author: DALLY, Commissioner.

text:
    E. P. GOLLIN, Appellant, v. The STATE of Texas, Appellee.
    No. 53005.
    Court of Criminal Appeals of Texas.
    June 29, 1977.
    Rehearing Denied Sept. 14, 1977.

      George A. Day, Brownwood, for appellant.
    Gary R. Price, Dist. Atty. and W. Stephen Ellis, Asst. Dist. Atty., Brownwood, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of theft; the punishment is imprisonment for 10 years.

The appellant urges that the evidence is insufficient to support the conviction and there is a fatal variance between the allegations of the indictment and the evidence. He also urges that the trial court erred in admitting in evidence the record of appellant’s prior conviction, in admitting in evidence the appellant’s confession, and in granting the State’s motion in limine to exclude certain evidence.

The appellant was charged with stealing one head of cattle on September 1, 1974. He asserts the evidence is insufficient to show he stole one head of cattle, and he also asserts there is a variance between the allegation that he stole one head of cattle and proof showing that he stole portions of a dead cow. He cites and relies upon Jackson v. State, 62 Tex.Cr.R. 106, 136 S.W. 783 (1911); Ballow v. State, 42 Tex.Cr.R. 263, 58 S.W. 1023 (1900); and Noble v. State, 81 Tex.Cr.R. 28, 192 S.W. 1073 (1917). These appeals were decided under the former penal code.

Under former penal code provisions proscribing the stealing of cattle and hogs it was held that the theft contemplated by the statute was that of a live animal — not dead animals or portions of dead animals. Grant v. State, 42 Tex.Cr.R. 273, 58 S.W. 1026 (1900). However, if without consent of the owner of a cow or a hog, a person killed the cow or the hog and appropriated to his own use the dead animal or a portion of the dead animal, prosecution for the theft of the live cow or hog was proper. See Clay v. State, 41 Tex.Cr.R. 653, 56 S.W. 629 (1900); Jackson v. State, supra.

In this case two game wardens were parked on a hill in a rural area looking for game poachers. At approximately 11:10 p.m. on September 1,1974, they observed an automobile being driven on a road they were watching; they saw it pull into a driveway, and then return down the same road. As the automobile was turning around they saw that the license plates had been covered with mud. There was one person in the automobile at that time. Approximately ten minutes later the same automobile returned with three persons in the automobile. One game warden testified that the area they were watching had a high incidence of game poaching, which usually occurred between 8:00 p.m. and 3:00 a.m. Poachers would usually drive along country roads using their headlights to spot and shoot deer. After an animal was shot one poacher would dress the animal while the other would ride around in the vehicle. At a prearranged time, normally five to ten minutes, the vehicle would return to pick up the companion and the animal. He stated that poachers often cover their license plates with mud. After observing this suspicious behavior the game wardens stopped the automobile in question. As they approached the automobile they observed a fresh spot of blood near the trunk. The wardens identified themselves and asked the driver to open the trunk. The driver opened the trunk which contained the forequarters and hindquarters of a Hereford cow. The wardens, one of whom had formerly been a butcher, testified that the meat appeared to be from a freshly killed cow and the hide was still attached to the quarters. After the appellant and his two companions were taken to jail, the game wardens and a deputy sheriff returned to the country to look for the cow’s carcass. About an hour and a half after they arrested the appellant and his companions, they found the carcass inside the fence of a ranch approximately two and one half miles from where they had stopped the appellant. The forequarters and hindquarters had been cut from the animal and there was a single bullet hole between the cow’s eyes. The blood had not coagulated. The meat was still red, the carcass was not bloated, and there were no flies on it. One game warden testified that he knew what happens to the bodies of dead animals that are exposed to the open air. He estimated that the cow had been dead for approximately two to three hours.

The appellant was properly charged with stealing the cow under the provisions of V.T.C.A. Penal Code, Sec. 31.03, just as it would have been proper under the former penal code. The evidence is sufficient to support the jury’s verdict and to show that the appellant and others stole the cow. That the appellant and his companions had severed the quarters and were only in possession of the quarters when arrested does not create a variance.

Appellant contends the court erred in admitting evidence of a prior conviction at the penalty stage of the trial. He argues that the records of the Texas Department of Corrections (State’s Exhibit No. 18) were inadmissible because the State failed to prove that E. P. Gollin named in the penitentiary records was the appellant and the State failed to deliver a copy of the record to him a reasonable time before trial as required by Article 3731a, V.A.C.S.

State’s Exhibit No. 18 was properly certified as an official record of the Texas Department of Corrections under Article 3731a, V.A.C.S., and was admitted as proof of a prior conviction at the penalty stage of the trial under Article 37.07(3), V.A.C.C.P. The exhibit contained a judgment, sentence, commitment, photographs, fingerprints, and a physical description of E. P. Gollin. The records show that E. P. Gollin was convicted of the felony offense of passing a forged instrument in Crosby County. Appellant contends the State failed to prove that he was the same person who is named in the State’s Exhibit No. 18.

In Cain v. State, 468 S.W.2d 856 (Tex.Cr.App. 1971), it was stated:

“This Court has approved several different means to prove the accused was the same person previously convicted. They include, but are not necessarily limited to: (1) Testimony of a witness who identifies the accused as the same person previously convicted. Garcia v. State, 135 Tex.Cr.R. 667, 122 S.W.2d 631; Brumfield v. State, Tex.Cr.App., 445 S.W.2d 732; (2) Introduction of certified copies of the judgment and sentence and records of the Texas Department of Corrections or a county jail including fingerprints of the defendant, supported by expert testimony identifying them as identical with known prints of the defendant. Vessels v. State, 432 S.W.2d 108; (3) and by stipulation or judicial admission of the defendant. Brumfield v. State, supra.” (Emphasis added.)

The State attempted to prove that the appellant was the same person previously convicted by use of fingerprint comparison; however, because the State did not qualify its witness as an expert in fingerprint comparison, the State’s attempt at fingerprint proof failed to establish that appellant was the same person previously convicted.

The three methods set out in Cain v. State, supra, are not the sole means of proving a prior conviction. In the case at bar Deputy Sheriff Dennis Weathermon testified that he was acquainted with the appellant E. P. Gollin. Weathermon testified that he had examined the photograph and physical description of E. P. Gollin in State’s Exhibit No. 18 and in his opinion the person in the exhibit was the appellant. The photographs in the prison packet are two mug shots with a front and side view of E. P. Gollin. The physical description includes height, weight, complexion, eyes, hair, race, date of birth, and a cut scar on the right cheek. State’s Exhibit No. 18 was admitted into evidence before the jury.

It has been held that the evidence is sufficient to prove that the accused is the same person named in a record in question where that record contains photographs and a detailed physical description of a named person and the accused is present in court for the fact finder to compare his appearance with that person described in the record. Dorsett v. State, 396 S.W.2d 115 (Tex.Cr.App. 1965) (same person previously convicted of driving while intoxicated); Johnson v. State, 410 S.W.2d 785 (Tex.Cr.App. 1967) (revocation of probation); Ex parte Viduari, 525 S.W.2d 163 (Tex.Cr.App. 1975) (extradition); Ex parte O’Connor, 169 Tex.Cr.R. 579, 336 S.W.2d 152 (1960) (extradition).

In the case at bar the appellant was present in court where both the judge and jury could observe him. The non-common name, photographs, and detailed physical description contained in State’s Exhibit No. 18 matched the appellant. State’s Exhibit No. 18 shows that E. P. Gollin is a Negro male, born on August 14, 1929 in Marion, Arkansas. The appellant states in his confession, which was admitted into evidence, that his name is Elisha Perry Gollin, that he is a Negro male and was born on August 14, 1929 in Marion, Arkansas. We hold that the evidence was sufficient for both the trial court and the jury to conclude that appellant was the same person previously convicted. See Conley v. State, 390 S.W.2d 276 (Tex.Cr.App. 1965); Westfall v. State, 375 S.W.2d 911 (Tex.Cr.App. 1964); cf. State v. Jones, 103 Ariz. 580, 447 P.2d 554 (1968); People v. Washington, 243 Cal.App.2d 681, 52 Cal.Rptr. 668 (1966); State v. Michael, 361 S.W.2d 664 (Mo. 1962); State v. Anderson, 15 Or.App. 607, 517 P.2d 339 (1973).

Appellant also contends that State’s Exhibit No. 18 was inadmissible because the State failed to deliver a copy of the record to him a reasonable time before trial as required by Article 3731a(3), V.A.C.S. When this objection was voiced the prosecutor informed the court that seven days before he had shown one of the appellant’s attorneys a criminal history record from the Department of Public Safety. The record shows appellant’s attorney was not given a copy of State’s Exhibit No. 18. The State argues that this provided appellant’s attorney with notice that appellant had a prior conviction.

Even though a copy of an official record is not delivered to the appellant a reasonable time before trial, the exhibit is nevertheless admissible in the absence of unfair surprise. Sierra v. State, 476 S.W.2d 285 (Tex.Cr.App. 1971), and cases cited therein. The appellant did not offer any evidence that he was unaware of the prior conviction. As was stated in Sierra v. State, supra, “It is difficult for members of the Court, without evidence to the contrary, to conclude that counsel and appellant did not know that appellant had been previously convicted of a felony offense . . ” In the absence of a finding of unfair surprise or evidence establishing the same, no error is shown. Tatum v. State, 505 S.W.2d 548 (Tex.Cr.App. 1974).

Appellant contends the court erred in admitting his confession into evidence. The appellant was arrested on September 1, 1974, and taken before a magistrate on September 5, 1974; appellant gave his statement to Deputy Sheriff Weathermon on September 5th, after he had been warned by the magistrate. Appellant argues that there seems to be a causal connection between the delay in taking him before a magistrate and his giving a statement because he was in jail for five days before he was taken before a magistrate and then he gave the statement immediately after hearing the magistrate’s warning. Appellant also argues that the statement should not have been admitted because he was not given a copy of the original statement during pretrial discovery but was only given an unsigned, typewritten copy of the original statement.

After the jury had been selected the court held a hearing outside the presence of the jury in order to determine the voluntariness of appellant’s confession. See Article 38.22, V.A.C.C.P., and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The appellant did not testify at the hearing nor did he present any witnesses on his own behalf at the hearing. At the conclusion of the hearing the court found that the appellant’s statement was freely and voluntarily given and was admissible as a matter of fact and law. The court’s findings of fact and conclusions of law have been reduced to writing and made a part of the record.

The court found that the appellant was taken before Justice of the Peace Morgan on September 5, 1974, and advised of his rights as required by Article 15.17, V.A.C. C.P.; that the appellant understood the warnings given him; that he was not threatened or promised anything to give the statement; that he was not under fear or duress; and that the confession was voluntarily made and admissible as a matter of law and fact. The court’s findings are supported by the evidence. The officer to whom the statement was given advised the appellant of his rights as provided in Article 38.22, V.A.C.C.P.

The appellant argues that the five day delay from the time of his arrest until being taken before a magistrate renders his confession inadmissible. He says there seems to be a direct and causal connection between the delay in taking him before a magistrate and his giving the confession; however, no evidence or argument has been advanced which would show such a causal connection. In Shadrick v. State, 491 S.W.2d 681 (Tex.Cr.App. 1973), it was held that a delay of ten or eleven days from the time of arrest and the time the defendant was taken before a magistrate will not render a statement inadmissible in the absence of a showing in the record of a causal connection between the delay and the making of the defendant’s statement. See also Spencer v. State, 489 S.W.2d 594 (Tex.Cr.App. 1973). No error is shown.

It is also urged that the confession should not have been admitted because the appellant and his attorney were not given a copy of the original confession which was admitted into evidence. The record reflects that appellant’s attorney was given an unsigned, typewritten copy of the confession prior to trial. Other than being unsigned and typed, the copy given to the appellant is the same as the original confession, which was in the handwriting of Deputy Weathermon. The appellant has not shown nor even alleged how he was harmed or prejudiced by not receiving a copy of the original confession. No error is shown.

Appellant’s remaining contention is that: “The trial court erred in granting a Motion to Suppress filed by the State which barred the Defense from mentioning in any manner any prior trial of any cause involving theft of animals, in that it is a violation of the appellant’s right to confront and cross-examine his accusers, in that it is denial of the rights of the appellant to fully defend himself by the offering of testimony in his behalf.” The appellant does not designate the portion of the record to which he refers. The appellant has made no showing by bill of exception what witnesses would have been called, what questions he would ask, and the answers he expected the witnesses to give. Nothing is presented for review. Graham v. State, 487 S.W.2d 359 (Tex.Cr.App. 1972); Calverley v. State, 511 S.W.2d 60 (Tex.Cr.App. 1974); Weddle v. State, 522 S.W.2d 475 (Tex.Cr.App. 1975).

The judgment is affirmed.

Opinion approved by the Court.


source: Caselaw Access Project

author: DOUGLAS, Judge.

license: Public Domain

text:
    Dewey Paul GRIFFIN, Appellant, v. The STATE of Texas, Appellee.
    No. 53467.
    Court of Criminal Appeals of Texas.
    June 29, 1977.
    Rehearing Denied Sept. 14, 1977.

      Robert L. Rose, Dallas, court appointed on appeal, Richard C. Jenkins, Dallas, court appointed on appeal, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb, Rider Scott and Dan C. Guthrie, Jr., Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Dewey Paul Griffin appeals from a conviction for the misdemeanor offense of driving while intoxicated. The jury assessed punishment at one year in jail and a fine of $500.00. He contends that the court erred in not allowing his attorney to change his plea from not guilty to guilty and in refusing to grant a mistrial after sustaining an objection to argument. We overrule both contentions and affirm.

Griffin personally entered a plea of “not guilty” when the court inquired of him as to his plea. Counsel then attempted on his own motion to withdraw the plea and enter a plea of “guilty” and waive a jury trial. Griffin said nothing further after his plea of “not guilty” and there is no other showing in this record that he desired to change his plea. While it is true that an attorney may enter a plea of “guilty” or a plea of “nolo contendere” in a misdemeanor case under the provisions of Article 27.14, V.A.C.C.P., he can neither enter such a plea nor change a plea contrary to the express desire of his client. In the instant case appellant personally entered his plea; there is no showing in this record that he wished to change his plea even after his attorney attempted to get him to do so. To deny a defendant the right to enter a plea of “not guilty” or to allow his attorney to change his plea from “not guilty” to “guilty” would be to deny a defendant his rights under Articles 1.04 and 1.05, V.A.C.C.P. No error is shown.

He contends that certain remarks made by the prosecutor during closing argument constituted a comment on his failure to testify. The rule is well established by this Court that before an argument of the prosecution will constitute a comment on the failure of the appellant to testify the language used must be looked to from the standpoint of the jury and the implication that the language used had reference to the appellant must be a necessary one. It is not sufficient that the language might be construed as an implied or indirect allusion. McDaniel v. State, 524 S.W.2d 68 (Tex.Cr.App.1975); Nowlin v. State, 507 S.W.2d 534 (Tex.Cr.App.1974), and cases cited therein.

Appellant did not testify at the guilt stage of the trial nor did he produce any other witnesses in his behalf. Appellant’s complaint is directed at the last statement of the following remarks by the prosecutor:

“MR. SCOTT: (Prosecutor) Reasonable doubt is not speculation, conjecture or guess work. And as Mr. Guthrie told you, you are bound not by what the attorney said or asked or questioned in this case, you are bound by the evidence from the testimony that you hear from this stand. Did you hear anybody testify that the Defendant has an impairment in his hearing? Did you hear anybody testify that the Defendant had broken ankles? Did you hear anybody testify that the Defendant had been in a truck all day?”

His objection was sustained and the jury was instructed to disregard the last statement. His motion for mistrial was overruled.

For indirect comments such as this to constitute reversible error they must call for a denial of an assertion of fact or contradictory evidence that only the appellant is in a position to offer. Nowlin v. State, supra.

It is equally well established that counsel may in argument draw from the facts in evidence all inferences that are reasonable, fair, and legitimate and he will be afforded latitude without limitation in this respect so long as his argument is supported by the evidence and offered in good faith. See 56 Tex.Jur.2d, Trial, Section 257, page 590, and Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973).

In the instant case appellant was represented by two attorneys who vigorously attempted to impeach and discredit the State’s only witnesses, the officers who had arrested appellant for the instant offense. At one point during cross-examination the following colloquy took place between Officer Kenney and appellant’s counsel:

“Q. (Mr. Jenkins) You testified, I believe that he stumbled and that this was one of the factors that you based your opinion that he was under the influence. Is that correct?
“A. (Officer Kenney) It was one of the factors. Yes, sir.
“Q. Yes. That’s what I asked.
You don’t know how long he had been behind the wheel of that pickup truck, do you?
“A. No, sir. I don’t.
“Q. So that it’s conceivable or possible that he stumbled because his legs were tired from driving a period of time?
“A. He stated he started from Garland.
“Q. Regardless of what he said, if he had been driving a long period of time and his legs were tired, that could account for the stumbling; couldn’t it?
“A. Yes, sir.”

During argument to the jury at the guilt stage of the proceedings, both of appellant’s counsel forcibly argued that his condition could have been caused by a physical condition and that perhaps he was unable to pass the field sobriety tests administered by officers because of his health. His counsel, Mr. Rose, argued as follows:

“You have also heard the evidence that Mr. Griffin did not make public to the officer a bad neck, a bad ear, a bad leg. I suggest that holding that against Mr. Griffin, or let’s say, explaining your complete medical history in front of an officer and the failure to explain your complete medical history in front of an officer, to hold that against him is absurd. It’s extremely unreasonable. Moreover, I suggest it was the officer’s burden to determine if there were any physical defects in Mr. Griffin before he administered these tests. The only thing we have to decide right now is the opinion of the officer. He made an opinion because the man couldn’t stand up for very long a time. One officer said that his eyes were closed and he fell down. I suggest, ladies and gentlemen of the jury, that it was up to the officer to determine if that test fit that man and if that was a fair test. He didn’t even bother to see if he had weak legs. The record doesn’t say that be bothered to see if he had weak legs.”

Actually, the only inference regarding appellant’s physical condition was in the form of questions put to the officers on cross-examination as to whether or not appellant had told them of his health problems. Just as it was appellant’s counsel who established through Officer Kenney that it was conceivable that appellant’s stumbling could have been the result of his legs being tired from driving a period of time. Officer Kenney had testified that appellant had said that he had only come from Garland. This Court can take judicial notice that Garland, a suburb of Dallas, is only minutes away from Richardson, also a suburb of Dallas. Counsel had attempted to create an inference in the mind of the jurors that appellant had failed to pass the field sobriety tests because of health and fatigue. The prosecutor has the right to argue against that inference and to call the jury’s attention to his failure to support that inference. If appellant did have medical problems he could have called medical witnesses, yet his counsel’s strategy in argument was that appellant should not have to explain his condition but the burden was on the arresting officers to first determine such before determining the field sobriety tests. The language used by the prosecutor was not manifestly intended nor was it of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the defendant to testify. See McCarter v. State, 527 S.W.2d 296 (Tex.Cr.App.1975); and Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975). It was in answer to inferences to questions by and argument of his counsel. This does not constitute reversible error. In addition, the judge sustained the objection to the prosecutor’s argument and instructed the jury not to consider it.

No reversible error having been shown, the judgment is affirmed.


author: BROWN, Commissioner.

text:
    Ex parte Frank SLAVIN.
    No. 55195.
    Court of Criminal Appeals of Texas.
    July 6, 1977.
    Rehearing Denied Sept. 14, 1977.
    Donald S. Gandy, Fort Worth, for appellant.

      Tim C. Curry, Dist.Atty., Marvin Collins, Stephen R. Chaney and Ronald G. Knight, Asst.Dist.Attys., Fort Worth, Jim D. Vol-lers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This an appeal from the order of the trial court entered in two habeas corpus proceedings in which appellant sought a reduction in bail and attacked the validity of the indictment against him on the grounds that the prosecution was barred by the statute of limitations.

The hearing on both writs was consolidated by agreement. The first application attacked the validity of the indictment. The second writ also attacked the validity of the indictment but, in addition, asserted that the bail which had been set in the amount of $20,000.00 was excessive.

We have examined the record of the hearing and find that at no time was any testimony offered on the issue of excessive bail. There is nothing before us for review on the issue of excessive bail.

Appellant’s other contention is that since the first indictment in his cause was held by us to be void in Slavin v. State, Tex.Cr.App., 548 S.W.2d 30, the pendency of the same was not, therefore, capable of tolling the statute of limitations and, accordingly, the action was barred by the statute of limitations prior to the return of the second indictment.

Appellant concedes that there are no cases by this Court which substantiate his position but urges that we should consider the Georgia case of Taylor v. State, 160 Ga. 331, 127 S.E. 652 (1925) as being authority for his contention.

Appellant was first indicted for the offense of indecency with a child on June 18, 1974. The offense was alleged to have been committed on May 17, 1974. The indictment further alleged two prior felony convictions. Upon his trial appellant was found guilty and his punishment, enhanced by two prior felony convictions, was assessed at life imprisonment. On appeal we held that the indictment was fundamentally defective in that although it alleged that appellant knowingly and intentionally engaged in sexual contact with V_ R-F-, a child younger thán 17 years and not then the spouse of the defendant, by touching the genitals of V-R-F_, it failed to allege that the act was done with intent to arouse or gratify the sexual desire of any person. Slavin v. State, supra.

Our mandate dated April 1,1977 ordering the dismissal of the cause because of the faulty indictment was received on April 7, 1977 by the trial court which promptly dismissed the cause as directed. The present indictment was returned on May 12, 1977.

Appellant acknowledges that Article 12.-05, Vernon’s Ann.C.C.P., is as follows:

“(a) The time during which the accused is absent from the state shall not be computed in the period of limitation.
“(b) The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.
“(c) The term ‘during the pendency,’ as used herein, means that period of time beginning with the day the indictment, information, or complaint is filed in a court of competent jurisdiction, and ending with the day such accusation is, by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason.”

Appellant argues, in effect, that although every void indictment is necessarily invalid every invalid indictment is not necessarily void. He cites Taylor v. State, supra, as supportive of this contention. However, that case involved the sale of securities without a license. The penal statute under which the indictment was drawn expressly excluded the type of security Taylor was alleged to have sold. Another penal statute prohibited the sale of that type of security without a different type license. Accordingly, the first indictment, on its face, did not charge an offense and the second indictment charged a new, separate and distinct offense under a different statute. Under such circumstances, the Georgia Supreme Court held that the second indictment was barred by the statute of limitations. In the instant case the second indictment was brought under the same penal statute as the first. This fact distinguishes this case from the one cited by appellant. We hold that the statute of limitations was tolled by the first indictment.

The order of the trial court is affirmed and relief is denied.

Opinion approved by the Court.


author: ODOM, Judge. ROBERTS, Judge,

text:
    Gary Elsworth LICHTENWALTER, Appellant, v. The STATE of Texas, Appellee.
    No. 52619.
    Court of Criminal Appeals of Texas.
    July 13, 1977.
    Rehearing Denied Sept. 14, 1977.
    Ray Epps, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, Michael J. Hinton and Vic Pe-corino, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted for aggravated assault. His punishment was assessed at five years’ imprisonment.

The sufficiency of the evidence is not challenged.

The sole contention raised on appeal is that the trial court improperly admitted evidence of appellant’s membership in the Bandido Motorcycle Club. Appellant’s membership card was introduced into evidence at trial.

This prosecution arose from events occurring at the “Up Front Lounge” in Houston on February 26, 1974. Deputy Rodney Scott Morgan of the Harris County Sheriff’s Department and Officer F. G. Dodd of the Houston Police Department were working as undercover agents in the “Up Front Lounge" on the night of the offense. Their purpose was to investigate “Alley Cat”, a member of the Bandido Motorcycle Club and a known narcotics trafficker.

Appellant, Morgan, and Glen Wilhelm, a co-defendant in this case, went to the restroom of the lounge and a fight ensued. Dodd heard the commotion, drew his pistol and went to the aid of his fellow officer. When he opened the restroom door, he observed Wilhelm attempting to stab Morgan.

Dodd fired one shot in the air and assisted Morgan to his feet. Morgan drew his pistol and the two officers' subdued appellant and the co-defendant.

The record clearly demonstrates that the jury was presented other evidence establishing appellant’s membership in the Ban-dido Motorcycle Club. This evidence was admitted prior to the introduction of the membership card and no objection was voiced by the appellant when it was introduced.

George Nesbett, the bartender of the Up Front Lounge, testified that he heard a “lot of noise, racket and thumping” after the appellant and the co-defendant, Glen Wilhelm, entered the restroom. Nesbett stated that he went to the restroom to “see what was going on.” At this point Nesbett testified:

“Q. Anybody standing outside the restroom door?
“A. A man was standing there, yes, sir.
“Q. Did you know him as a member of any particular club or organization?
“A. Yes, sir. I didn’t know him as a member, but I knew he was with the members of the organization already in there.
“Q. And what organization is that?
“A. The Bandido’s Motorcycle Gang.”

Nesbett’s testimony also established that the persons in the restroom were deputy Morgan, the appellant and Wilhelm, the co-defendant. The jury knew that deputy Morgan was not a member of the Bandidos. The jury was informed by Nesbett’s above-quoted testimony that the appellant and the co-defendant were “members of the organization already in there”, and that this organization was the “Bandido’s Motorcycle Gang.” Nesbett’s testimony directly connected the appellant with the motorcycle club.

The jury also heard other testimony connecting the appellant with the Bandido organization. The jury was informed that the Up Front Lounge was a Bandido hangout and that Morgan’s and Dodd’s purpose at the bar was to investigate a member of the motorcycle club. Patricia Jean Kelly, the manager of the lounge, stated that members of the motorcycle club were in her establishment on the night of the offense. Nesbett, in addition to his statements quoted above, also testified that the Bandidos’ girls were in the bar at the time of the altercation in the restroom and that his initial statement to the police regarding the incident did not contain everything he knew because he was fearful of “repercussions” from the motorcycle gang.

In Wood v. State, Tex.Cr.App., 511 S.W.2d 37, at 47, we stated:

“The general rule is that a judgment will not be reversed for error in admission of improper evidence if the same facts were proved by other testimony to which there were no objections.”

We stated the same principle in Miles v. State, Tex.Cr.App., 499 S.W.2d 175:

“It has long been the rule that improper admission of evidence does not constitute reversible error if the same facts were proved by evidence not objected to.” Also see, Vaughn v. State, Tex.Cr.App., 530 S.W.2d 558; Hawkins v. State, Tex.Cr.App., 505 S.W.2d 578; Compton v. State, Tex.Cr.App., 500 S.W.2d 131; Maldonado v. State, Tex.Cr.App., 467 S.W.2d 468; Lassere v. State, Tex.Cr.App., 458 S.W.2d 81; Merx v. State, Tex.Cr.App., 450 S.W.2d 658.

No objection was made to Nesbett’s testimony. The jury was aware that the appellant was a member of the motorcycle club before the identification card was introduced into evidence. The admission of the card, therefore, does not constitute reversible error. Appellant’s ground of error is overruled.

The judgment is affirmed.

ROBERTS, Judge,

dissenting.

I.

The majority interprets the record in such a manner that its opinion will hang on one of the hooks of a rule that does not bear one for fundamental unfairness.

First, the majority’s interpretation of Nesbett’s testimony which “establish[ed] appellant’s membership in the Bandido Motorcycle Club.” Nesbett testified as follows:

“Q And when you arrived in this approximate location behind the cigarette machine — incidentally, is this a little foyer here outside the restroom?
“A Yes, sir, there is.
“Q Anybody standing outside the restroom door?
“A A man was standing there yes, sir.
“Q Did you know him as a member of any particular club or organization?
“A Yes, sir. I didn’t know him as a member, but I knew he was with the members of the organization already in there.
“Q And what organization is that?
“A The Bandido motorcycle gang.”

While Nesbett’s testimony established that the persons in the restroom were Deputy Morgan, the appellant and Wilhelm, the jury had just finished hearing Kelly’s testimony that other members of the “Bandi-dos” were in the lounge itself on the night of the offense. Nesbett’s testimony about “members of the organization already in there” does not answer whether he meant “in there” — in the restroom or “in there”— in the lounge itself. The jury did know that there were other members of the Ban-dido motorcycle gang in the lounge. But if Nesbett meant in the lounge, then his testimony merely stated that the mysterious man in the “little foyer here outside the restroom” was with members of the Bandi-dos already in the lounge.

Next, the “other testimony connecting the appellant with the Bandido organization.” (Emphasis added). Apparently, the majority feels that other evidence inferentially connected the appellant with the Ban-didos. They draw this inference from the fact that before his Bandido identification card was introduced there were numerous references to the Bandido motorcycle club itself; that Morgan’s and Dodd’s purpose at the bar was to investigate a member of the motorcycle club; that Kelly testified that members of the motorcycle club were in her establishment on the night of the offense; that Nesbett testified that the Bandidos’ girls were in the bar at the time of the altercation in the restroom; and that his statement to the police was not complete because he was fearful of “repercussions from the motorcycle gang.”

These facts, the majority feels, connected the appellant with the Bandidos. I concede that the jury was informed that the “Up Front Lounge” was a Bandido hangout and that Morgan’s and Dodd’s purpose at the bar was to investigate a member of the motorcycle club. However, I am not sure whether the majority feels the inference of a non sequitur or the hammer of an identification card. I am equally not sure what the jury felt.

Next, assuming strained arguendo that Nesbett’s testimony “directly connected” the appellant to the Bandidos and makes possible the application of the rules of Wood, supra, and Miles, supra, the majority shortsightedly applies these rules.

“It has long been held that the admission of improper evidence will not require reversal if the same facts are proved by ‘other and proper’ testimony. (Citation). Frequently referred to as the ‘General Rule,’ this rule has been cited so often that no useful purpose would be served at this point by canvassing the many cases in which it appears.” Alvarez v. State, 511 S.W.2d 493, 498 (Tex.Cr.App. 1974, opinion on State’s second motion for rehearing).

The general rule is that if the same facts were proved by evidence not objected to the improper admission of evidence does not constitute reversible error. Miles, supra. This is not a strict rule of evidentiary, procedural or substantive law. This is another phase or shade of the principle that breathes through the appellate judiciary: the harmless error rule. “[I]f a fact be proven without objection, its erroneous proof over objection, although still error, is harmless error since the same facts have been proven without objection.” (Emphasis added). Nicholas v. State, 502 S.W.2d 169, 175 (Tex.Cr.App. 1973, opinion on State’s motion for rehearing). The larger question we face in this appeal is whether to apply the harmless error rule. The question should be answered as follows:

II.

Appellant contends that the trial court erred when it admitted over his objection, during the State’s case in chief, his Bandido membership card. The State had custody of appellant’s billfold until the time they sought to introduce the Bandido membership card into evidence, and apparently the billfold was recovered by the police during the incident at the lounge.

The record reveals that the jury probably was aware that the “Up Front Lounge” was a Bandido hangout. Also, they were informed that Morgan’s and Dodd’s purpose for being present at the “Up Front Lounge” that night was to investigate one “Alley Cat,” a known Bandido and narcotics trafficker. However, outside of appellant’s Bandido identification card which was introduced into evidence over his objection, nothing specifically tied the appellant to that organization.

The appellant did not take the stand and put his character in issue. As a general rule, the character of a person accused of a crime is not a fact in issue and the prosecution cannot, in its case in chief, introduce evidence tending to show the defendant’s bad character or reputation unless the accused first introduces evidence of good character or reputation. Michelson v. United States, 335 U.S. 469, 475, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Lovett v. State, 158 Tex.Cr. 550, 258 S.W.2d 335, 336 (1953).

Gant v. State, 513 S.W.2d 52 (Tex.Cr.App. 1974), concerned the erroneous admission of character evidence. We reversed the defendant’s conviction, holding:

“It is clear that one’s character is no evidence of guilt. It should be even more obvious that the character of one’s associates is no evidence of guilt, and we have held that such evidence should not be admitted. (Citation). Indeed, it has been held that one may not even be impeached by the character of his associates. (Citation).” Id., at 53.

In Koller v. State, 518 S.W.2d 373 (Tex.Cr.App. 1975), the evidence included the defendant’s confession. We reversed the defendant’s conviction for numerous errors including a character attack by the prosecution. After noting the above-quoted holding of Gant, we stated:

“We are again forced to reassert the critical importance of convicting an accused only upon the evidence presented which shows that he is guilty of the offense charge, (citation), and not through attempting to inflame or prejudice the minds of the jurors. (Citations). The conduct of the prosecutor could have served no other purpose than to deprive the appellant of a fair trial by prejudicing the jury against him.” Id., at 378.

There was no reason for the appellant’s Bandido membership card to have been offered or admitted into evidence.

“Harmless error is intended to cover those inadvertent slips, which occasionally creep into a hotly contested trial, which do not severely prejudice the rights of the defendant. Harmless error should never be applied in those instances where the prosecution deliberately, or because of very careless procedures, injects prejudicial error into the proceedings.” State v. Atwater, 193 Neb. 563, 228 N.W.2d 274, 275 (1975).

I further note that the appellant timely requested a charge which would have instructed the jury that if appellant was a member of the Bandido motorcycle club it should not be considered as evidence of his guilt or innocence. The trial court denied this requested charge.

Appellant’s ground of error should be sustained and the judgment reversed. He had not placed his character in issue; the evidence introduced could only serve to arouse the passion and prejudice of the jury; the trial court denied him the opportunity to cure, if he could have, the error committed. “The conduct of the prosecutor could have served no other purpose than to deprive the appellant of a fair trial by prejudicing the jury against him.” Koller, supra.

III.

The error created by the introduction into evidence at the State’s case in chief of appellant’s Bandido identification card should not be countenanced on the basis of “in there.” The judgment should be reversed, the cause remanded, and appellant retried for aggravated assault and not for being a Bandido.

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


author: ROBERTS, Judge. DOUGLAS, Judge,

text:
    Stephen Alan TUNNELL, Appellant, v. The STATE of Texas, Appellee.
    No. 53402.
    Court of Criminal Appeals of Texas.
    July 13, 1977.
    Rehearing Denied Sept. 14, 1977.
    Kenneth Vaughan, on appeal only, Garland, for appellant.
    Henry Wade, Dist. Atty., Maridell Tem-pleton and Dan C. Guthrie, Jr., Asst. Dist. Attys., Dallas, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of less than two ounces of marihuana. Appellant was tried before the court, found guilty, and assessed a punishment of thirty days in jail and a fine of one hundred fifty dollars. Appellant was granted probation but was required to pay his fine as a condition of probation. See Art. 42.13, Sec. 5(b)(8); Batten v. State, 549 S.W.2d 718, 719, n.2 (Tex.Cr.App.1977).

Appellant’s sole contention is that the search which led to the discovery of the marihuana was the result of an illegal investigative detention. We agree and reverse.

Ted Alford, a Garland police officer, testified that on December 5, 1974, he was working a “special assignment for burglary of motor vehicles” as part of a “tactical unit.” While driving south on Merion Drive at 2:16 A.M., he saw three men in an automobile parked in a well-lighted hospital parking lot. The lights of the automobile were turned off.

Alford testified that he knew on the date of appellant’s arrest that the area where appellant was parked was only a short distance — about a mile — from a Kraft Food Company plant. Alford also stated that he was aware that the Kraft plant was operated twenty-four hours a day. According to Alford, he nonetheless thought the “activity” of the three individuals’ sitting in the car was suspicious and warranted an investigation. Alford therefore drove a short distance, turned around, and again approached the hospital parking lot.

As Alford drove up, he saw that the other car’s lights had been turned on. The car then turned north on Merion Drive. Alford followed the car until it turned off Merion, at which time he stopped the car.

Alford identified appellant as the driver of the car. He testified that appellant and his two companions committed no traffic violations, engaged in no criminal activity, made no furtive gestures, and took no evasive actions after Alford began his pursuit. Cf. Borner v. State, 521 S.W.2d 852, 854 (Tex.Cr.App.1975); and see McDougald v. State, 547 S.W.2d 40 (Tex.Cr.App.1977), and Faulkner v. State, 549 S.W.2d 1 (Tex.Cr.App.1976).

Alford approached the car and asked the three occupants for identification, which they provided. There is nothing in the record, however, to suggest that Alford’s purpose in stopping the appellant was to determine if he had an operator’s license, as is permitted by Art. 6687b, Sec. 13, V.A.C.S. See Faulkner v. State, supra.

Alford testified that he smelled the strong odor of burning marihuana as he approached the driver’s side of the car. As appellant and his companions were getting out of the car, Garland Police Officer Bill Connaster arrived. While Alford spoke with appellant and his companions, Con-naster searched the car. He “found a small amber vial located between the transmission hump and the right front passenger seat near the front, which contained two, what appeared to be marijuana cigarettes . ” Like Alford, Connaster testified that he smelled the odor of burning marihuana in the car.

The appellant testified that he worked at the Kraft Food Company plant in Garland and that he was on his lunch break when he and his companions were stopped by Alford. He stated that he was approximately one-half mile from the Kraft plant at the time. Appellant denied knowing that the vial containing marihuana was in the car.

Appellant and the State entered into a stipulation that the substance in the cigarettes in the vial was marihuana. The parties also stipulated that Doyle Anderson, one of appellant’s companions, had previously pleaded guilty to a charge of possessing the marihuana in the car.

In Brown v. State, 481 S.W.2d 106, 109-110, we observed that there are three classes of probable cause: probable cause to arrest, to search, and to investigate. In Ablon v. State, 537 S.W.2d 267, 268-269 (Tex.Cr.App.1976), we again held, in accord with well-established precedent, that a temporary detention of an individual for investigation is a less serious intrusion on personal freedom than an arrest.

However, it is clear that when an investigative detention is based on nothing more than an inarticulate hunch the fruits of the detention and subsequent search are inadmissible in evidence. See the opinion on rehearing in Ceniceros v. State, supra, and authorities there cited.

In Ceniceros the defendant and his companions were standing on a street corner. The officer in that case approached them solely for investigative purposes “ ‘to see if they had any business in the area.’ ” Cen iceros, supra at 55. When Ceniceros appeared nervous, the officer asked the men for identification. The men responded by pulling out their wallets. While Ceniceros was going through his wallet, a piece of foil fell to the sidewalk. The foil was found to contain heroin. We reversed because the initial detention was based on a police officer’s inarticulate hunch about wholly innocent activity.

The facts surrounding appellant’s detention in this case are indistinguishable from those in Ceniceros except that Ceniceros was afoot, while this appellant was in an automobile. Here, as in Ceniceros, we hold that the officer’s investigative action was unreasonable and thus in violation of the Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution. It was thus error for the trial court to admit in evidence the marihuana seized from appellant’s vehicle.

It follows that the judgment must be reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

The majority holds that it was unreasonable for an officer to stop a car which left a high crime area after it had been parked without lights on a street in that area. In the opinion of this writer, it was a reasonable detention and constituted good police work.

On the morning of December 5, 1974, at approximately 2:16 a. m., appellant and two companions, Doyle Anderson and Larry Warner, were arrested by Sgt. Ted Alford, a veteran with eight years’ service with the Garland Police Department. Sgt. Alford testified that he observed three individuals sitting in a car on Inwood Boulevard near Merion Drive with its lights out next to the hospital parking lot. Alford was working in plain clothes and an unmarked vehicle due to the number of burglaries of motor vehicles in that part of town. He drove past them for approximately 150-200 yards before turning around to come back and check out the vehicle and its occupants. As he came back toward appellant’s vehicle, the lights were turned on and appellant turned north on Merion Drive and then onto Forest Lane where Alford stopped him.

Alford approached the vehicle from the driver’s side and asked appellant and his two companions for identification. He noticed a strong odor of burning marihuana coming from the car. Appellant and his companions were requested to get out of the vehicle. After appellant was out but before his two companions got out of the car, Officer Connaster, a uniformed patrolman, arrived on the scene. While Alford questioned the three men as to the nature of their activities that evening, Connaster made a search of the vehicle. During the search he “. . . found a small amber vial located between the transmission hump and the right front passenger seat near the front which contained two, what appeared to be marijuana cigarettes that had a green substance inside, ...” He also smelled the odor of burning marihuana as he searched the vehicle.

Appellant testified and denied any knowledge of the vial being in the car. It was stipulated that marihuana was present in the car and that companion Anderson had been convicted of misdemeanor possession of marihuana as a result of this transaction.

In Thompson v. State, 533 S.W.2d 825 (Tex.Cr.App.1976), this Court held:

“A police officer may make an investigatory stop under appropriate circumstances even though the officer has no probable cause for arrest. An officer may have specific and articulable facts which, in the light of his experience and general knowledge, reasonably warrant such a stop. Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).”

The facts and circumstances shown herein are sufficient to justify Alford’s temporary detention for the purpose of investigation. Such an investigation is allowed since it is considered to be a lesser personal intrusion on the security of an individual. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976).

Appellant’s detention by the police was justified. The strong odor of burning marihuana in the car was sufficient to establish probable cause for the search of the car and the arrest of the appellant. See Thompson, supra; Williams v. State, 489 S.W.2d 614 (Tex.Cr.App.1973); and Clark v. State, 483 S.W.2d 465 (Tex.Cr.App.1972).

In Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974), it is written:

“The Fourth Amendment has been held not to require a policeman who lacks a precise level of information necessary for probable cause to arrest so simply shrug his shoulders and allow crime to occur or a criminal to escape. Circumstances short of probable cause for arrest may justify temporary detention for investigation and questioning. Thus neither tests of reliability demanded for showing of probable cause nor showing of probable cause is required to justify an investigative stop. A brief stop of a suspicious individual in order to determine his identity or to maintain status quo momentarily while obtaining more information may be reasonable in light of facts known to the officer at the time.”

Under the facts in this record the officers acted properly. There was no unreasonable search.

The judgment should be affirmed.

      . Alford also testified that he was wearing plain clothes and was in an unmarked car. He also stated that he was “assigned to work on burglary of motor vehicles out in that part of town.” None of this testimony allows us to infer that “that part of town” was a “high crime” area or an area which could boast of a disproportionately high number of motor vehicle burglaries. See Ceniceros v. State, 551 S.W.2d 50, 55 (Tex.Cr.App.1977), dissenting opinion on original submission (February 16, 1977) held correct and adopted in majority opinion on rehearing (May 18, 1977). See also Scott v. State, 549 S.W.2d 170 (Tex.Cr.App.1976).

      . See also Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973), and McDougald v. State, supra, where we held similar investigative stops of automobiles unreasonable.


author: GREEN, Commissioner. DOUGLAS, Judge,

text:
    Frank P. AMORELLA, Appellant, v. The STATE of Texas, Appellee.
    No. 54913.
    Court of Criminal Appeals of Texas.
    July 13, 1977.

      Don Leonard — court appointed — Fort Worth, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, James J. Heinemann and Candyce Howell, Asst. Dist. Attys., Fort Worth, for the State.
   OPINION

GREEN, Commissioner.

This appeal stems from an order revoking probation. On April 6, 1976, the appellant waived trial by jury and entered a plea of guilty before the court to the offense of burglary of a motor vehicle. See V.T.C.A. Penal Code, Section 30.04. His punishment was assessed at seven years. The imposition of sentence was suspended and appellant placed on probation. Among the probationary conditions imposed by the court was that defendant “Commit no offense against the laws of this state or of any other state or of the United States.”

On October 14, 1976, a motion to revoke appellant’s probation was filed, alleging violations of terms and conditions of probation, including that appellant “. . .on or about the 1st day of October, 1976, in the County of Tarrant and State of Texas, did then and there unlawfully, knowingly and intentionally possess a usable quantity of marijuana of less than two ounces, against the peace and dignity of the State.” On November 5, 1976 a hearing was conducted on the State’s motion to revoke probation, after which the trial court granted the motion. The court found appellant violated a condition of his probation by his unlawful possession of “a usable quantity of marijuana.”

The record reflects that on October 1, 1976, at approximately 1:30 a.m., Arlington Police Officer David Pugh observed a vehicle with the lights on and motor running parked on a large parking lot of a Woolco store in Arlington, Tarrant County. Officer Pugh was unable to estimate the number of burglaries reported in the immediate vicinity of the Woolco store during the three years he had patrolled the area, but he characterized the area as a “high crime area.” The vehicle was parked on the east side of the store immediately beside the building with its motor running. Woolco was not open for business at that time, and all other businesses in the vicinity were closed. Officer Pugh observed a person standing at the rear of the vehicle by the open car trunk. As Officer Pugh drove by, he observed two other people sitting inside the parked car. Pugh testified:

“At that time of night the businesses were closed. The subject was standing with an open trunk next to a Woolco Store and they appeared to be watching me as I drove by so I felt like it was my duty under suspicious circumstances to stop the vehicle and find out who and what they were doing there.”

When the man outside the car noticed Officer Pugh he closed the trunk, got into the car and drove from the parking lot. Officer Pugh then stopped the vehicle and requested the occupants’ identification. Appellant, a passenger in the car, informed Officer Pugh that he had no identification but that his name was “Frank Amorella.” Pugh was aware of an outstanding arrest warrant for a man of that name, and after being advised as a result of a warrant check with his sergeant and the computer operator at the police station that there was an arrest warrant for assault for a man of that name, and that the description of appellant fit that of the Frank Amorella named in the warrant, Pugh arrested appellant and transported him to the Arlington jail. Pugh conducted a preliminary search of appellant and found a “roach clip.” Pugh then placed appellant in the holdover cell and, prior to a “strip search” of appellant for narcotics, the jailer observed appellant drop something into the holding cell ashtray. The jailer examined the ashtray and found a cellophane bag containing .7 grams of marihuana.

Appellant challenges the legality of his initial arrest and thus the admissibility of the marihuana found at the end of the chain of events which followed. Appellant’s objection to the admission of the evidence during the revocation hearing was overruled. As we noted in Faulkner v. State, 549 S.W.2d 1, 2:

“If the initial arrest was invalid, the marijuana later found would be subject to suppression under the ‘fruit of the poisonous tree’ doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).”

In Thompson v. State, 533 S.W.2d 825, 826 (Tex.Cr.App.1976), this Court held:

“A police officer may make an investigatory stop under appropriate circumstances even though the officer has no probable cause for arrest. An officer may have specific and articulable facts which, in the light of his experience and general knowledge, reasonably warrant such a stop. Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).”

The justification for Officer Pugh’s initial stop rests on the following articulable facts and circumstances which he observed and from which he drew his inferences.

Pugh, a three year police veteran, sighted an automobile stopped with its motor running in the parking lot of a closed Woolco store at an unusual hour, one thirty a.m. All other businesses in that area were closed. Pugh was aware that the store was located in a “high crime area.” Pugh noted that, although the store parking lot was large enough to hold “several hundred” cars, the car was parked “immediately next to” the store. Pugh observed two men inside the car and a third man standing at the back of the vehicle with the trunk open, all of whom appeared to be watching Pugh as he drove by. As Pugh passed the car the outside man closed the trunk, got into the car, and drove away. It was under these undeniably suspicious circumstances that Officer Pugh stopped the vehicle to investigate. Compare these facts with the fact situation in Ceniceros v. State, 551 S.W.2d 50, (Tex.Cr.App., on rehearing May 18, 1977), and in Tunnell v. State, 554 S.W.2d 697, (Tex.Cr.App.1977).

In Ceniceros the arresting officer, seeing four men standing on a sidewalk at 10:20 in the morning, stopped his car, approached the men “specifically for investigative purposes to secure information and ‘to see if they had any business in the area.’ ” This Court stated: “The only facts the officer had at the initiation of his investigation were (1) a number of recent burglaries in the area and (2) four men standing together on a sidewalk at an intersection at 10:20 in the morning.” The Court held the investigative action to be unreasonable.

In Tunnell, supra, at 2:16 a.m. the officer patrolling in his car saw three men parked in a well-lighted hospital parking lot with the car lights turned off about one mile from a Kraft Food Company plant. The officer knew the Kraft plant was operated twenty-four hours a day. He thought the activity of the men sitting in the car was suspicious and warranted an investigation. He drove a short distance, turned around, and as he drove near the car he noticed its lights had been turned on. The car drove off, and the officer followed it a short distance and stopped it for investigation. As stated in the Court’s opinion, there was nothing in the record to suggest that the officer’s purpose in stopping the car was to determine if he had an operator’s license. Officer Alford testified: “. . appellant and his two companions committed no traffic violations, engaged in no criminal activity, made no furtive gestures, and took no evasive actions after Alford began his pursuit.” This Court reversed, holding that “the officer’s investigative action was unreasonable and thus in violation of the Fourth Amendment to the United States Constitution and Article I, Section 9, of the Texas Constitution.

We find that neither Ceniceros, supra, nor Tunnell, supra, is controlling in the instant case.

As we noted in Wood v. State, 515 S.W.2d 300, 305:

“The Fourth Amendment has been held not to require a policeman who lacks a precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow crime to occur or a criminal to escape. Circumstances short of probable cause for arrest may justify temporary detention for investigation and questioning. Thus, neither tests of reliability demanded for showing of probable cause nor showing of probable cause is required to justify an investigative stop. A brief stop of a suspicious individual in order to determine his identity or to maintain status quo momentarily while obtaining more information may be reasonable in light of facts known to the officer at the time.”

Viewing the facts and circumstances as a whole, we hold Pugh’s initial stop of the vehicle for the purpose of investigation was proper. Under the facts and circumstances shown by the evidence and stated above, the subsequent arrest and search of appellant were justified. No error in the admission in evidence of the contraband is reflected. Merriweather v. State, 501 S.W.2d 887 (Tex.Cr.App.); Parker v. State, 544 S.W.2d 149 (Tex.Cr.App.).

The judgment is affirmed.

Opinion approved by the Court.

DOUGLAS, Judge,

concurring.

I concur in the opinion for the reasons given by Judge Green and for the reasons in the dissenting opinions in Ceniceros v. State, 551 S.W.2d 50 (No. 52,528, delivered May 18, 1977); Tunnell v. State, 554 S.W.2d 697 (Tex.Cr.App. delivered July 13, 1977), and particularly in Scott v. State, 549 S.W.2d 170 (Tex.Cr.App.).

      . The fact that criminal activity is more likely in one geographical area than another does not by itself satisfy the standards required for an interrogatory stop. United States v. Brignoni-Ponce, 422 U.S. 873, 882, 886, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).


author: DOUGLAS, Judge. PHILLIPS, Judge,

text:
    Ralph G. ZABALA, Appellant, v. The STATE of Texas, Appellee.
    No. 54,129.
    Court of Criminal Appeals of Texas.
    July 13, 1977.
    Rehearing Denied Sept. 14, 1977.

      Frank Roberts, Killeen, for appellant.
    Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from an order revoking probation.

On November 14, 1975, appellant was convicted for the offense of aggravated assault. Punishment was assessed at ten years, probated. One of the conditions of his probation, among others, was that he commit no offense against the laws of this State or any other state or of the United States.

An amended motion to revoke probation was filed wherein it was alleged that appellant had violated condition number one of his probation by possessing marihuana, a controlled substance.

A hearing was held on June 15,1976, and an order revoking his probation was entered based on the trial court’s finding that he had intentionally and knowingly possessed a usable quantity of marihuana of more than four ounces.

In separate grounds of error he challenges the sufficiency of the evidence, the sufficiency of the motion to revoke, the legality of the search which produced the marihuana, and the failure of the trial court to require disclosure of the name of the informer and thereby abused its discretion in revoking his probation.

Detective Charles Spriggs of the Killeen Police Department testified that on May 6, 1976, he was on duty as a member of the narcotics division. That on that day he had received information in person from a confidential informer that at “. . . 119 West Avenue A in the City of Killeen, there were two Latin American males inside the residence and they were making a narcotics purchase and they were buying marihuana.” He stated that his informant said that the two individuals were about to leave and described their vehicle parked outside the residence as a 1974 AMC Gremlin bearing Texas license BGY 49. The informant told him, “If you don’t hurry up, you’re going to lose it”, because the only drugs in the residence were the one pound of marihuana, and they were about to leave. The informant also stated that the marihuana would be “. . . in a paper bag, a dark vanilla grocery bag.” Spriggs stated that he did not believe that he had time to obtain a warrant so he immediately set up surveillance at the residence. Upon his arrival there at 7:55 p. m. he saw the vehicle described to him by his informer parked in front of the residence. Approximately three to four minutes later, the front door opened and two Latin Americans emerged from the house; one of them had underneath his right arm a paper bag which was rolled up very tightly. The bag matched the description given him by the informer. Both of the individuals appeared to be very nervous. “They were just walking down the sidewalk and kept looking around to the east and to the west there on Avenue A.” The street runs east and west.

Appellant got in the driver’s side and Jesus Alegos Gonzalez, who was carrying the bag, got into the passenger’s side and they departed. Spriggs radioed Officer Hornbeck of the Uniform Patrol Division for assistance in stopping the vehicle. Spriggs kept a moving surveillance of the vehicle until the marked patrol unit caught up with them and stopped the vehicle in question at a nearby U-Tot-Em Store at approximately 8:00. He and Hornbeck looked into the vehicle and saw the same paper bag on the floor of the passenger side; it contained a green plant substance packaged like a brick which was later shown to be 15.19 ounces of marihuana.

Appellant called Gonzalez as his first witness. Gonzalez testified that he and appellant were in the same unit at Fort Hood and that they had been friends since March, 1976. He stated that he owned the Gremlin vehicle and that on the date in question he and his wife had gone to appellant’s house to pick up a small poodle dog being given to them by appellant and his wife. Gonzalez said that he then asked appellant if he wanted to go with him to see a friend. He drove to some apartments which were on the same street as the police station, that when they arrived no one was there so they waited a minute and the individual he was supposed to meet showed up. Gonzalez did not know his name. Then they left, and he told appellant, “If you want to drive, go ahead.” After they drove away they saw a patrol ear make a U-turn and come up behind them. When they saw a second patrol car he told appellant to pull into the U-Tot-Em Store because “. . .1 had to buy some things there.” After they had stopped, two officers came over to the car and removed the bag with the marihuana. He said that appellant had no knowledge of the contents of the bag.

On cross-examination Gonzalez testified that he knew appellant was on probation as he had taken him on two occasions to visit his probation officer. He said that the paper sack was already in the car when he went to Zabala’s home and that when the two of them arrived at the apartments where he was supposed to meet his friend he carried the sack inside. When they were inside Zabala went to the bathroom and he talked to the individual that had met them but, when asked if that was when he purchased the drugs, he invoked the Fifth Amendment. The only statement Gonzalez would make is that “I went to the house there, and Mr. Zabala didn’t have any knowledge of anything.” He further stated that he was familiar with the smell of marihuana in both states, burning and laying out, and that he smelled marihuana in the residence and even saw it laying around. Gonzalez said that no one else was present and that as soon as Zabala was finished using the bathroom they left. He stated that he had the sack with him and it was his sack. He admitted he had something in the sack but invoked the Fifth Amendment when asked what was in the sack. Gonzalez then said that he told appellant to drive and handed him the key when they got to the car.

Next, Elizabeth Zabala, appellant’s wife, testified that Gonzalez and his wife had been to their house on the evening in question and that her husband had left with Gonzalez to go to a friend’s house. She stated that they knew each other well as her husband had been riding to work with him every day for four months because their car was broken down.

Appellant then testified that he was in fact with Gonzalez on May 6,1976, and that the Gonzalez’ had been over to his home that evening. He said that approximately fifteen minutes after they were there Gonzalez asked him if he wanted to go for a ride to a friend’s house without telling him the friend’s name or address. Nor did he ask Gonzalez why they were going there, and he had never been there before. When they arrived Gonzalez knocked and no one answered, but before they could leave an individual walked up, opened the door and they went into the house. Gonzalez did not appear to know the individual. Zabala then stated that he went to the restroom and when he returned they left. He said that he did not notice Gonzalez carrying a paper sack when they went up to the door but that he had a “wrapped” paper sack when they left. He did not see what was placed in the sack nor was he present when any conversation was held regarding the sack. Zabala stated that Gonzalez only said, “Let’s go home,” and then asked him if he wanted to drive. He denied any knowledge of the marihuana.

On cross-examination appellant said that Gonzalez was a “fellow worker” and he had borrowed Gonzalez’ car on occasion because his was broken down. He denied ever smelling marihuana or being able to recognize the odor and stated that he did not smell the odor of marihuana at the house nor did he see any laying around when they were there. He said that he went immediately to the restroom because he was sick and had been suffering from diarrhea. Further, he again said that Gonzalez told him they were going to a friend’s house but that Gonzalez did not know his own friend’s name.

Considering the evidence that supports the trial court’s order and rejecting the other evidence as the trial court was authorized to do and apparently did do in view of the order revoking probation, we find that evidence sufficient to support the trial court’s order. The unlawful possession of marihuana need not be exclusive to reflect a violation of the law. Ellis v. State, 456 S.W.2d 398 (Tex.Cr.App. 1970).

As for appellant’s contention that the motion to revoke probation does not allege an offense in violation of the laws of this State, it is without merit. The State’s motion to revoke probation alleged “that on or about the 6th day of May, 1976 in the County of Bell, the State of Texas, he did then and there knowingly and intentionally possess a controlled substance, to wit: a usable quantity of marihuana of more than 4 (four) ounces.” The appellant urges that the motion was insufficient because it did not allege that the possession of the marihuana was “unlawful.” The allegation was sufficient. Cook v. State, 467 S.W.2d 421 (Tex.Cr.App. 1971).

Next, he argues that it was error for the court to refuse to require the State to disclose the informer’s name. There is no evidence in the record before us that the informer in any way participated in the offense, was present at the time of the transaction or that he was a witness as to whether appellant had committed the act. In fact, both Gonzalez and appellant testified that only one other person was present in the house and that was Gonzalez’ friend.

In Aguilar v. State, 444 S.W.2d 935, 937 (Tex.Cr.App. 1969), this Court stated:

“. . . There was no showing that the informer participated in the offense, was present at the time, or was a material witness as to whether the appellant had committed the act charged. Absent such a showing, the trial court did not err in refusing to require the State to disclose the name of the informer.”

See Royal v. State, 448 S.W.2d 470 (Tex.Cr.App. 1969), and Ware v. State, 467 S.W.2d 256 (Tex.Cr.App. 1971).

We hold that the court did not err in refusing to require the officer to reveal the name of the informant.

Lastly, he contends that the trial court erred in admitting evidence that was obtained as a result of an illegal search and arrest without probable cause.

It appears that there was probable cause to make the arrest and search, but it is not necessary to decide the question because Gonzalez, in testifying for appellant, admitted the possession of the bag which was shown to contain the marihuana.

No abuse of discretion having been shown, the judgment is affirmed.

DISSENTING OPINION

PHILLIPS, Judge,

dissenting.

I dissent to the majority’s conclusion that the trial judge did not abuse his discretion in ordering appellant’s probation revoked. I would hold the evidence insufficient to support a finding that appellant had intentionally and knowingly possessed a usable quantity of marihuana.

The only evidence brought out at trial which could be viewed as even marginally incriminating was that:

(1) Appellant accompanied Gonzalez to the home of an unnamed friend where a purchase of marihuana was made.

(2) Marihuana was visible in the house and there was an odor of burnt marihuana in the house.

(3) Appellant drove Gonzalez’ ear at a time when Gonzalez was in possession of a wrapped bag of marihuana.

The arresting officer testified that as appellant and Gonzalez left the house with Gonzalez carrying a bag, “they were just walking down the sidewalk and kept looking around to the east and to the west there on Avenue A.” However, on cross examination the officer admitted that his offense report only stated that Gonzalez was looking around nervously and mentioned nothing about appellant. He also admitted that his recollection of events would be fresher at the time the offense report was made than at the time of trial.

To establish unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control and management over the contraband, and (2) that the accused knew that the matter possessed was contraband. Rice v. State, Tex.Cr.App., 548 S.W.2d 725. The State has failed to establish either of these elements sufficiently, even under the lower standard of proof involved in a probation revocation proceeding. Scamardo v. State, Tex.Cr.App., 517 S.W.2d 293.

The fact that appellant was present in the car when the contraband was found is not sufficient to show possession in the absence of direct or circumstantial evidence connecting him to the prohibited item. Hernandez v. State, Tex.Cr.App., 517 S.W.2d 782. As in Hernandez, there was no evidence presented here to directly link appellant to the contraband. He made no attempt to escape, no incriminating statements to the police at the time of arrest, and no gestures in the direction of the marihuana. Additionally, the marihuana was not in plain view at the time of arrest and Gonzalez and appellant each testified that the entire time they were at the unnamed friend’s home appellant was in the bathroom because he was ill.

In reversing the recent case of Presswood v. State, Tex.Cr.App., 548 S.W.2d 398, 399 on sufficiency grounds, this Court noted:

“The only evidence in the record tending to establish possession was merely that the appellant was the driver of the automobile at the time Officer Keesy approached it. The record does not reflect how long appellant was in possession or control of the automobile, nor does it show to whom the automobile belonged. The marihuana was found wrapped inside a bank bag which was in the glove compartment of the automobile. There was no marihuana found on either the appellant or his passenger. There is no testimony indicating that either the appellant or his passenger was under the influence of marihuana. Neither Officers Keesy or Kuhn testified that they smelled the odor of marihuana in or around the automobile.”

As in Presswood, the facts here indicate that no marihuana was found on either appellant or the passenger; there was no testimony that either of the men was under the influence of marihuana; and the arresting officers did not testify that they smelled the odor of marihuana in or around the car. Unlike Presswood, the record here clearly shows that appellant was in possession of the car for only a few blocks prior to his arrest and it further shows that Gonzalez, at whose feet the contraband was found in a wrapped bag, was the ear’s owner and had asked appellant to drive.

The record before us is barren of direct evidence establishing appellant’s possession of the controlled substance. Furthermore, the variety of inferences which could be drawn from the circumstantial evidence was such that the evidence was insufficient to support a finding that appellant knowingly possessed marihuana.

Lastly, the record is also devoid of evidence that appellant was familiar with the odor of marihuana in any state: fresh, burning, or burnt. There was no testimony that appellant was present in any room where marihuana was openly displayed or that he would recognize the substance as such. Once again, I must dissent to the practice of imputing knowledge of the smell of marihuana to citizens who have not had the benefit of police academy training. See Armstrong v. State, Tex.Cr.App., 542 S.W.2d 119; dissenting opinion in. Duff v. State, Tex.Cr.App., 546 S.W.2d 283.

Because the State failed to meet either prong of its burden under Hernandez v. State, Tex.Cr.App., 538 S.W.2d 127, and the cases discussed above, I would find an abuse of discretion in the trial judge’s order revoking probation. For these reasons, I respectfully dissent.

ROBERTS, Judge, joins.


author: STEPHENSON, Justice.

text:
    Fred HERRON et ux., Appellants, v. H. L. LACKEY, Appellee.
    No. 7788.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 24, 1977.
    Rehearing Denied March 24, 1977.

      Glen L. Kirby, Kountze, for appellants.
    L. Roger Ratliff, Silsbee, for appellee.
   STEPHENSON, Justice.

Plaintiffs, Fred Herron and wife, Ruby, as owners, filed this suit against defendant, H. L. Lackey, as contractor for breach of a contract to build their home. Defendant filed a cross-action against plaintiffs for the balance due on the contract and for other relief. Trial was by jury and judgment was rendered upon part of the issues and disregarding part of the issues. Neither party was satisfied and both have appealed. The parties will be referred to here as they were in the trial court.

These parties entered into a written contract for the construction of a home, and plaintiffs also executed a note in the amount of $48,200 together with a Mechanics and Materialman’s Lien to secure its payment. Defendant assigned the note and lien to a Silsbee bank which advanced him $38,000 as the work progressed. The parties fell into general disagreement, and the contract was not completed. When the bank was not paid, it posted notices to sell the property involved. Plaintiffs paid the bank $40,957.06; and it reassigned to them their note together with defendants’ individual notes which he had given the bank as he drew money. The defendant filed a lien, and plaintiffs filed this suit.

Jury Findings

The jury made the following findings in substance:

1. $7,783 was the amount of money reasonably necessary to complete the improvements in substantial compliance with the plans and specifications.

2. Defendant failed to construct in a good and workmanlike manner any of the improvements on the home in question.

3. Such failure caused plaintiffs to be damaged in the sum of $375.

4. Defendant’s failure to complete the improvements directly resulted from the acts or omissions on the part of defendant, his employees or sub-contractors.

5. Defendant’s failure to complete the improvement on time damaged plaintiffs in the sum of $3,000.

6. Defendant’s failure to complete the improvement directly resulted from extra work and material requested by plaintiffs and plaintiffs’ unduly and unreasonably interfering with plaintiffs’ work.

7. The acts and omission by plaintiffs resulted in added and extra expense to defendant.

8. $2,400 would fairly and reasonably compensate defendant for such added and extra general expense.

9. $3,800 would fairly and reasonably compensate defendant for extra work and material provided by defendant at plaintiffs’ request.

10. $7,500 was a reasonable attorney’s fee for plaintiffs’ attorney for services rendered in this case.

Judgment

The judgment provided for defendant to recover $6,597.36 from plaintiffs with interest at the rate of 6 percent from the date of the judgment until paid.

Such judgment recited that $6,972.36 was for labor and material furnished by defendant to plaintiffs, after deducting $375 for damages to plaintiffs as found by the jury for defendant’s unworkmanlike construction.

Such judgment also provided that plaintiffs should not recover the damages found by jury because defendant did not complete the improvements on time because the jury also found such delay was caused by plaintiffs.

The court denied any recovery for defendant’s attorneys’ fee and divided the cost one-half to each party.

Opinion

As stated above, both parties have appealed this case even though it is apparent that each was successful as to part of the relief sought. The plaintiffs have twenty-eight points of error, and defendant has what he has designated as ten counterpoints and one cross-point.

Plaintiffs’ first points of error are that the trial court erred in rendering judgment for defendant for a balance of the contract note because defendant had assigned the note to the bank and had not redeemed it. It is also argued that plaintiffs were the owners and holders of the note by assignment from the bank.

This court finds nothing to indicate the trial court was rendering judgment upon the note but, on the contrary, was rendering judgment upon the contract itself. Defendant had agreed to build the house for which plaintiffs agreed to pay $48,200. The jury found it would take $7,783 to complete the house, leaving the balance due on the contract. The note in question was merely evidence of the amount due under the contract so that, together with the lien, interim financing could be obtained.

Defendant’s cross-action was on the contract to recover the balance due, and it was not error for the trial court to render judgment on such contract. Kleiner v. Eubank, 358 S.W.2d 902 (Tex.Civ.App.—Austin 1962, writ ref’d n.r.e); Sullivan v. Dubis, 271 S.W.2d 316 (Tex.Civ.App.—Galveston 1954, writ ref’d n.r.e); Hahl v. Deutsch, 42 Tex.Civ.App. 1, 94 S.W. 443 (Houston 1906, no writ); 13 Tex.Jur.2d 552, Contracts § 303 (1960); 17A C.J.S. Contracts §§ 511, 828, et seq. (1963).

Plaintiffs’ next point of error, in effect, is that there was no evidence to support the jury finding of $7,783 as to the reasonable cost of completion because defendant had judicially admitted the cost to be $8,033. It is noted that this is a difference of exactly $250.

This case has been extremely hard fought, as evidenced by the five volumes of statement of facts. Involved in the argument about this point of error is the question as to whether $250.22 for fluorescent fixtures and electric chimes are extras or to be included in the $500 allowed for electric fixtures.

It is contended by plaintiffs that in view of deposition testimony, a request for admission directed to defendant should be deemed admitted under Tex.R.Civ.P. 169. The deposition referred to is not a part of the record before this court.

Plaintiffs in their pleading claimed the reasonable cost of completion to be $15,-500. They offered in evidence the fact that they paid $14,373.82 to Floyd Cooper to complete the house. The amount found by the jury is the one contended for by defendant. The trial court did not deem the request to be admitted and that action is not made a point of error before this court. There is evidence to support the jury finding, and the point is overruled.

Plaintiffs’ next point of error is that the trial court erred in not allowing them to recover the $3,000 in damages which the jury found because defendant did not complete the contract on time.

As shown above as Finding 4, the jury first found that defendant’s failure to complete the improvements directly resulted from acts or omissions on the part of defendant and/or his employees and/or subcontractors. Also, as shown above as Finding 6, the jury found defendant’s failure to complete the improvements directly resulted from extra work and materials requested by plaintiffs, and they unduly and unreasonably interfered with defendant during the course of construction. The jury findings that the failure to complete the improvements directly resulted from the acts or omissions of both the defendant and plaintiffs could not serve as a basis for plaintiffs to recover damages. The point is overruled.

Plaintiffs have an alternative point of error that the trial court erred in overruling their amended motion for new trial because of the irreconcilable conflict in the two jury findings mentioned above. Neither of these issues asked whether the acts or omissions of either party was the sole cause of the failure to complete the improvements. The jury apparently felt that such failure was caused by both parties. The situation is similar to one in which there is more than one proximate cause of an incident. The point is overruled.

There is a cluster of points of error as to the method of submitting the damage issues as to plaintiffs’ actions. The use of the word “extra” in two of the issues might at first blush appear to be submitting the same element of damage in both issues. However, the definitions adequately take care of this problem. The complaint that such issues are duplicitous and constitute a global submission is answered by the amendment to Tex.R.Civ.P. 277 which became effective September 1, 1973. That rule now permits the submission of broad issues and provides that it shall not be objectionable that a question is general or includes a combination of elements or issues. These points of error are overruled.

After the bank had posted notice of a trustee’s sale, as mentioned earlier in this opinion, defendant executed a “Lien Claim and Affidavit” and filed it in the Mechanic’s and Materialman’s Records in the office of the County Clerk of Hardin County. Plaintiffs alleged such action by defendant constituted a tortious wrong for which they were entitled to damages. Plaintiffs contend here that the trial court erred in refusing to submit a series of issues asking if the lien affidavit and claim was false and if plaintiffs had been damaged thereby. Plaintiffs had alleged and offered evidence to show that they could not obtain financing on their house after such affidavit and claim was filed. Such affidavit and claim states it is in the amount of $58,149.51, including $9,949.51 for “extras”, and that it is for furnished labor and materials and “extras” according to a list attached to it. This point is overruled.

The undisputed evidence shows defendant was entitled to recover some balance under the original contract, and some amount of money for the “extras” provided. Under the law prevailing in this state, if the original contract price had been paid in full, defendant could perfect a lien for “extras”. See Rice v. Brown, 296 S.W. 495 (Tex.Comm’n App. 1927, opinion adopted). The judgment entered by the trial court demonstrates that defendant had some amount of money due him. There is no evidence in this record that it was the amount of money shown in the affidavit and claim that prevented plaintiffs from being able to refinance their home, but only the fact that there was a lien.

This court has carefully considered plaintiffs’ remaining point of error and defendant’s cross-point, and, finding no merit to them, they are overruled.

We have made a careful review of the record before us and have been unable to determine how the trial court arrived at the amount of money granted to defendant in such judgment. We conclude that it was error for the trial court to enter the judgment before us upon the state of the jury findings and remaining portion of the record. This Court of Civil Appeals has the power to render the judgment which it deems should have been rendered by the trial court where it appears on the face of the record that modification in the judgment should be made and justice of the case requires it. Carter v. Barclay, 476 S.W.2d 909 (Tex.Civ.App.—Amarillo 1972, no writ); Wofford v. Miller, 381 S.W.2d 640 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n.r.e.). We proceed to render the judgment which should have been rendered by the trial court.

Judgment is rendered for defendant in the amount of $5,785. That amount was arrived at as follows: The contract price was $48,200 from which defendant received $38,000 as draws from the bank, which left a balance due defendant, under the contract, of $10,200; less $7,783 which the jury found to be the reasonable cost of completing the home and less $375 which the jury found to be plaintiffs’ damage because the work was not done in a workmanlike manner, leaving a balance due defendant of $2,042; plus $6,200, which was the total amount of damages the jury found defendant was entitled to because of interference and extras, making a total of $8,242; less $2,457, which was the amount paid by plaintiffs to the bank above the $38,000 in order to prevent a foreclosure, leaving a balance of $5,785. Such amount to draw interest at the rate of nine percent per annum from the date this opinion is handed down. All other relief by either party is denied, and all other points of error, counterpoints and cross-points are overruled. All cost in the trial court and in this court are divided one-half to plaintiffs and one-half to defendant.

The judgment of the trial court is reformed as above set forth and as reformed is affirmed.

REFORMED and AFFIRMED.