Asst. County Atty., Robert Huttash, Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

Appeal follows a conviction for driving while intoxicated. Vernon’s Ann.Civ.St., Article 67011-1. The court assessed punishment at thirty days’ confinement, probated for eighteen months and a two hundred dollar fine. Three grounds of error are presented for review. We affirm.

In his second ground of error, appellant challenges the sufficiency of the evidence to establish the essential element of intoxication. Appellant claims that the opinion testimony of the arresting officer, standing alone, does not establish intoxication. Further, it is urged that a chemical breath test administered one hour and twenty minutes after appellant’s arrest, showing a 0.12 per cent alcohol content, has no meaning on the issue of appellant’s intoxication at the time of the arrest.

Trooper Martin, the arresting officer, testified that he formed an opinion as to appellant’s intoxication prior to and independent of the “breathalyzer” test. Supporting this independent opinion, Trooper Martin stated that while following appellant’s vehicle he noticed the vehicle swerve across a lane-dividing stripe several times. When Trooper Martin attempted a traffic stop, appellant pulled into the parking lot of a tavern and parked. Approaching appellant, Trooper Martin observed that appellant appeared disorderly and that his speech was “mush-mouthed.” Appellant’s eyes were red and his breath smelled of alcohol. Further, Appellant swayed from side to side when walking or standing.

Trooper Martin was an experienced Texas Highway Patrol Officer and had on numerous occasions observed persons under the influence of alcoholic beverages. Based on his experience and the observed facts, Trooper Martin concluded that appellant was intoxicated while operating a motor vehicle. This testimony, considered in the light most favorable to the verdict, is sufficient to establish the element of intoxication. Whisenant v. State, 557 S.W.2d 102 (Tex.Cr.App.1977); McGuire v. State, 537 S.W.2d 26 (Tex.Cr.App.1976); Bentley v. State, 535 S.W.2d 651 (Tex.Cr.App.1976).

We find no merit in appellant’s argument that a “breathalyzer” test administered one hour and twenty minutes after his arrest is of “no meaning.”

Witnesses for the State testified that once alcohol is consumed, a period of thirty minutes to one hour passes before that alcohol would show up in a chemical breath test. Therefore, appellant argues, a test delayed by an hour could possibly show a higher level of alcohol because of the time gap between point of consumption and the point at which the alcohol is absorbed into the system.

Appellant is concerned with the situation where a person’s alcohol content is just below the presumed level of intoxication. This person has a drink containing alcohol and then is arrested. If the breath test were administered immediately, the alcohol from the last drink would not show up and the individual would still be below the presumed level of intoxication. However, a delay of an hour before administering the test would permit the last drink to have been absorbed and thus would produce a higher result in the test; perhaps over the presumed level of intoxication.

Appellant’s argument might be meritorious if the results of a chemical breath test were the only evidence of his intoxication. However, with the opinion testimony of Trooper Martin, such an argument need not detain us.

The facts and argument of appellant fit within our holding in Dorsche v. State, 514 S.W.2d 755 (Tex.Cr.App.1974). There we considered an attack on the sufficiency of the evidence to establish intoxication in a prosecution for murder without malice committed by driving a motor vehicle while intoxicated. As here, the evidence in Dorsche consisted of the testimony of the arresting officer and the results of a chemical breath test. The breath test was administered two hours and fifteen minutes after the arrest of the defendant and showed an alcohol content of 0.10 per cent. The arresting officer, a veteran highway patrol officer, testified as follows:

“I observed that he (defendant) had a strong odor of an intoxicating beverage about his person . . . His speech was slurred ... He swayed from side to side and I would described his turning movements as unsure.”

From these observations, the officer concluded that the defendant was intoxicated.

In Dorsche, we held that while the issue of intoxication may have been disputed, the jury, having heard the evidence, resolved the dispute against the defendant. Likewise, appellant disputed the allegation of intoxication, but after hearing sufficient evidence the jury resolved the issues against appellant. Ground of error two is overruled.

In ground of error one, appellant complains of a variance between the complaint and the information because the complaint omits a recitation of the credibility of the person making the complaint.

The complaint charges:

“. . . on this day personally appeared W. L. Hart, who after being sworn, on oath deposes and says (that he has good reason to believe and does believe and charge) that heretofore . .”

The information reads as follows:

“. . .on the written affidavit of W. L. Hart a competent and credible person herewith filed in the County Court . . ”

Appellant urges that the failure of the complaint to recite the credibility of W. L. Hart is fatal. We do not agree.

Article 21.22, Vernon’s Ann.C.C.P. requires:

“[that] no information shall be presented until affidavit has been made by some credible person charging the defendant with an offense.”

Article 21.22 does not require a recitation of credibility in either the charge or the information. Rather, the requirement is that the complaint must rest on the affidavit of a credible person and the affidavit does not have to allege the credibility of the affiant. See Woods v. State, 499 S.W.2d 328 (Tex.Cr.App.1973).

There is no fatal variance between the complaint and information. Ground of error one is overruled.

In his final ground of error, appellant complains that the State committed reversible error by calling attention to appellant’s failure to testify.

To determine if the State’s argument was a comment on the failure of the appellant to testify, we must examine the language used from the viewpoint of the jury. McDaniel v. State, 524 S.W.2d 68 (Tex.Cr.App.1975). If the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on appellant’s failure to testify, the argument is error. Bird v. State, 527 S.W.2d 891 (Tex.Cr.App.1975).

The comments complained of are as follows:

“. . . nobody testified to you about the rate of consumption of alcohol. Who could have?
“We don’t know if there were 5 drinks consumed, ten drinks consumed, no drinks consumed .
“Now the fact that (appellant) did not testify is proper. You were instructed before and I’m asking you not to consider it now. He has that right, don’t consider it against him that he did not testify. Please don’t. But you do have a right to know all the facts to make your job as easy on you as possible.”

We do not find these comments to be directed toward the failure of appellant to testify under the test in Bird, supra. These comments were not of such a character as to require the necessary conclusion that the State was directing attention to the failure of appellant to testify.

The record clearly reflects that several defense witnesses were sworn and placed under the Rule in front of the jury. Further, the jury knew that appellant’s son was present at the time appellant was arrested. In the face of such facts, the comments by the State were permissible; pointing out that witnesses who could have supported appellant were not called. Gorman v. State, 480 S.W.2d 188 (Tex.Cr.App.1972).

The judgment is affirmed.

      . Appellant contends that law enforcement officers should administer two breath tests to persons suspected of intoxication to determine if the suspect is still accumulating alcohol from drinks within an hour of the test. We do not, as a matter of law or policy, require such a procedure. We notice that appellant was advised, in the warning given by Trooper Martin, that a competent doctor or nurse of appellant’s choice could, within a reasonable time, administer additional tests.


author: ROBERTS, Judge.

text:
    Charles Waymon TUCKER, Appellant, v. The STATE of Texas, Appellee.
    No. 56090.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 21, 1979.

      Tom A. Boardman and Lawrence B. Mitchell, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Ronald D. Hinds, Tom F. Lillard and Sue Lagarde, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

A jury found the appellant guilty of theft of a truck and trailer of the value of $10,-000 or more. The trial court assessed punishment at seven years’ confinement. The appellant presents one ground of error: the refusal of the trial court to reopen testimony-

The appellant, who did not testify, presented two witnesses who testified that they had entrusted property to the appellant in business dealings which proved satisfactory. Treating the witnesses as character witnesses, the State sought to impeach their testimony by asking “have-you-heard” questions. (The appellant did not object to this method of impeachment, and we do not express any opinion on the question of whether this method was properly available.) Each witness was asked if he had heard that the appellant had defrauded Hutchins Truck Leasing out of $50,000 while doing business with them in 1976; one witness said he had heard there was a charge of that; the other witness had not heard of it. Each witness was asked if he had heard that the appellant was involved in stealing a Ditch-Witch machine and transporting it to Michigan in December of 1976; neither witness had heard of this. Very shortly after the second of these witnesses was excused, both parties rested and closed, and court was recessed for the day.

The next morning, the appellant presented his written motion to reopen. The motion alleged that two witnesses had been located overnight. One witness, who had been subpoenaed and was expected “momentarily,” would testify that he had been the manager of Hutchins Truck Leasing in 1976 and that the appellant had not defrauded that company. The other witness, who was present, would testify that he transported a Ditch-Witch to Michigan, that the appellant merely acted as a broker, and that the appellant did not know the load was a Ditch-Witch or that it was stolen. The trial court denied the motion, and proceeded to charge the jury. Later the appellant questioned the witnesses to make a bill of exception showing what their testimony would have been. (The State argues that the testimony would not have established what the appellant expected. Because of our holding below, we need not address this question.)

Article 36.02 of the Texas Code of Criminal Procedure states the rule for reopening evidence: “The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.” If the evidence was admissible (irrespective of its weight, its probative value, or its cumulative character), and if it was offered before the charge was read, it will be reversible error to refuse the request to reopen for its receipt, unless it appears its introduction would have impeded the trial or interfered with the due and orderly administration of justice. Vital v. State, 523 S.W.2d 662 (Tex.Cr.App.1975). It will be noted that the first requirement is that the evidence have been admissible. It is not error to refuse to reopen for inadmissible evidence. 23 C.J.S. Criminal Law, § 1056b; cf. Potett v. State, 126 Tex.Cr.R. 398, 72 S.W.2d 283 (1934). In this case the proffered evidence was inadmissible because it was immaterial.

The appellant argues that he should have been allowed to “explain and mitigate the allegations of the State’s questions which had implied that Appellant may have been involved in previous acts of misconduct.” He cites Stiles v. State, 91 Tex.Cr.R. 461, 239 S.W. 963 (1921), which held that, when any fact material to the issue is introduced by one side, the other side has a right to deny, contradict, or explain such testimony, showing its falsity or breaking its force and effect in any legitimate way. In this case, the State had not introduced any fact which the appellant could refute by the proffered testimony. The function of the “have-you-heard” question is to test the knowledge of the character witness who testifies about another’s reputation, and the consequent accuracy and reliability of his testimony; it is not to establish the truth of the acts with which the questions deal. 62 Texas Jurisprudence 2d Witnesses, Section 196; Brown v. State, 477 S.W.2d 617 (Tex.Cr.App.1972). It is improper for a “have-you-heard” question to imply that the acts inquired about have, in fact, occurred. Sisson v. State, 561 S.W.2d 197 (Tex.Cr.App.1978). Whether or not the act inquired about in fact occurred is not an issue for the jury.

The propriety of a “have-you-heard” question is one of law, not a material issue of fact. The appellant did not avail himself of legal objections. He did not object to the questions on the ground that they improperly injected an assertion of fact. He did not request an instruction to the jury to disregard the questions. Cf. Carey v. State, 537 S.W.2d 757 (Tex.Cr.App.1978). He did not seek to demonstrate to the court that the questions were asked in bad faith. Cf. Hart v. State, 447 S.W.2d 944 (Tex.Cr.App.1969).

The State did not offer proof of the acts it inquired about. There was no fact issue before the jury to which the proffered evidence was material. The evidence being immaterial, it was inadmissible, and it was not error to refuse to reopen for such inadmissible evidence.

The judgment is affirmed.


author: TOM G. DAVIS, Judge.

text:
    Robert Wayne GREEN, Appellant, v. The STATE of Texas, Appellee.
    No. 57202.
    Court of Criminal Appeals of Texas, Panel No. 3.
    March 21, 1979.

      John A. Brady, Fort Worth, on appeal only, for appellant.
    Robert J. Glasgow, Dist. Atty., Stephen-ville, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction of criminal mischief resulting in a loss greater than $20 but less than $200. V.T.C.A.Penal Code, Sec. 28.03. Punishment was assessed at 90 days and a $1,000 fine.

Appellant was indicted for criminal mischief resulting in a loss greater than $200 but less than $10,000, a third degree felony. After trial in district court he was found guilty of the lesser included Class A misdemeanor.

Appellant argues that the indictment was fundamentally defective. No motion to quash the indictment was made in the trial court.

The indictment in pertinent part reads as follows:

“The Grand Jurors for the County of Palo Pinto, State of Texas, duly selected impaneled, sworn, charged and organized as such at the October Term, A.D.1976, of the 29th Judicial District Court of said County, upon their oaths present in and to said Court, that Robert Wayne Green, on or about the 21st day of August, A.D. 1976, and before the presentment of this indictment, in said County and State, did then and there intentionally damage and destroy tangible property of Christine Rogers, the owner, to wit: one (1) native rock fence located at the residence of Christine Rogers, said residence being seven (7) miles North of Palo Pinto County, Texas, at a place commonly known as Dark Valley Camp, and did thereby cause pecuniary loss in the amount of more than $200.00 but less than $10,000.00 to the said Christine Rogers, without the effective consent of the owner, Christine Rogers, . . . .” [Emphasis added.]

Appellant points out that the latter portion of the indictment emphasized above puts the place of the offense outside of Palo Pinto County. The State responds that the language “ . . . in said County and State, did then and there . . . ” is sufficient to allege that the offense occurred in Palo Pinto County. The evidence reflects that the residence was in fact located seven miles north of the city of Palo Pinto in Palo Pinto County.

Recent decisions of this Court have changed the focus as to the requisites of an indictment in regard to fundamental error. American Plant Food Corp. v. State, 508 S.W.2d 598; Ex parte Cannon, 546 S.W.2d 266; Rhodes v. State, 560 S.W.2d 665; Seaton v. State, 564 S.W.2d 721. It is in light of these cases that we must review the sufficiency of the indictment.

Article 21.09, V.A.C.C.P., sets out the requisite particularity with which a description of property must be pled in an indictment. Article 21.09, supra, provides:

“Description of Property
“If known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice. If the property be real estate, its general locality in the county, and the name of the owner, occupant or claimant thereof, shall be a sufficient description of the same.” [Emphasis added.]

This Court discussed the application of Art. 21.09, supra, to a description of property other than real property in Rhodes v. State, 560 S.W.2d 665. This Court held that:

“Consequently, we hold that a defect in the description of property under Art. 21.09, supra, must be raised by a motion to quash, and may not be raised for the first time on appeal, unless the description is so deficient as to be no description at all and to constitute a jurisdictional defect, as was the case in Willis, supra [544 S.W.2d 150].”

In Rhodes, the indictment described the property as “wall paneling.” The Court held that although “wall paneling” was not as detailed a description as required by Art. 21.09, supra, it was sufficient to allege that element of theft for the purposes of invoking the jurisdiction of the court.

In American Plant Food, supra, this Court very succinctly stated the focus or our inquiry into a charging instrument’s sufficiency. “If the charge alleges an offense was committed by the defendant, then it is sufficient in law to support a verdict of guilty if one be rendered thereon.” 508 S.W.2d at 603.

Thus, our inquiry in the present case is whether the indictment alleged that an offense was committed. If the indictment did allege an offense, any objection would be to form rather than substance, and therefore not a fundamental defect. American Plant Food Corp. v. State, 508 S.W.2d at 603-04.

The indictment in the present case described the property destroyed as:

1. Tangible property
2. owned by Christine Rogers
3. located at her residence
4. that residence being seven miles north of Palo Pinto County
5. at a place commonly known as Dark Valley Camp.

Regardless of whether this description was correct, it was a sufficient description of the property to allege that requisite element of the offense as required by Art. 21.09, supra. A variance between the allegations and proof does not render the indictment fatally defective, but instead would go to the sufficiency of the evidence to prove the offense. Seiffert v. State, 501 S.W.2d 124.

Since the description of the property was sufficient to allege that element of the offense, any exception went to form rather than substance. As the Court held in Rhodes, such exception must be raised in a motion to quash.

The allegations contained in the indictment are also sufficient in regard to venue. The indictment first correctly alleges venue, and then alleges a location inconsistent to that venue. Thus, rather than failing to make a necessary allegation, the indictment contains conflicting allegations. Again, unless the indictment fails to allege a necessary averment, an objection goes to form rather than substance.

We hold that the indictment was not fundamentally defective.

Appellant also challenges the sufficiency of the evidence to prove the allegation that the fence was seven miles north of Palo Pinto County. Appellant maintains that this was a fatal variance between the pleadings and proof. The State maintains that this allegation was surplusage, and as such the State had no burden to prove that allegation.

The State properly frames the issue presented. We must determine whether the allegation that the property was “seven miles north of Palo Pinto County” was sur-plusage.

The test to determine what is or is not surplusage, and subsequently what the State must prove to convict under a particular indictment, was set out in Cohen v. State, 479 S.W.2d 950. The Court observed that:

“ ‘When a person, place or thing necessary to be mentioned in an indictment is described with unnecessary particularity, all the circumstances of description must be proved and cannot be rejected as sur-plusage for they are thus made essential to identity.’ Therefore, the allegation as to the place where the transportation occurred being necessary, the unnecessary particularity must be proved. Hardy v. State, 162 Tex.Cr.R. 166, 283 S.W.2d 234 (1955); Dugan v. State, [159 Tex.Cr.R. 364,] 264 S.W.2d 120 (1954); Franklin v. State, 157 Tex.Cr.R. 177, 247 S.W.2d 562 (1952); Royal v. State, 155 Tex.Cr.R. 468, 236 S.W.2d 618 (1951); Staley v. State, 154 Tex.Cr.R. 546, 229 S.W.2d 170 (1950); McElroy v. State, 154 Tex.Cr.R. 20, 224 S.W.2d 715 (1949).
“Where the allegation is not a necessary part of the pleading, the particularity of description is surplusage and need not be proved. Malazzo v. State, 165 Tex.Cr.R. 441, 308 S.W.2d 29 (1957).”

479 S.W.2d at 951.

Most recently, in Burrell v. State, 526 S.W.2d 799, and Davis v. State, 532 S.W.2d 626, this Court discussed when an allegation is surplusage and can be disregarded. Although these cases involved the amendment of the indictment before trial, the issue is the same. Here, as in Burrell and Davis, we must determine whether a specific allegation is legally essential to the indictment, descriptive of what is legally essential, or instead, surplusage.

In Burrell v. State, supra, the Court extensively reviewed the existing authorities on surplusage and amendment of an indictment before trial. The Court concluded that, regardless of whether the allegation was legally essential to charge the offense, if the allegation was descriptive of an element legally essential to the offense, it is not surplusage. 526 S.W.2d at 803-04.

In Davis v. State, supra, the Court reviewed an indictment for aggravated robbery with pre-trial amendment made as follows:

“. . . while in the course of committing theft of one automobile, Four Hundred Fifty Dollars ($450,00) current money- of the United-States of America, hereinafter called ‘the Property’ from William T. Miller with intent to obtain and maintain control of the property, and by using and exhibiting a deadly weapon, namely a knife knowingly and intentionally threaten and place William T. Miller in fear of imminent bodily injury and death.”

The Court held proof that either the car or the money had been taken would be sufficient to support a conviction. The Court concluded that the deletion as set out above was proper as it did not amend the substance of the indictment.

More important to our discussion here, however, is the Court’s observations in regard to prior decisions. The Court distinguished Davis from previous cases in that “the offense charged in the instant ease was not changed nor was the burden of proof decreased by deletion.” 532 S.W.2d at 630.

In the present ease, disregarding the allegation that the residence “was seven miles north of Palo Pinto County” does not change the State’s burden of proof or the nature of the offense charged. The State was still required to prove what was legally essential to the indictment under Art. 21.09, supra.

Article 21.09, supra, requires that the State prove the owner and the general locality in the county. The State had alleged that the property was a native stone fence, that the owner was Christine Rogers, and that its general locality was Dark Valley Camp. These allegations were descriptive of what is legally essential to the indictment. The allegations that the property was located at the owner’s residence and the location of that residence were not descriptive of what was legally essential under Art. 21.09, supra.

We hold that the allegation was surplus-age, and could be disregarded. We find the evidence sufficient to support the conviction.

The judgment is affirmed.

      . Prior decisions of the Court have held that inconsistent allegations in the same count of an indictment render that indictment defective. Johnson v. State, 149 Tex.Cr.R. 245, 193 S.W.2d 528; Odle v. State, 139 Tex.Cr.R. 288, 139 S.W.2d 595; Graham v. State, 139 Tex.Cr.R. 98, 139 S.W.2d 269. The cases were all decided prior to the cases cited above in the text. Insofar as they conflict with this decision, they are overruled.

      . The charging instrument in American Plant Food was an information and complaint. The law regarding the sufficiency of an information and complaint, and of an indictment, is the same insofar as our discussion here is concerned. Art. 21.23, V.A.C.C.P.

      . American Plant Food discussed other requisites of a charging instrument which we are not concerned with here. We do not intend our discussion to be construed as to in any way alter those requirements.


text:
    Crispin TIJERINA, Appellant, v. The STATE of Texas, Appellee.
    No. 57205.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 21, 1979.

      Laird Palmer, Austin, for appellant.
    James L. McMurtry, County Atty., and J. Randall Walker, Asst. County Atty., Austin, Robert Huttash, State’s Atty., Austin, 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 unlawfully carrying a handgun. V.T.C.A. Penal Code, Sec. 46.02. Trial was before the court upon a plea of not guilty and punishment was assessed at a fine of $105.00.

At the outset appellant contends that the court erred in overruling his objection to the admission of the gun in evidence.

Officer Jones of the Austin Police Department testified that while he was on patrol in the early morning hours of July 18, 1975, he observed a vehicle in the parking lot between a bar and a shoe store on East 7th Street in Austin. The door of the vehicle was open and Jones noted “a pair of legs hanging out of the driver’s door.” Upon investigation it was determined that a person later identified as appellant “was sprawled on the front seat, his billfold was laying, I believe beside him, it was either beside him or on the floor and it was opened.” Jones further testified “first of all what went through my mind was that he had been robbed or possibly stabbed or something like that.” Jones tried to arouse the man to no avail and in the course of making such an attempt detected an odor of alcohol. After Jones finally was able to get appellant “to come around a little bit” he got him out of the car. The officer found no evidence of “injury or anything like that.” Jones determined that appellant was in a state of intoxication and felt “that he might be possibly in some sort of danger or need some protection.” Jones arrested appellant. and in frisking him found what “felt like a gun in his right front pocket.” Upon further search of appellant a handgun was removed from his pocket.

Appellant urges that he was under arrest when the officer seized his body and removed it from the car. Since the officer did not determine until after he had removed appellant from the car that he was intoxicated and a danger to himself, appellant argues that the arrest was without probable cause and that the gun seized in a search incident thereto was the result of an unlawful search.

We find that Officer Jones’ action was proper in removing appellant from the vehicle under the “emergency” or “exigent circumstances” doctrine. See Perez v. State, 514 S.W.2d 748; Corbett v. State, 493 S.W.2d 940. The officer observed appellant sprawled out on the seat of a car with his legs hanging out the door of the vehicle in the early morning hours. When the officer was unable to arouse him it was logical for the officer to conclude that appellant may have been the victim of an attack. An opened billfold beside him lent further credence to this theory. As was noted in Perez v. State, supra, a search of a person found in an unconscious condition is necessary and reasonable. The rapid discovery of a medical history carried on the person of one found to be unconscious might save his life. In the instant case if appellant had been the victim of a robbery and had been stabbed or physically harmed, the discovery of the injury by the officer could have resulted in treatment which may have saved his life. We reject appellant’s argument that the action of the officer in removing him from the car constituted an illegal arrest. After appellant was removed from the vehicle the officer determined that he was intoxicated and a danger to himself. Appellant was arrested and the search incident thereto which resulted in the seizure of the gun was legal.

Appellant contends that the evidence is insufficient to sustain the conviction.

Appellant argues that the officer’s testimony that appellant was so drunk that he was “unconscious” negates the necessary elements of the offense that appellant “knowingly and intentionally” carried the handgun.

In Ramos v. State, 547 S.W.2d 33, the defendant urged that he was intoxicated to such an extent that he failed to have the requisite intent necessary to commit a burglary. In rejecting such argument, this Court noted that under V.T.C.A. Penal Code, Sec. 8.04, voluntary intoxication is not a defense to the commission of a crime, but may be relied upon as a mitigating factor at the punishment phase of the trial. See Hart v. State, 537 S.W.2d 21. We find no merit in appellant’s contention.

The judgment is affirmed.


text:
    John Brent TARLTON, Jr., Appellant, v. The STATE OF Texas, Appellee.
    Nos. 57833-57837.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 21, 1979.
    Alex P. LeFeuvre (on appeal only), Snyder, for appellant.
    George R. Killam, Jr., County Atty., Snyder, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

These five causes are all appeals from misdemeanor convictions for driving while intoxicated. See Article 67011-1, V.A.C.S. The penalties assessed in the respective causes are as follows: six months’ imprisonment and $50.00 fine; two years’ imprisonment and a $500.00 fine, probated; 3 days’ imprisonment and a $100.00 fine; three days’ imprisonment and a $100.00 fine; and three days’ imprisonment and a $200.00 fine.

Appellant presents one ground of error in all five causes which contends that the trial court reversibly erred in failing to sustain his exception to the complaint and information because he was not afforded a hearing before a neutral and detached magistrate on the question of “probable cause” before the complaints and informations were filed against him. He seeks to rely on the authority of Pugh v. Rainwater, 355 F.Supp. 1286 (S.D.Fla.1973), sub nom. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) and Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Insofar as appellant relies on Coolidge for the proposition that the prosecutor and police officers do not constitute the neutral and detached magistrate envisioned under the case law on the Fourth Amendment to the United States Constitution, he is correct. However, this conclusion does not settle the case before us. The record reflects that in each of the above-referenced causes appellant was released within 24 hours of his arrest on a $1,000.00 bond. In each of the causes the complaint and information were filed on or before the day appellant received his magistrate’s warnings and was arraigned. See Articles 15.17 and 14.06, V.A.C.C.P. It is undisputed that no preliminary examination was conducted before any magistrate to determine whether probable cause existed for the filing of the complaints and informations charging driving while intoxicated. Further, it is apparent that the arrests of appellant for driving while intoxicated were warrantless arrests.

Notwithstanding the unquestioned authority of Gerstein v. Pugh, supra, and the problems of enforcement of the rights accorded thereunder, we do not believe that appellant’s convictions must be reversed.

First, it is noted that the Supreme Court in Gerstein v. Pugh dwelt on the need for a neutral and detached magistrate to determine probable cause for “detention.” As the Court stated, one of the two questions presented by the case was “whether a person arrested and held for trial on an information is entitled to a judicial determination of probable cause for detention . . ” Id. 420 U.S. at 111, 95 S.Ct. at 861. The Court referred to the “consequences of prolonged detention,” but further stated that “Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty.” Id. 420 U.S. at 114, 95 S.Ct. at 863. The Court referred to 18 U.S.C. Sec. 3146(a)(2), (5) when discussing conditions that may cause a significant restraint. Those conditions referred to “restrictions on the travel, association, or place of abode of the person during the period of release; or . any other condition deemed reasonably necessary to assure appearance as required, including a condition requiring that the person return to custody after specified hours.” It is noted that the bonds in appellant’s case required only that the appellant make his personal appearance at the county court on a date certain and remain available until discharged. Therefore, the conditions of appellant’s pretrial release did not constitute “a significant restraint of liberty.” Id.

Second, the Court stated that they “adhere to the Court’s prior holding that a judicial hearing is not prerequisite to prosecution by information.” Id. 420 U.S. at 119, 95 S.Ct. at 865.

Thus, as the court of appeals noted below, although a suspect who is presently detained may challenge the probable cause for that confinement, the conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause.

Id. 420 U.S. at 119, 95 S.Ct. at 865-866.

Therefore, for the two distinct reasons that the failure to accord the probable cause hearing will not vitiate a conviction subsequent to sud\, an omission and the fact that appellant was released before trial from custody without significant restraints on his liberty, his single ground of error in all causes is overruled.

There being no reversible error, the judgments are affirmed.


author: ODOM, Judge.

text:
    Salvador RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 59260.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 21, 1979.
    Richard M. Lovelace, El Paso, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for evading arrest. V.T.C.A., Penal Code Sec. 38.04. After a bench trial punishment was assessed at 30 days in jail, and appellant was put on probation for six months.

Appellant contends that his detention and arrest were unlawful and that the evidence is therefore insufficient to support the conviction.

In Alejos v. State, Tex.Cr.App., 555 S.W.2d 444, 448, we listed the elements of evading arrest:

(1) a person
(2) intentionally flees
(3) from a peace officer
(4) with knowledge he is a peace officer
(5) peace officer is attempting to arrest defendant
(6) the attempted arrest is lawful.

Specifically, appellant challenges the sufficiency of the evidence to prove the sixth element above.

The facts show that appellant was walking along a street in downtown El Paso in the middle of the morning when officer McClure of the El Paso Police Department drove by in a marked police car going the other direction. After McClure passed appellant, he looked in his rear view mirror and saw appellant glance over his shoulder in the direction of the police car. McClure considered this conduct suspicious and returned to detain appellant for further investigation. We can stop our examination of the facts at this point because if there are not sufficient grounds for the temporary detention, the subsequent arrest would be tainted and therefore unlawful.

In Ceniceros v. State, Tex.Cr.App., 551 S.W.2d 50, a similar situation was presented. In that case four persons standing on a street corner in the middle of the morning were approached by a police officer for investigative purposes to secure information and see if they had “any business in the area.” It was pointed out that a temporary detention must be based on specific reasonable inferences that the officer is entitled to draw from the facts in light of his experience. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. We held there was no such lawful basis for the investigative action. Likewise in this case, there was no lawful basis for the investigative action. Stopping a pedestrian solely because he looks over his shoulder in the direction of a police car is unreasonable under the Fourth Amendment to the United States Constitution and under Article 1, Section 9 of the Constitution of Texas. Any subsequent arrest arising out of the unlawful detention would likewise be unlawful, and therefore the evidence is insufficient to prove the lawful arrest element of the evading arrest conviction.

The conviction is set aside and the judgment is reformed to show an acquittal.


author: COLEMAN, Chief Justice.

text:
    Jack HOLST et al., Appellants, v. NEWSLETTERS, INC., Appellee.
    No. 17335.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 18, 1979.
    Thomas D. White, Houston, for appellants.
    Robert G. Devlin, Ray Matthews, Houston, for appellee.
   COLEMAN, Chief Justice.

This is an application for a writ of prohibition directing the Judge of the 234th Judicial District Court, Harris County, Texas, not to hear a motion to dissolve a temporary injunction. The writ will be granted.

Jack Holst and Newsletter Publications, Inc. have perfected an appeal to this court from a temporary injunction issued by the 234th Judicial District Court in cause no. 78-35583 and bearing the style Newsletters, Inc. vs. Jack Holst, et al. Thereafter, they filed a motion to dissolve the injunction, which has been set for a hearing by the 234th Judicial District Court. While the trial judge has not ruled on the motion nor has she indicated that the motion to dissolve would be sustained, it is our opinion that the motion, if granted, would entrench upon our appellate jurisdiction and should not be heard.

When an appeal from an order granting a temporary injunction is perfected to the Court of Civil Appeals, that court acquires jurisdiction of the matter, and has the right and power to issue all writs necessary to enforce and protect its jurisdiction. Ex Parte Duncan, 127 Texas 507, 95 S.W.2d 675 (1936); Musick v. Hunt, 364 S.W.2d 252 (Tex.Civ.App.-Houston 1963, no writ history).

Since an appeal has been perfected to this court from the order granting the temporary injunction, the trial court is without jurisdiction to hear or dispose of the motion to set aside and dissolve the injunction. Morris v. Rousos, 354 S.W.2d 591 (Tex.Civ.App.-Austin 1962, writ ref. n. r. e.), cert. den. 370 U.S. 959, 82 S.Ct. 1612, 8 L.Ed.2d 825; City of Corpus Christi v. Lone Star Fish and Oyster Company, 325 S.W.2d 621 (Tex.Civ.App.-San Antonio 1960 no writ history); Caldwell v. Myers, 446 S.W.2d 709 (Tex.Civ.App.-Austin 1969, no writ history).

The Judge of the 234th Judicial District Court of Harris County, Texas, is hereby directed to stay the hearing on the motion to dissolve the temporary injunction previously issued in cause no. 78-35583 until this court has finally determined the appeal from the granting of such order.


author: PEDEN, Justice.

text:
    Valton DAVIS, Appellant, v. J. H. ROSE TRUCK LINES, INC., et al., Appellees.
    No. 17209.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Jan. 25, 1979.

      Ronald N. Etzel, Houston, for appellant.
    Talbert, Giessel & Stone, Henry P. Gies-sel, Tekell, Book & Matthews, William C. Book, Jr., Houston, for appellees.
   PEDEN, Justice.

Valton Davis complains that a judgment awarding him $12,500 in damages for injuries received in a truck collision was manifestly too small. Defendant J. H. Rose Truck Lines, Inc. judicially admitted liability for the accident. The question of whether Davis was injured as a result of the accident (answered in the affirmative by the jury in the first special issue) was closely contested. We affirm.

The accident occurred on Wednesday, February 14, 1973, and Davis returned to work that Friday. He testified that a few days after the accident he began experiencing pain and stiffness in his neck, but it didn’t start bothering him for a month or two after the accident, when the neck pain intensified, his left arm began going numb, his grip weakened, and he began to have severe headaches. He said he kept working because he was paid on a percentage and had a family to support. It was on June 4, that he saw a doctor. His family physician, Dr. Mathis, examined x-rays he had made, then sent him to Dr. Angel, a neurosurgeon, who performed a complete physical and neurological examination. Mr. Davis was admitted to the hospital on June 10, where he had a cervical myelogram. The diagnosis was degenerative disc disease and osteoarthritis. Dr. Angel performed a cervical fusion on June 15, 1973. He testified that he released Davis to return to work on August 20, 1973, but that Davis came back to see him in June, August, and September of 1974, complaining of pain and soreness in his neck and shoulders.

When he returned to work on August”20, 1973, Davis passed an Interstate Commerce Commission physical examination. He began performing his regular duties, although he says his neck hurt then and still hurts all the time. He testified that it bothers him continually, but he said that after Dr. Angel dismissed him on August 20, 1973, it was not until March of 1977 that he went back to Dr. Angel. His explanation was that Dr. Angel said it was something that was going to take time to get over. When working, he must rest often, and the pain interferes with his hobbies of hunting and fishing. He said he has never been free of pain since the operation.

Ernest Long worked with Davis as a truck driver in 1973 and is now his supervisor. He testified that when Davis returned to work after his surgery, he could no longer make long runs without stopping and resting. Long said he now gives Davis time to rest between trips instead of sending him right out again; he seems to need more rest. On cross-examination, Long testified that he believes the first time he heard any complaints from Davis about his neck was after the operation. He explained that he didn’t see Davis often before the operation.

Mrs. Davis testified that since the collision, her husband is not the same. He tires more easily, doesn't sleep or eat well, and his nerves are bad. He complains of pain in his head, neck, back, shoulders and arms.

Two expert witnesses were called. The first, Dr. Angel, testified to finding of muscle spasm in the cervical area and weakness in the left hand and arm before the operation. In his opinion the accident was most likely the cause of Mr. Davis’ pain, and he predicted that Davis will continue to have pain. He admitted on cross-examination that he had treated other patients, with conditions and symptoms like those of Davis, who had not been in an accident. There was evidence suggesting that the injury to Davis might have occurred in an incident on April 1, 1973, but the jury resolved that issue in favor of Davis by its answer to the first special issue.. Mr. Davis’ family physician, Dr. Mathis, testified that it was not medically possible for a person with a ruptured disc as a result of an accident to wait four months before consulting a doctor; that didn’t make sense to him. He said that a person can develop the symptoms of a ruptured disc without any specific event or trauma. Defendants introduced in evidence a written statement made by Mr. Davis on March 7, 1973 saying “I was not hurt in any way in this accident.” Mr. Davis explained by saying he had no idea the stiffness in his neck was related to the collision and felt he was lucky to get out of the truck with his life; at the time the statement was made, his stiff neck was a minor thing.

In his only point of error, Davis asserts that the trial court erred in overruling his motion for new trial because the amount of damages awarded was manifestly too small. Rule 328, Texas Rules of Civil Procedure, provides that new trials may be granted when the damages are manifestly too small or too large.

In awarding damages, the jury was instructed that it could consider the elements of physical pain and mental anguish in the past, physical pain and mental anguish which, in reasonable probability he will suffer in the future, physical impairment, loss of earnings in the past, and hospital and medical expenses in the past. Davis’ actual damages were shown to be $2500 in lost wages and $911.00 in medical expenses for a total of $3,411, so the jury award of an additional $9,089 is attributable to the elements of pain, anguish and physical impairment.

Matters of pain and suffering are necessarily speculative, and it is peculiarly within the province of the jury to set the amount of such damages. Ruffo v. Wright, 425 S.W.2d 663 (Tex.Civ.App.1968, no writ). Complaints that a verdict is inadequate are great weight points. 4 McDonald, Texas Civil Practice 280, New Trial § 18.15 (1971). We have examined the entire record in this case.

From the date of injury in February until June, Mr. Davis sought no medical attention. Following his release from Dr. Angel’s care in August of 1973, Davis said he did not visit the doctor again until some four years later. Dr. Mathis testified that Davis had seen him a number of times for minor complaints prior to the accident. From this evidence the jury was entitled to conclude that although Davis was experiencing some discomfort, his pain was not great. Moreover, after Davis’ return to work, he had not since been absent from the job because of pain or discomfort associated with his injury. Both Davis and his wife testified as to his pain, but jurors are not required to believe a witness, particularly in testimony about subjective matters such as pain, even though his testimony is neither impeached nor contradicted. This court has the power to reverse where the finding of the jury is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust, but we are not authorized to substitute our judgment for that of the jury simply because we might have reached a different conclusion on the facts. Blackmon v. Piggly Wiggly Corp., 485 S.W.2d 381, 384 (Tex.Civ.App.1972, writ ref’d n.r.e.).

The judgment of the trial court is affirmed.


author: DODSON, Justice.

text:
    Thomas PERRY, Appellant, v. H & S MECHANICAL CONTRACTORS, Appellee.
    No. 8939.
    Court of Civil Appeals of Texas, Amarillo.
    Jan. 29, 1979.
    Rehearing Denied Feb. 26, 1979.

      Carson Smith & Associates, Tim L. Hoffman, Amarillo, for appellant.
    Gibson, Ochsner & Adkins, James H. Doores, Amarillo, for appellee.
   DODSON, Justice.

Thomas Perry brought this common law negligence action against H & S Mechanical Contractors, seeking damages for the loss of his eye in an industrial accident. Mr. Perry’s eye was struck by a steel wire while an employee of H & S Mechanical Contractors was operating a sidegrinder with a wire brush attachment. This sidegrinder was being used to brush a weld on a steam pipeline being installed by H & S Mechanical Contractors. The case was tried with a jury. Based on the jury verdict, the trial court entered a take-nothing judgment against Mr. Perry. He appeals from this judgment, attacking the legal and factual sufficiency of the evidence to support the unfavorable findings of the jury. He also attacks the refusal of the trial court to submit the case on the theory of res ipsa loquitur and the further refusal to submit other alleged specific acts of negligence on the part of H & S Mechanical Contractors. We affirm.

The jury found, inter alia, that H & S Mechanical Contractors negligently failed “to use guards on the equipment,” but they declined to find that such failure was a proximate cause of the occurrence in question. The jury also refused to find that H & S Mechanical Contractors was negligent in failing to warn, to lookout, or to use barricades while operating the sidegrinder. Accordingly, the jury left unanswered the corresponding proximate cause issues relating to each of these matters. The jury did, however, find that Mr. Perry was negligent “in his lookout” and “in his facing in the direction of the work area” of H & S Mechanical Contractors and that each of these acts of negligence was a proximate cause of the occurrence in question.

Mr. Perry says he conclusively' established: (1) that the negligent failure to use the guard on the equipment was a proximate cause of the occurrence in question; (2) that H & S Mechanical Contractors was negligent in failing to warn, in failing to lookout, and in failing to use barricades when using the sidegrinder equipment with a brush attachment; and (8) that each alleged act of specific negligence was a proximate cause of the occurrence in question.

Mr. Perry was employed by Wiley Hicks, a general contractor, who contracted to do certain remodeling in a garage building at the Pantex plant east of Amarillo, Texas. Mr. Hicks subcontracted all of the mechanical work on the job to H & S Mechanical Contractors. The mechanical work primarily consisted of moving pipes on the outside of the building to accommodate new overhead doors and the installation of a new steam pipeline in the ceiling of the building.

Mr. Perry was assigned to the job on Friday, February 20, 1976. He spent approximately four to six hours at the job site familiarizing himself with the construction activity. The balance of this day was spent at Mr. Hicks’s main office reviewing the construction plans for the job.

The accident occurred at approximately 11:30 a. m. on Monday, February 23, 1976. Mr. Perry arrived at work at approximately 7:30 a. m. His duties as superintendent included keeping the work progressing on the job and coordinating the activities of the subcontractors. The testimony provided that Mr. Perry was Hicks’s only employee on the site. Two employees of H & S Mechanical Contractors were welding, buffing, and installing new pipe in the ceiling of the building. This process involved making a preliminary weld to join two joints of pipe, which weld was then ground with a grinder. A second weld was made, which was wire-brushed clean before the final connecting weld was completed. The un-contradicted evidence shows that three complete welds were made and the grinder used nine times prior to the accident on this day.

The evidence concerning the accident indicates that an employee of H & S Mechanical Contractors was making a pipe weld at one end of a work vehicle which had been placed in the garage building. Mr. Perry was standing at the other end of the vehicle at an approximate distance of fifteen to twenty feet. The employee was facing away from Mr. Perry while working on the pipes in front of him. It is undisputed that the employee was in the process of buffing a weld with a sidegrinder which had a wire brush attachment when Mr. Perry was struck in the left eye by a wire. It is further undisputed that no barricades were placed around the welding operation, no warning was given other than noise of the grinder, and no guard mechanism was attached to the sidegrinder.

Mr. Perry, by prior construction experience, was generally familiar with the type of welding operation in process on this particular job. The evidence shows generally that experienced construction workers do not look at or face toward a welding operation, that- barricades are not used around the operation, that guarding mechanisms are not used on sidegrinders, and that normally no warnings are made before starting the sidegrinder. This evidence was given by experienced construction workers generally familiar with the particular welding operation being conducted at the time of the accident.

We do not agree that Mr. Perry conclusively established that the negligent failure to use guards on the equipment was a proximate cause of his injuries. In Texas, two elements are necessary to constitute proximate cause: cause in fact and foreseeability, Farley v. M M Cattle Co., 529 S.W.2d 751, 755 (Tex.1975), and there must be proof of both elements. Enloe v. Barfield, 422 S.W.2d 905, 908 (Tex.1967). The test for the element of cause in fact is whether the negligent act or omission was a substantial factor in bringing about the injury and without which no harm would have been incurred. Missouri Pacific Railroad Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977); Texas & Pacific Railway Co. v. McCleery, 418 S.W.2d 494, 497 (Tex.1967). The test for the foreseeability element is whether the negligent defendant, as a person of ordinary intelligence and prudence, should have anticipated the danger to others created by his negligent act, and it is not required that he anticipate just how injuries will grow out of the dangerous situation. Missouri Pacific Railroad Co. v. American Statesman, supra; Clark v. Waggoner, 452 S.W.2d 437, 439-40 (Tex.1970). The question of proximate cause is generally one of fact. In Luvual v. Henke and Pillot, 366 S.W.2d 831, 836 (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.), the court stated that:

While there may be cases in which a court would be warranted in holding an act of negligence to be a proximate cause of an injury, such cases are extremely rare and generally a question of proximate cause is one of fact. Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d 1063.

In the case at bar, Mr. Perry had the burden of persuading the jury that the negligence of H & S Mechanical Contractors in failing to place a guard on the sidegrinder was a proximate cause of his injuries. The jury’s refusal to find a fact vital to Mr. Perry’s action need not be supported by affirmative evidence. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973). It is undisputed that the guard mechanism covered only approximately sixty percent of the circumference area of the brush. The evidence does not show the effect guards on equipment have in preventing accidents. Any inference to such effect is no more than a suggestive surmise. Mr. Perry simply failed to carry his burden of persuasion on this vital issue, and under the circumstances of the case we are not convinced that reasonable minds must necessarily conclude as Mr. Perry contends. Accordingly, we overrule Mr. Perry’s contention that he conclusively established that the failure to use guards on the equipment was a proximate cause of his injuries.

Mr. Perry also avers that the jury’s refusal to find that H & S Mechanical Contractors’ negligence was a proximate cause of his injuries is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In passing on this contention, we are required to consider all of the evidence, both favorable and unfavorable to his position. Having done so, we overrule the contention. We deem the further recitation of evidence or a continued discussion of the controlling case law to be unnecessary.

We also do not agree that Mr. Perry conclusively established that H & S Mechanical Contractors negligently failed to warn, to lookout, and to use barricades when operating the sidegrinder equipment on the occurrence in question. As a general rule, the determination of negligence is the province of the trier of fact. Exchange Bank & Trust Co. v. Kidwell Construction Co., 463 S.W.2d 465, 470-71 (Tex.Civ.App.—Tyler 1971, writ, ref’d n. r. e.). The court defined negligence as:

(b) Negligence. A failure to use ordinary care is termed “negligence”. “Negligence” may be further defined as doing that which a person of ordinary prudence would not do or a failure to do what a person of ordinary prudence would do under the same or similar circumstances.

This definition is unchallenged. As previously stated, the jury’s failure to find a fact vital to Mr. Perry’s action need not be supported by affirmative evidence. Traylor v. Goulding, supra. The jury’s refusal to find any of these vital facts simply means Mr. Perry failed to carry his burden of persuasion on these issues. Under the evidence and the controlling case law, we cannot say, as a matter of law, that he conclusively established these matters. We likewise overrule his contentions that each of these alleged specific acts of negligence, in each instance, was a proximate cause of his injuries.

Mr. Perry further maintains that the jury’s failure to find that each of these specific acts was negligence and a proximate cause of the occurrence in question was, in each instance, so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Having reviewed all of the evidence, both favorable and unfavorable to Mr. Perry’s position, we overrule these contentions.

Mr. Perry also contends that the trial court erred in refusing to submit res ipsa loquitur issues to the jury. We do not agree. In Mobil Chemical Company v. Bell, 517 S.W.2d 245, 254 (Tex.1974), our Supreme Court stated:

Of course, if the evidence, whether introduced by the plaintiff or the defendant, conclusively establishes the facts surrounding the accident, then there is no room for inferences and the res ipsa doctrine is not applicable. .

In the case before us, H & S Mechanical Contractors’ acts or omissions pertinent to the “facts surrounding the accident” were conclusively established and undisputed by the parties. A part of the ultimate and controlling issues in the case was the legal effect to be given to these acts and omissions, i. e., whether or not each specific act or omission was negligence and a proximate cause of Mr. Perry’s injuries. The jury’s answers to the special issues submitted predicated the resulting legal effect of these acts and omissions.

Mr. Perry further avers that the trial court erred in failing to submit “the issue of Defendant’s [H & S Mechanical Contractors] negligent failure to properly inspect the area where the work was being performed” and “the issue of Defendant’s negligence and improperly using the equipment on the occasion of the accident.” However, the trial court did submit “failure to warn,” “failure to lookout,” “failure to use guards on the equipment,” and “failure to use barricades when using equipment.” In Holmes v. J. C. Penney Company, 382 S.W.2d 472, 473-74 (Tex.1964), our Supreme Court stated:

We do, however, take occasion to reiterate that in submitting a case upon special issues, the court should submit only the controlling issues made by the pleadings and the evidence and is not required to submit various phases or shades of the same issue. Rule 279.

Under the evidence in the case before us, the refused issues are merely various phases or shades of the issues submitted by the court. We are persuaded that the trial court fairly submitted the controlling issues raised by the written pleadings and evidence; therefore, we overrule Mr. Perry’s contention.

In summary, we overrule Mr. Perry’s points of error one through eight, and twenty-six through twenty-eight. Our determination of these points is dispositive of this appeal; therefore, we do not reach Mr. Perry’s remaining points of error. Accordingly, the judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

Mr. Perry attacks our conclusion that he failed to carry his burden of persuasion that the negligent failure to place a guard on the sidegrinder was a proximate cause of the occurrence in question. Mr. Perry directs our attention to the testimony of Mr. Wiley Hicks, a contractor with knowledge of the equipment in question. Mr. Hicks testified that a guard was available for the sidegrinder which would leave only the bottom part of the wire brush exposed and would prevent the bristle from flying off in a different direction. Notwithstanding this testimony, the evidence shows that the contractor’s employee was brushing a weld around the four inch pipe while using the sidegrinder as a hand tool rather than in a stationary position. Under the circumstances of this case, we cannot say that Mr. Perry conclusively established that the failure to use guards on the equipment was a proximate cause of his injuries. The motion for rehearing is overruled.