author: DOUGLAS, Judge. ROBERTS, Judge,

text:
    Virgil John ETCHIESON, Appellant, v. The STATE of Texas, Appellee.
    No. 53167.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 1, 1978.
    Rehearing Denied Nov. 29, 1978.

      Emmett Colvin, Dallas, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Gerald A. Banks, Jon Spar-ling and Kelly W. Loving, Asst. Dist. Attys., Dallas, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

DOUGLAS, Judge.

Virgil John Etchieson appeals from his conviction for the offense of aggravated promotion of prostitution, as denounced by V.T.C.A., Penal Code, Section 43.04. The jury assessed punishment at ten years’ confinement and a $5,000.00 fine. The judgment was affirmed in a prior per curiam opinion 549 S.W.2d 409.

The record shows that appellant was engaged in running a “call-girl” type operation from his lakehouse on Lake Dallas. The instant offense is alleged to have occurred on December 18, 1974. He was arrested on December 20, 1974 at the time of the execution of a search warrant by officers at his lake home on that date.

One of the rooms in his home was used as an office. It contained, among other things, telephones, recording equipment, and automatic answering devices. Also found in the room was a “trick list” described by officers as a list of potential or actual customers for prostitutes. The list was also coded to reflect such information as wife answers the phone, nosey secretary, “gear”, check good and don’t take check. It also contained the names of almost fifty available prostitutes. A customer could obtain the services of one of the prostitutes through the use of an escort service. A customer would call the listed number of the operation and the automatic answering service would tell the caller to leave his name and telephone number and he would be called back. Prior to being called back, the customer’s name would be checked against the “trick list” and if all was in order the call would be returned and a date made. A prostitute would then be sent to fulfill the commitment. Each return call reflected was shown to have been made by Pamela Lou Wood, also known as “Cyn.”

The events leading to appellant’s arrest and exposure of his operation were brought about by the cooperation of a prostitute named Frances Witherspoon and a police informer named Jimmy Hopgood with officers of the Dallas Police Department’s vice squad.

The initial contact with appellant’s operation was established on December 8, 1974, by Sergeant D. F. Fowler through Wither-spoon, who was also known as “Sabrina.” Witherspoon placed a call to Wood on appellant’s unlisted telephone number, 231-9061, and told Wood that she had a trick that she was unable to service because of a recent abortion and requested that she take care of him. Wood assured Witherspoon that he would be taken care of because she had vouched for him. The name of Sam Williams was given to Wood, an alias used by Hopgood.

On December 10, 1974, a date was arranged for Hopgood using the name Williams through Wood at the Ramada Inn Convention Center in Dallas. Deborah Walker, known as Sandy, kept the date and accommodated Hopgood.

Shortly thereafter, Fowler had a series of conversations with Wood using Hopgood’s alias. It was during these conversations that Fowler arranged a party involving the seven prostitutes who were arrested on December 18,1974, at a hotel in Dallas. Fowler had told Wood that there was to be a MasterCharge seminar held at the hotel and it was his desire to give a Christmas party for the seven men attending. Wood agreed that seven girls would be furnished and that the girls would provide a lesbian-type show first and then each of the men would have sexual intercourse with one of the prostitutes.

Through the use of fellow police officers and a few cooperating civilians, Fowler was able to assemble six men at the designated hotel room. The women began arriving individually at nine o’clock p. m. Upon arrival they all undressed and began performing their show. Fowler, in order to make his case against the women involved, stopped them and had the women pair off with the men before continuing the show. Each woman was then paid the agreed price of $200 for her services. Fowler, who had a radio taped to his body, then transmitted a pre-arranged signal to officers waiting in a room across the hall. The officers entered and arrested all seven of the prostitutes. The names of all seven prostitutes were found in appellant’s files at his office in his lake home.

On the basis of this information as well as other information Sergeant Roger Duncan, also of the vice squad, filed an affidavit which was used to obtain a search warrant from the Honorable Robert L. Sparks of Denton County to be executed on appellant’s lake home. Appellant and Wood were both arrested at the time the warrant was executed.

Initially, appellant contends that the trial court erred in failing to require the State to disclose the identity of the informant. At the hearing on appellant’s motion to disclose the informant’s identity, Sergeant Fowler testified that prior to the arrest of the seven prostitutes at the hotel on December 18,1974, he had discussed arrangements for the party with Pamela Wood by calling her at 231-9061 on three occasions and again a fourth time on the day of the party. He related that on December 18, 1974, he met with Sergeant Duncan near a pay telephone on Harry Hines Boulevard. Someone was with Duncan, but that person did not have anything to do with or play any part in making the arrangements for the seven prostitutes to come to the hotel to the alleged Christmas party on that evening. Fowler further testified that he had no idea that anyone would be with Duncan when they had arranged to meet that afternoon.

However, it did not matter whether or not Duncan had anyone with him. After he had placed the fourth call to Wood and given her the room numbers at the hotel where the girls were to go, he told Duncan the substance of his telephone conversation in a quiet manner so that it could not be heard by the individual who was with him. Fowler also testified that the person who was with Duncan was not present at the time the seven prostitutes were arrested at the hotel. To his knowledge that individual was nowhere near the hotel. Fowler emphasized that all of the events leading up to having the girls sent to the hotel on the night of December 18, 1974, were done without any help whatsoever or any effort on the part of the person who was with Duncan the afternoon of December 18. He also admitted that he knew who the person was, that he feared for the person’s life if required to disclose his identity. “The man with Roger Duncan had nothing to do whatsoever with the entire set up of this party in any way.”

Likewise, Sergeant Duncan testified that he himself had not been involved in any way with helping Sergeant Fowler arrange the party and that the confidential informant who had given him his information had been working with him in attempting to clear up the prostitution activities of appellant. Their efforts were being made simultaneous with efforts by Fowler. Duncan stated that he had not told his informant anything about Fowler’s attempts to set up a party with the prostitutes through appellant or Pam Wood. He acknowledged that his informant had been with him on the afternoon of December 18, 1974, but stated that it had not been pre-arranged that he and Fowler and the informant meet jointly. He stated that during the course of Fowler’s conversation with Wood on the afternoon of December 18 he was close enough to Fowler to overhear Fowler’s portion of the conversation but his informant was a few feet away from him on the other side and that when Fowler had completed his conversation he informed only him and not the informant of the full gist of the conversation. Once Fowler’s conversation had been completed, Fowler departed and Duncan and his informant left to go their separate way. Duncan also testified that he was present that night at the hotel and had actually participated in the arrest of the seven prostitutes there but that his informant was not present. When questioned about the statement in his affidavit, “On December 18, 1974, the informant and an undercover agent of the Dallas Police Department called 231-9061 and requested seven (7) females for prostitution purposes to be sent to their hotel,” Duncan related that what he meant was that the informant was present at the time Fowler made the call but that Fowler had made the call personally and did not know the purpose of the call nor to whom Fowler was talking. Further, the reference to “their hotel” in the affidavit was the “ . . . hotel that Sgt. Fowler had prearranged and the other undercover officers working with Sgt. Fowler.”

In his brief, appellant quotes from Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, wherein it was written:

“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informant’s testimony, and other relevant factors.”

However, the Court also wrote:

“ . . . The purpose of the privilege (informant’s privilege) is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.”

The identity of an informant need not be disclosed unless (1) the informant participated in the offense; (2) was present at the time of the offense or arrest; (3) was otherwise shown to be a material witness to the transaction or as to whether appellant knowingly committed the act charged. Carmouche v. State, 540 S.W.2d 701 (Tex. Cr.App.1976), and cases cited therein. In the instant case the informant was not present at the time appellant was arrested nor was the informant a participant in the offense. Appellant contends, however, that the informant could be a material witness as to whether or not Duncan relied on credible information in making his affidavit. He argues that the statement in the affidavit wherein Duncan talks about the telephone call made by Fowler on December 18, 1974, is sufficient to show the informant’s participation in the offense. Appellant relies upon James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973). In James, the informant brought the defendant and the undercover agent together and was present when the sale of the marihuana was consummated. The informant in the instant case was neither present at the time the prostitutes were arrested nor did he initiate or participate in establishing initial contact or making arrangements with appellant for the prostitutes to be present at the hotel on December 18, 1974. The James case is not applicable. See also Carmouche v. State, supra.

Appellant next contends that the search warrant was invalid. Hearings on the motion to suppress evidence were held on April 4, April 18 and April 25,1975. We conclude that trial court properly overruled the motion for reasons which follow.

He argues that the affidavit was insufficient to establish probable cause. Under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the affidavit must contain (1) the underlying circumstances which led to the informant's conclusion of guilt, and (2) the underlying circumstances which led the affiant to believe that the informant was credible and reliable. The affidavit in the instant case contains more than enough information to satisfy both prongs of the Aguilar test. This affidavit, dated December 20, 1974, reads as follows:

“MY BELIEF OF THE AFORESAID STATEMENT IS BASED ON THE FOLLOWING FACTS:
“I have been informed of the foregoing set out facts by a person whom I know to be reliable, credible and trustworthy, who states the following facts: I, the affiant, received information from a confidential informant on numerous occasions, most recently on December 16, 1974, that Virgil John Etchieson is operating a prostitution enterprise from the above mentioned location. The informant stated that he visited the location on December 16,1974, and observed Virgil John Etchieson discussing the price for a date of prostitution with an unknown date. The informant also stated that books containing names and telephone numbers of male persons were referred to when male persons called Virgil John Etchieson requesting dates of prostitution. Virgil John Etchieson is a known pimp and character and has been convicted for procuring and prostitution offenses in the past. I, the affiant, have received information from this informant in the past on at least five different occasions and on each occasion the information proved to be reliable, true, and correct. On December 17, 1974 I, the affiant, observed the informant call 231-9061, a phone number registered to Virgil John Etchieson at the above mentioned address, and request a date of prostitution. A female answered the call and described herself as ‘a red-headed girl called Sin’, and she agreed to send the informant a woman to fill a straight date of prostitution for the sum of $50.00. The informant stated that the prostitute did in fact meet him and filled a date of prostitution with him for the sum of $50.00. On December 18, 1974, the informant and an undercover officer of the Dallas Police Department called 231-9061 and requested seven (7) females for prostitution purposes be sent to their hotel. The female known only as ‘Sin’ again answered the call and stated that she would send seven (7) prostitutes to their location to perform straight dates, french dates, and show dates of prostitution for the sum of $200.00 for each prostitute. The prostitutes did in fact come to the designated location and did agree to the above described dates of prostitution, were paid by the undercover officer and then arrested for Violation Section 43.02 (Prostitution) of the Texas Penal Code. The phone number called on each occasion is registered to Virgil John Etchieson the known pimp. The information on who the telephone is registered to was obtained after Dallas Police Department Officers obtained a court order to get the information. The informant’s information has always been reliable, true, and correct.”

Appellant asserts the search warrant was invalid because it was based on intentional misrepresentations by the affiant, Officer Duncan. The alleged misrepresentations center on Duncan’s testimony at the hearings on the motions to suppress and to disclose the identity of the informant.

The record shows that Judge Sparks questioned Duncan about the affidavit prior to issuing the search warrant. Much of Duncan’s testimony was the same testimony which has been set out in the discussion of appellant’s first ground of error.

The judge had before him evidence from which he could conclude that the informant was not present at the time of the arrests on December 18 and 20, and that he was not a material witness in any respect. While there appear to be some minor discrepancies between Duncan’s testimony and the facts set forth in the affidavit, the record before us supplies no basis for a determination that the search warrant was based upon intentional misrepresentations by the affiant. The judge was the sole judge of the credibility of the witnesses and the facts at the pretrial hearings. See Draper v. State, 539 S.W.2d 61 (Tex.Cr.App.1976). He observed Duncan’s demeanor and the manner in which he testified and determined that the affidavit was valid. No error is shown.

Nor do we find merit in appellant’s attack on the sufficiency of the description of the premises in the warrant due to the fact that the residence was on a rural route and that there was no box with such a number on it located in front of the place and that the house searched was not red and green brick. The description contained in both the affidavit and the warrant is: “A residence, split-level, red and green brick, located at Route 3, Box 435, Lewisville, Denton County, Texas.” (Emphasis supplied). It further states that the premises was occupied, possessed, controlled and under the charge of Virgil John Etchieson w/m/48. The record reflects that the premises searched was a residence, split-level, red brick with green trim, with the address of Route 3, Box 435, Lewisville, Den-ton County, Texas, and that the premises were occupied by Virgil John Etchieson who was a white male.

Such minor discrepancies, if any, in a search warrant otherwise sufficiently describing the general location of the premises and specifically describing the premises themselves will not vitiate a search warrant for insufficient description. All that is required is that there be sufficient definiteness to enable the officer to locate the property and distinguish it from other places in the community. Smith v. State, 478 S.W.2d 518 (Tex.Cr.App.1972).

The contention that the seizure of his records from his office in his home violated his Fourth and Fifth Amendment rights is without merit. In Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), the Supreme Court of the United States held that the search of an individual’s office for business records, their seizure, and subsequent introduction into evidence, did not offend the Fifth Amendment nor did such a search warrant as in the instant case offend the accused’s Fourth Amendment rights.

We have reviewed the record in its entirety and find that the remaining attacks made by appellant on the sufficiency of the affidavit and search warrant are without merit.

Next, he contends that venue was improper in Dallas County and that the trial court was without jurisdiction to try the offense. At the conclusion of the evidence, he moved for an instructed verdict but did not mention venue. His motion, in substance, is as follows:

“The evidence is wholly insufficient to establish jurisdiction of the offense or the persons of the defendants.”

There is a distinct difference between jurisdiction and venue. Jurisdiction concerns the authority or power of a court to try a case. Practically all, if not all, district courts have the authority to try felony cases. Venue has to do with the place or county where a case may be tried.

The same contention was raised in Bass v. State, 464 S.W.2d 668 (Tex.Cr.App.1971), where we held that such an objection did not put the trial court on notice that venue had not been proven.

Lastly, he contends that the trial court improperly admitted into evidence the extraneous offense involving the procurement of Brenda Russell for prostitution purposes. V.T.C.A., Penal Code, Section 43.04, under which he was convicted provides:

“(a) A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes.
“(b) An offense under this section is a felony of the third degree.”

Russell’s testimony as to having been recruited for prostitution by appellant and operated from his lakehouse as well as the fact that she knew that it was appellant’s house because he had told her so was admissible as evidence of appellant’s continuing course of conduct in using the lake-house as well as engaging in a prostitution enterprise as prohibited by Section 43.04, supra. It is of no consequence that Russell’s part in appellant’s operation occurred some two or three months following the instant offense for which appellant has been convicted. Here, as in Shappley v. State, 520 S.W.2d 766 (Tex.Cr.App.1975), proof of the extraneous offense by appellant was admissible to show his intent and knowledge as well as the purpose of the enterprise which he conducted from his lakehouse. While it is true that an accused is entitled to be tried on the accusation made in the State’s pleading and not for some collateral crimes or being a criminal generally, it is equally consistent and recognized by this Court that this is the general rule; however, several exceptions have been established. The most important ones relating to this case are those of scienter and common plan, scheme or design. Shappley v. State, supra. Albrecht v. State, 286 S.W.2d 97 (Tex.Cr.App.1972). We hold that the testimony of Russell was admissible in the instant case as evidence of appellant’s intent and motive to commit the offense of aggravated promotion of prostitution as this was a circumstantial evidence case and extraneous offenses are admissible to show motive, intent and design as part of the State’s direct evidence. See Albrecht v. State, supra.

No reversible error having been shown, the motion for rehearing is overruled.

VOLLERS, J., not participating.

ROBERTS, Judge,

dissenting.

Appellant’s principal contentions are that the court should have granted his motion to suppress and his motion to require the State to disclose the identity of its informant. A proper consideration of these contentions requires that we examine the pertinent events in the order in which they occurred.

I.

The affidavit supporting the search warrant was sworn to on December 20,1974, by Officer Roger Duncan. It is set out in full in the majority opinion, and therefore only a small part of it will be repeated here:

“On December 18, 1974, the informant and an undercover officer of the Dallas Police Department called 231-9061 and requested seven (7) females for prostitution purposes be sent to their hotel. The female known only as ‘Sin’ again answered the call and stated that she would send seven (7) prostitutes to their location to perform straight dates, french dates, and show dates of prostitution.” (Emphasis added.)

Prior to trial appellant filed his motion to suppress, and the trial court held several hearings on the motion. The first of these was on April 4, 1975. At that time Officer Duncan testified that he prepared the affidavit, typed it himself, signed it, and swore to it on his oath before the magistrate. He stated that Sergeant B. F. Fowler was the undercover officer who was referred to but not named in the affidavit.

On cross-examination Duncan was asked “which of the allegations in this affidavit are based upon Sergeant Fowler’s information that he had given you?” The following exchange then took place:

“A Yes, I can. Towards the bottom of the affidavit where it states on December the 18th — about middleways through the affidavit — ‘On December the 18th, 1974, the informant and the undercover officer of the Dallas Police Department — ,’ —that’s with reference to Sergeant Fowler.
“Q All right. So then the sentence following that, describing the activities on December the 18th, are connected with Sergeant Fowler?
“A That’s correct.
“Q All right. Are any of the other allegations contained there on the face of the affidavit pertaining to information related to you by Sergeant Fowler?
“A No, they’re not.”

At no time during this hearing did Duncan suggest that the statements in the affidavit which concerned Sergeant Fowler were untrue or distorted in any way. In fact, in testifying about the affidavit and the search warrant, Duncan indicated that he remembered all of the information in both “quite clearly.” In doing so, he thereby implied that he had nothing to say which would constitute a qualification or repudiation of the statements in the affidavit. The following exchange took place while Duncan was in the process of verifying the authenticity of the photocopies of the affidavit and search warrant:

“Q Now State’s Exhibits 1 and 2 are Xerox copies, is that correct?
“A Yes, they are.
“Q Are they, as far as you know and to the best of your knowledge, true and exact Xerox copies of the originals? “A Yes, they are.
“Q How do you know that?
“A My signature is affixed to the affidavit and I recall the information quite clearly on both copies.” (Emphasis added.)

On April 18, 1975, the trial court held a second hearing on appellant’s motion to suppress. The primary purpose of this hearing was to determine whether the search warrant was sufficiently specific in its description of the address and location of the premises to be searched. Duncan testified, and again the record reflects no retreat from the language in the affidavit.

The next hearing was held on July 8, 1975. At the beginning of the hearing the trial judge indicated that he had granted all of appellant’s motions “with the exception of the Motion to Quash and I have not ruled on the Motion to Reveal the Informant.” The record makes it clear that the motion to reveal the informant’s identity was presented to the trial court on the day of this hearing and that the State received its copy of this motion on or before the day of this hearing but after the day of the last previous hearing.

Not coincidentally, it was at this hearing that Duncan — as well as the undercover agent Fowler — first testified that the statements in the affidavit were in essence incorrect. Fowler testified that on December 18, 1974, he met Duncan and Duncan’s informant. Subsequently, in the presence of Duncan and the informant, Fowler used a pay telephone attached to the wall of a building and called appellant’s residence. The purpose of the call was to inform Pamela Wood (also called “Sin” and “Cyn”) of the location for the proposed dates of prostitution.

Fowler testified that Duncan and the informant were standing “three or four feet” away from him when he made the call. He denied that the informant listened in on or participated in the phone call, and he stated that he did not believe that the informant heard what Fowler was saying to Wood. After completing the call, Fowler quietly told Duncan that Wood had assured him that the seven prostitutes would be at the designated hotel room by nine o’clock. On re-direct examination Fowler stated that the informant had played no role in the earlier negotiations which led to the purported date with the seven prostitutes.

Duncan followed Fowler to the stand and testified that he met Fowler during the afternoon of December 18,1974. He stated that the informant was with him, but the informant was not at the location in order to help Fowler “in any way.” Duncan acknowledged that the informant was present when Fowler called Pamela Wood and that he (Duncan) was able to overhear Fowler’s portion of the call to Wood. However, according to Duncan, the informant was not as close to Fowler during the call as Duncan was.

Duncan testified that after Fowler’s call was completed he spoke with Duncan but not with the informant. Duncan stated that Fowler did not tell the informant anything about the phone call or anything about the date with the seven prostitutes.

When asked to explain the above-quoted language of his affidavit — which unequivocally indicated that Fowler and the informant were acting together in making the call to Wood — Duncan stated simply that Fowler made the call personally and that in speaking of “their hotel” he did not mean to refer to the informant in any way. On cross-examination, Duncan testified that what he meant to say in the affidavit was that the informant was merely “at the location along with the undercover officer when the call was made.” He also stated that by using the word “their” in the phrase “their hotel,” he meant to refer to the group of undercover officers who were to be at the hotel for the date with the seven prostitutes.

II.

Appellant’s initial complaint about the nondisclosure of the informant’s identity is related to his contention that his motion to suppress should have been granted. Specifically, he alleges that he needed to know who the informant was in order to show that the statements in the affidavit were false.

A.

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Supreme Court held that where the undercover informant plays a material part in the criminal occurrence which results in charges being filed against the accused, his identity must be revealed. Accord: James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973). However, in McCray v. Illinois, 386 U.S. 300, 309, 87 S.Ct. 1056, 1061, 18 L.Ed.2d 62 (1967), the Court held that Roviaro applied “where the issue was fundamental one of innocence or guilt,” and that even in such cases the Court “was unwilling to impose any absolute rule requiring disclosure of an informer’s identity.” 386 U.S., at 311, 87 S.Ct., at 1062. Instead, the Court stated, what was necessary was a case-by-case “ ‘balancing [of] the public interest in protecting the flow of information against the individual’s right to prepare his defense.’ ” 386 U.S., at 310, 87 S.Ct., at 1062, quoting from Roviaro, supra, 353 U.S., at 62, 77 S.Ct. 623.

The ultimate holding in McCray was that it was not necessary to reveal the informant’s identity where his only function in the case against the defendant was to provide information which led to a valid search of the defendant’s person. However, it should be remembered that there was no allegation or preliminary showing in McCray that the search was based on a false statement; in fact, the trial judge there was “convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant.” 386 U.S., at 305, 87 S.Ct., at 1059. Nonetheless, in its holding the McCray Court made it clear that disclosure of an informant’s identity is much more likely to be necessary where the issue is guilt or innocence than where it is the preliminary question of probable cause. See McCray, supra, 386 U.S., at 309, 311-313, 87 S.Ct. 1056.

The holding in McCray applies to the case before us. However, I believe McCray must be read in the light of the Supreme Court’s recent decision in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

B.

In Franks, the Supreme Court of Delaware had held that a defendant could in no instance challenge the truthfulness of the statements in a search warrant affidavit after the warrant had issued. The United States Supreme Court reversed, holding that:

“ . . . where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” 438 U.S., at 155-156, 98 S.Ct., at 2676-2677.

The present case goes beyond Franks. Here, as in Franks, the appellant made a substantial preliminary showing that the affiant, acting with reckless disregard for the truth, included false statements in the affidavit. Moreover, a reading of the affidavit makes it evident that the allegedly false statement was necessary to the finding of probable cause. Compare the affidavit in Franks, reproduced as Appendix A of that opinion. 438 U.S., at 172-176, 98 S.Ct., at 2685-2687.

However, in this case, appellant was given at least a partial evidentiary hearing on his allegations. He was allowed to question the affiant (Duncan) and the undercover officer (Fowler) at the hearing on July 8th. But, significantly, he was not given the name of the informant despite his clearly-alleged desire to have the informant testify in behalf of appellant’s contention “that the officers did not rely upon credible information supplied by a reliable informant.” The opinion in Franks makes it clear that allegations of deliberate or reckless falsehood in an affidavit must be specific and must be accompanied by an offer of proof.

“Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.” Id. at 171, 98 S.Ct., at 2685.

The problem in the case before us is that, because the informant’s identity was not disclosed, appellant was not able to offer proof of what the informant’s testimony would have been. In a case such as this— where there is a timely preliminary showing that the affidavit contains a recklessly false statement which is necessary to the finding of probable cause — I would hold that the trial judge must not only hold a Franks hearing, he must also require the State to reveal the name of the informant in those cases where (1) the informant played a material part in the determination of probable cause, and (2) the defense expresses a desire to present his testimony at the preliminary hearing. To hold otherwise is to take over the fact-finding function of the trial judge by assuming that he would give no credence to any of the informant’s testimony which happened to disagree with that which supported his finding of probable cause.

This appellant did make the required preliminary showing of a reckless and material falsehood; he also sought to present the testimony of the unknown informant. I would hold, under these facts, that the trial judge’s failure to require disclosure of the informant’s identity constitutes reversible error. I would also hold that, until the informant’s identity is disclosed and the appellant is given an opportunity to present his testimony, we are without power to review on appeal the issue of probable cause.

III.

Appellant’s complaint about the nondisclosure of the informant’s identity is directed not only to the issue of probable cause. Although appellant initially contends that he needed to know the informant’s name in order to show that Duncan’s affidavit was not based on probable cause, he also urges that knowledge of identity was also crucial to the issue of entrapment, which is directly related to the issue of appellant’s innocence or guilt. Appellant raised this contention in a timely manner in the trial court as part of his motion to require the State to disclose the identity of the informant.

I would hold that Roger Duncan’s sworn statements contained in his search warrant affidavit (set out in the majority opinion) were sufficient to show that the unidentified informant “helped set up the criminal occurrence and played a prominent part in it.” James v. State, supra, 493 S.W.2d at 202. It is not significant that the appellant did not raise an entrapment defense at trial. See James, supra, 493 S.W.2d at 203, 206 (dissenting opinions).

For the reasons stated, I would reverse and remand.

      . State’s Exhibits 1 and 2.

      . This latter motion bears no filemark, although the unsigned order attached to it is dated July 8, 1975. The memorandum in support of this motion is filemarked with the date July 8, 1975, as are the motion to quash the indictment, the “motion with reference to arraignment of the accused,” the motion to require endorsement of grand jury witnesses, the motion to direct the court reporter to record certain portions of the trial, the motion for inspection of grand jury testimony, the motion for disclosure of electronic surveillance evidence, and the motion requesting that the jury assess punishment. From this and the judge’s statement quoted in the text, it seems inescapable that the motion to disclose the identity of the informant first came to the court’s and the State’s attention on July 8, 1975, at the very latest.

      .See footnote 2, supra.

      . However, it should be noted that the McCray Court also quoted with approval from the Rovi-aro holding that where “ ‘the disclosure of an informer’s identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the [informer’s] privilege must give way.’ ” McCray, supra, 386 U.S., at 310, 87 S.Ct., at 1062, quoting from Roviaro, supra, 353 U.S., at 60-61, 77 S.Ct. 623.

      . Although I dissented in James, I am of course bound by the holding in that case.


source: Caselaw Access Project

author: PHILLIPS, Judge. VOLLERS, Judge,

license: Public Domain

text:
    Willie Lee FAULK, Appellant, v. The STATE of Texas, Appellee.
    No. 54141.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 29, 1978.
    Rehearing En Banc Denied Jan. 10, 1979.

      John J. C. O’Shea, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., and B. Jackson Jones, Jr., Asst. Dist. Atty., Lubbock, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of aggravated robbery. Upon his plea of not guilty before a jury, the appellant was found guilty and his punishment was assessed by the jury at confinement for a period of seven years.

In appellant’s Ground of Error No. 1 he complains that the trial court erred in failing to grant his motion to suppress certain evidence which he alleges was obtained as a result of an unlawful search and seizure.

On July 19, 1975, an armed robbery occurred at a Seven-Eleven convenience store located near the intersection of 49th Street and Memphis Avenue in Lubbock, Texas. After the victim released herself from the cold storage vault, she called the police and told them that she had just been robbed by a young black male wearing a multicolored shirt. No further description was given according to her testimony at the motion to suppress hearing. She testified that while in the cold storage vault she observed the robber exit the store and run to the south, which happened to be in the direction of 50th Street. It should also be noted that it was also probably in the direction of 51st Street, 52nd Street, 53rd Street, and every other consecutively numbered street to the south. However, 50th Street has been emphasized since it is a six-lane thoroughfare that connects east and west Lubbock. It also appears that a large segment of the black community in Lubbock lives in east Lubbock and the location of this robbery was west Lubbock. No vehicle was observed by the victim and the last she saw of the robber was his departure on foot to the south, as mentioned. This even less than general description was radioed over the police broadcast network and was received by Officer Brackeen when he was two miles from the scene of the crime. After travel-ling approximately half a mile he observed several vehicles heading east on 50th Street, one of which was occupied by a young black male. The officer made a U-turn at which point he observed the young black male’s automobile speed up slightly, the young male bend forward and to the right and then again reduce his speed. It is important to note that at no time did the young black male commit a traffic offense or any other offense within view of Officer Brack-een. On these facts, Officer Brackeen stopped the vehicle with the young black male. The vehicle stopped, Officer Brack-een ordered the occupant to exit, which order was complied with. At the time Officer Brackeen made his request, he had his weapon drawn. Upon the arrival of other officers at the scene, Officer Brackeen had the occupant out of his vehicle with his hands on top of the car and had his weapon holstered. The other police officers to arrive at the scene then proceeded to search the young black male’s automobile and discovered under the seat a hat and blue money pouch. Officer Brackeen discovered a weapon under the dash of the young black male’s vehicle.

Although appellant’s first ground of error is couched in terms of both an unreasonable and illegal search and seizure and a search and seizure of excessive scope, the discussion and arguments under that ground of error are sufficient to identify the issues for this Court to pass upon. See Article 40.-09(9) and (13), V.A.C.C.P. One of the critical and initial issues to be addressed was whether Officer Brackeen had probable cause to stop the young black male’s vehicle. In Brown v. State, 481 S.W.2d 106, this Court stated:

. . Probable cause for an officer to detain a person temporarily for investigative purposes exists where the circumstances reasonably indicate that that particular person either has or is preparing to commit a crime. [Footnote and citations omitted.]
“The inarticulate hunch, suspicion, or good faith of an arresting officer is insufficient to constitute probable cause under any of the three above named classes. [Citations omitted.] For ‘[i]f subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be “secure in their persons, houses, papers, and effects,” only in the discretion of the police.’ Beck v. Ohio, [379 U.S. 89, 85 S.Ct. 223, 11 L.Ed.2d 604 (1964)].”

Brown v. State, supra, is instructive also in determining the appropriate disposition of the instant case, besides the general propositions of law set forth therein. In that case, it was known that a robbery was committed by three armed men who escaped on foot; that the men were described by race and approximate size; that they were observed 24 hours later riding in an automobile; that they looked at the police officer; that they were observed at 1:30 a. m. on a poorly lighted and sparsely trav-elled street; and that two of the individuals made “furtive gestures” by moving their shoulders while observing the police officer. This Court noted that the fact that they were in an automobile was of no value in determining whether probable cause existed. As in this case, there was no testimony as to what type of car the armed robbers might have used or whether they used one at all. The Court resolved the question to this:

“Thus, we must first determine whether the general description of the armed robbers coupled with the movements of Ellis and Nezey would lead a reasonable and prudent man to believe that the appellants were the armed robbers.”

As mentioned in Brown v. State, supra, and of equal applicability to the case at hand, “[T]he description of the robbers contained no identifiable characteristics which would serve to distinguish them from the general populace[.]” and the “furtive gestures” of the two individuals who were looking at the police officer could not operate to “transform” the investigating officer’s “vague suspicion . . ‘into probable cause for arrest’ ” since such movement was “ ‘ambiguous conduct which the arresting officers themselves have provoked.’ ” Id. at 111, quoting from Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

It is abundantly clear that in the case at hand the police officer who stopped appellant had only one fact to connect the appellant to the armed robbery — that he was a young black male. Nowhere in the record does it disclose that the police officer observed the appellant wearing a multicolored shirt before he ordered him to exit his vehicle. Further, the so-called “furtive gestures” are as consistent with innocent activity as anything else. Also, his bending over could have resulted in the slight increase in speed of the vehicle and it is noted that the police officer stated that he observed no traffic offenses. Finally, such so-called “furtive gestures” do not bear with them the indicia of a guilty mens rea as they would had the stopping police officer been occupying a marked police vehicle. In this case, it was an unmarked police vehicle.

The only question left is whether the close temporal proximity of the armed robbery and Brackeen’s observation of the appellant in his automobile constituted a circumstance which pointed to the appellant as the robber. In Brown v. State, supra, the police officer made his observations 24 hours after the armed robbery. In the instant case, the appellant was stopped within a very short time of the robbery. We do not believe that this fact alone contributes anything to an officer’s determination of whether probable cause exists to make a stop. If it did, it would be creating a new rule which would provide that the “inarticulate hunch, suspicion, or good faith” of a police officer is sufficient grounds for making an investigatory stop so long as it is made within a specific time frame. However, where do we draw the line? There is no room for such manipulation of the probable cause doctrine. See also Scott v. State, 549 S.W.2d 170.

As was stated by this Court on rehearing in Armstrong v. State, 550 S.W.2d 25:

. . While a temporary investigative detention is allowed under certain circumstances, these circumstances must be such as to distinguish the activity of the detained person from that of any other citizen and must be based on an objective perception of events rather than the subjective feelings of the detaining officer. * * * There must be reasonable suspicion by the law enforcement officer that some activity out of the ordinary is or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to crime. [Citations omitted.] Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful.” Id. at 30-31.

This Court has consistently held that the fruits of a search do not justify the initial stop or arrest. Brown v. State, supra.

Neither are there grounds for a stopping of the appellant’s vehicle under Article 14.-03, V.A.C.C.P., since there is no showing that the appellant was seen in a suspicious place and “under circumstances which reasonably show that [he was] guilty of some felony or breach of the peace, or threatened], or [was] about to commit some offense . . . .”

Thus, there being no probable cause for the stopping of appellant’s vehicle, the trial court erred in failing to grant appellant’s motion to suppress the evidence seized pursuant to the unlawful stop. See Article I, Section 9, Texas Constitution; United States Constitution, Fourth Amendment.

Since we cannot conclude that the use of this illegally seized evidence was harmless beyond a reasonable doubt, the judgment is reversed and the cause remanded.

VOLLERS, Judge,

dissenting.

The majority passes upon the question presented in this case on the mistaken assumption that Officer Brackeen must have “probable cause” to arrest the appellant at the time he was initially stopped. This approach by the majority completely overlooks many cases decided by this Court holding that circumstances falling short of probable cause for arrest may justify a temporary detention for the purpose of investigation, since investigation is a lesser intrusion than an arrest. Coleman v. State, 500 S.W.2d 472; Ablon v. State, 537 S.W.2d 267; George v. State, 509 S.W.2d 347; Baity v. State, 455 S.W.2d 305.

I will agree that the information possessed by Officer Brackeen at the time he stopped appellant did not amount to probable cause. However, it was shown that he was aware that a 7-11 convenience store, located near the intersection of 49th Street and Memphis Avenue in Lubbock, Texas, had been the location of an armed robbery by a young black male wearing a multi-col-ored shirt. He was aware that this location was near 50th Street, which was a six-lane thoroughfare that connects east and west Lubbock. He was also aware that a large segment of the black community in Lubbock lives in East Lubbock and the location of this robbery was in West Lubbock. As Officer Brackeen was traveling toward the location of the robbery, approximately one-half mile from that location, he observed a vehicle heading east on 50th Street occupied by a young black male. At this point Officer Brackeen made a u-turn and observed the automobile driven by the young black male speed up slightly. At this point, appellant leaned forward and to the right as he was driving his vehicle and reduced his speed. With this basis of information it is apparent that Officer Brackeen was doing the job as an investigator that he was paid to do when he stopped the vehicle for further investigation. With his knowledge that an armed robbery had occurred and the person that he stopped might well be armed with a pistol, coupled with his observation that the driver of the vehicle leaned forward as if hiding a weapon, he prudently ordered appellant from the automobile with his hands up. This is simply logical and necessary police procedure in order to protect the safety of the officer so that he may continue his investigation. With the arrival of other officers, the automobile was checked to see if it contained a weapon and a loaded pistol was found under the dash of the vehicle. It was at this point that probable cause arose for the arrest of appellant and that a search of appellant and the rest of the vehicle was justified.

It is well settled that circumstances falling short of constituting probable cause for arrest may nevertheless justify a temporary detention for the purposes of investigation. White v. State (No. 57,667, delivered June 14, 1978); Shaffer v. State, 562 S.W.2d 853 (Tex.Cr.App.1978); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967). The standard applied in determining the reasonableness of such a stop under the Fourth Amendment has been held to be the existence of specific and articulable facts along with reasonable inferences therefrom which, in light of the experience and general knowledge of the officer, reasonably warrant such an intrusion. White v. State, supra; Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1976) (opinion of Onion, P. J., on Motion for Rehearing); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972); Terry v. Ohio, supra. It has been held that in order to satisfy this standard it must be shown that the police officer had a reasonable suspicion that some activity out of the ordinary had occurred; that there was some suggestion to connect the person detained with said unusual activity; and that the alleged unusual activity was criminal in nature. White v. State, supra; Shaffer v. State, supra; Armstrong v. State, supra. Furthermore, a weapons search incident to such a stop limited in scope to the purpose of allowing the officer to pursue his investigation without fear of violence is justified where the officer has reason to believe that the subject of the detention is armed and presently dangerous. Hooper v. State, 516 S.W.2d 941 (Tex.Cr.App.1975); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974); Terry v. Ohio, supra.

In the instant case, Officer Brackeen was acting on the basis of the following specific facts, of which he had reasonably trustworthy information: (1) there had been an armed robbery in close proximity to his location (within six blocks); (2) the robbery had occurred within five minutes of his decision to stop this suspect; (3) the suspect in the robbery was described as a young black male, the subject of this stop was a young black male; (4) when he swung around to follow this car, the driver speeded up slightly and then made a furtive gesture, as if hiding something under the seat; (5) the subject was proceeding eastbound on 50th Street and could have been coming more or less directly from the scene of the crime; (6) the section of town in which the robbery occurred was predominantly white, while the robber was black; and (7) 50th Street was a major east-west thoroughfare connecting the predominantly white with the predominantly black sections of town— the most direct route between the scene of the crime and east Lubbock. In the category of reasonable inferences from the facts, in light of the officer’s (six years’) experience and general knowledge are the following: (1) that the robber would probably be traveling by auto, although no report to that effect had been received; (2) that the robbery might very well be travelling eastbound on 50th Street, based on the fact that that street is a major east-west thoroughfare and the robber was black and the robbery occurred in the predominantly white section of town, not more than a block off of 50th Street.

These facts and inferences are sufficient to warrant a reasonble man in making an investigatory detention of the driver of the brown car which Officer Brackeen spotted heading eastbound on 50th Street; the officer at that time had a reasonable basis for his suspicion that this car was being driven by the man who had perpetrated the armed robbery a few short minutes before. The same facts and inferences which warranted the stop in the first place also warranted the belief that this suspect was armed and presently dangerous.

In Wood v. State, supra, this Court upheld the search under the seat of an automobile as a limited weapons search in spite of the fact that the subjects of the stop were outside of the car at the time of the search. This Court said:

“The officer then searched under the seats of the Ford automobile, which appeared to be within four or six feet from the appellant and his companion. The record does not reflect that the same was a general exploratory search, but one limited to a search for weapons for the officer’s protection. The area which police may search for potential weapons in frisk situations is the same as that area which the police may search when making a search incident to a lawful arrest, and is the area within the lunge, grasp or reach of the suspect or suspects.”

In the instant case, the record reflects that appellant was standing just outside of his vehicle when the officer reached in under the dashboard, to a place toward which he had seen the appellant make a furtive gesture. In that place, underneath the dashboard on the driver’s side, he located a loaded pistol, which was cocked. The other items seized were also retrieved from an area toward which this officer had seen the appellant make a furtive gesture. The discovery and seizure of the pistol, the money and money bag and the hat were in the course of a search reasonably limited in scope to enable the officers to proceed with their investigation without fear of violence. Hooper v. State, supra; Wood v. State, supra; Brown v. State, supra; Terry v. Ohio, supra; Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1967).

This case is more similar on its facts to Hooper v. State, supra, although it is conceded that there the facts are stronger. That case involved a 7-11 robbery in Lubbock, Texas, as well. Also, the suspects were stopped in that ease by officers who had set up surveillance along the route which it was believed that the robbers, identified as black, would travel from the predominantly white to the predominantly black section of town. Shining a light into the car, the officers noticed that the passenger fit the general description they had received over the radio. Unlike the instant case, the car continued down the highway for approximately one mile before yielding to the officers’ flashing red lights. The defendants were stopped within 18 minutes of the robbery in Hooper. True, in Hooper, the defendant was described somewhat more particularly than in the instant case (six-foot to six-foot-two inches, black male, black leather coat or jacket, approximately 180 pounds). It is also true that a police unit had given chase to an automobile spotted in the area shortly after the robbery and had lost the car on a street connecting with the highway on which the defendants were ultimately stopped whereas in the instant case there was no direct information that the suspect was in a car at all. However, I do not feel that the distinctions between the two cases are sufficiently strong to call for different results. The description in the Hooper case is not significantly more detailed than that given in the instant case. And, although there was a chase of some nature before the ultimate stop in the Hooper case, it was never clear that the vehicle chased was the same as the vehicle stopped, nor was there any solid evidence that the vehicle chased was actually involved in the robbery — it was merely seen in the neighborhood shortly thereafter.

Since the officer properly made an investigatory stop, I dissent to the reversal of this cause.

      . It should be noted that in Brown v. State, supra, the victims gave a description “as to race and an approximation as to height and weight” of the robbers. In the instant case, the only description given was a “young colored male with a multicolored shirt.”

      . Although Officer Brackeen did not testify directly on the question of whether he feared the subject to be armed, his actions, which appear from his testimony and that of other officers who investigated the crime, demonstrate that he had such apprehension. Thus the record discloses that Brackeen stood behind the door of his police unit, gun drawn and pointed at appellant, while he ordered him out of his car and ordered him to place his hands on the roof of his car. See, e. g., Wood v. State, supra; and Hooper v. State, supra.


author: DOUGLAS, Judge.

text:
    Robert SAPATA, Appellant, v. The STATE of Texas, Appellee.
    No. 56755.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 29, 1978.
    Rehearing en banc Denied Jan. 10, 1979.
    Holly Crampton, Wichita Falls, court appointed, for appellant.
    Timothy Eyssen, Dist. Atty., Donald E. Maxfield and Dan Tompkins, Asst. Dist. Attys., Wichita Falls, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

DOUGLAS, Judge.

Robert Sapata appeals his conviction for rape of a child. The trial court, after finding that appellant had previously been convicted of a felony, assessed punishment at eighteen years.

Sapata argues that his confession was inadmissible, he was denied his right to be heard and that the court erred in assessing his punishment after it demonstrated bias against him. The sufficiency of the evidence is not challenged.

On December 6, 1976, Sapata had intercourse with a 12-year-old girl. He was arrested on December 12, 1976, and taken before a magistrate. The following morning Sapata signed a confession.

Appellant argues that his confession was inadmissible because he was never specifically warned of his right to remain silent. The record does not support this contention. The record includes a magistrate’s certificate stating that the magistrate advised appellant of his “right not to be required to make any statements.” Officer Darrell Wills, who took the confession, testified he was present when the magistrate gave this warning to the appellant. He also testified that he told Sapata that he did not have to talk to him. Finally, the confession itself contains an acknowledgment that appellant had been warned by the magistrate that he did not have to make a statement. From this record, we conclude that appellant was adequately warned and the confession was admissible.

Complaint is next made that the accused was not allowed to be “heard” as guaranteed by our State Constitution. Tex.Const. Article 1, Section 10. This complaint stems from the fact that appellant had a statement (not in the record) which he wanted to be read to the jury but his court-appointed attorney chose not to read.

Appellant acknowledges that he was not entitled to hybrid representation. Landers v. State, 550 S.W.2d 272 (Tex.Cr.App.1977). Appellant took the stand outside the presence of the jury and stated that his attorney advised him that his prior conviction could be used to impeach him if he testified. He unequivocally stated that he did not want to testify. Although the decision as to whether the accused will testify is his own personal right, all other trial decisions are to be made by counsel. Appellant did not wish to testify; he only wanted a statement read. His attorney’s actions did not deny him any constitutional right.

Appellant also argues that the trial court should not have assessed punishment because he demonstrated bias against appellant. This contention stems from the fact that the court either suggested or ordered the appellant to take a bath because the court was afraid his strong body odor would have an adverse effect on the jury. The court’s actions are not contained in the record except through a subsequent motion by the defense for the jury to assess punishment and the court’s ruling and comments. There was, apparently, no objection made to the court’s actions at the time they occurred. The trial court is necessarily vested with broad discretion to conduct a trial. Such discretion is necessary to allow him to deal with the infinite variety of unusual situations, such as a defendant with strong body odor, which can arise in the trial context. We conclude that the trial judge did not abuse his discretion and that appellant’s right to a fair trial was not infringed.

No error is shown. The judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    TOWN OF OAK POINT, Texas, v. STATE of Texas, ex rel. Clyde T. McWILLIAMS et al.
    No. 18042.
    Court of Civil Appeals of Texas, Fort Worth.
    June 22, 1978.
    Rehearing Denied Sept. 7, 1978.
    Shirley W. Peters, Denton, for appellant.
    Jerry Cobb, County Atty. of Denton County, Gray, Whitten & Loveless and Michael J. Whitten, Denton, for appellees.
   OPINION

MASSEY, Chief Justice.

The State of Texas filed this suit in Quo Warranto against the Town of Oak Point, Texas, challenging its incorporation as a municipality (town) as originally organized, also the first annexation of territory thereto, and likewise the second annexation made thereafter.

The challenge was that the petitions forming1 the basis of each of the organizational and annexation ordinances had not been signed by the majority (at pertinent times) of the qualified electors who resided in the territory of the respective petitions.

Trial was to a jury which, oddly, in that the burden on the issues seemed to have been misplaced (of which there is no complaint on appeal), answered “We do not” to the questions relative to whether the majority of the qualified electors had signed the petitions for annexation and thus voted for annexation.

Based upon the jury’s verdict judgment was rendered invalidating everything attempted to be done in connection with the organizational and annexation activities, as a municipality, of the Town of Oak Point, Texas. Therefrom Oak Point appealed.

We reverse.

At submission Oak Point has filed its brief; the State has not. Any statement made by an appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by the opposing party. Tex.R.Civ.P. 419, “Briefs: Statements Not Challenged Accepted”. The statements in the original brief are found sufficient to our needs in passing upon the appeal, and, not having been challenged, are accepted as representative of the facts and the procedure in the trial court.

In due time Oak Point filed its motion for instructed verdict, which was by the court overruled. The same occurred as applied to the motion for new trial filed by Oak Point.

By unchallenged statements in the brief of Oak Point the following is made to appear:

a. of the 17 qualified electors at time of the organization of the municipality 11 voted in favor of the annexation (organization).
b. of the 14 qualified electors at the time of the first annexation of territory to the municipality after it had been organized 8 voted in favor of the annexation.
c. of the 19 qualified electors at the time of the subsequent annexation of territory to the municipality0 after such initial annexation of additional territory 10 voted in favor of the annexation.

Therefore there was error in the jury findings and in the judgment based thereon upon the theory that fewer than a majority of the qualified electors had acted in connection with the organization of Oak Point as a municipality and in the subsequent annexation of territory. Further, there was error by the trial court in the refusal and failure to grant the motion for instructed verdict filed by Oak Point.

Judgment is reversed. Judgment is here rendered that the State of Texas, on relation of Clyde T. McWilliams, Lucille Anderson, Tommy Williams, Gene C. Smith, and Shirley Smith, take nothing by suit in the nature of Quo Warranto, as filed against Town of Oak Point, Texas.


author: KEITH, Justice.

text:
    ENTERPRISE COMPANY, Appellant, v. CITY OF BEAUMONT et al., Appellees.
    No. 8231.
    Court of Civil Appeals of Texas, Beaumont.
    Sept. 22, 1978.
    Rehearing Denied Oct. 12, 1978.

      Chilton O’Brien, Beaumont, for appellant.
    Thad Heartfield, Ken Wall, Beaumont, for appellees.
   KEITH, Justice.

This is a temporary injunction case. After a hearing in the court below, the trial judge denied relief. The judgment of the trial court is reversed and the case is remanded with instructions, and temporary injunction, as prayed, is granted by this Court pending issuance of this Court’s mandate and the grant of relief by the trial court in accordance with instructions.

The appeal is by the plaintiff below, Enterprise Company, publisher of two daily newspapers having a wide and influential circulation in the City of Beaumont, a Home Rule City which employs a number of individuals who, collectively, compose an organized fire department. The International Association of Firefighters, Local # 399, is a voluntary association of firefighters employed by the City and exists for the purpose of dealing with City concerning grievances, labor disputes, wages, etc., as authorized by Section 3(4) of Tex.Rev.Civ. Stat.Ann. art 5154c-1 (Supp. 1978), hereinafter referred to as the “Employee Relations Act” or “Act”.

The facts are undisputed, defendants introducing no evidence. It was shown that one of plaintiff’s reporters, Geoffrey G. Clark, was assigned to attend the meeting held on August 10,1978, between representatives of City and Local # 399 wherein contract negotiations pursuant to the Employee Relations Act were in progress. Clark attended the first of such meetings held in the Beaumont Public Library and there were one or more federal mediators present at such time. At the second meeting, one of the mediators, without objection and with the acquiescence of the representatives of the negotiating parties, “cordially” ejected Clark from the meeting.

The president of the local union and the City’s negotiator confirmed, in essential detail, the facts related by Clark.

At the conclusion of the hearing, the trial court denied the relief sought by plaintiff and this appeal has been perfected. Pursuant to Tex.R.Civ.P. 385(d) (Supp.1978), we advanced submission and heard the oral arguments on September 21, 1978, eight days after the record was filed. We reverse and remand for the reasons now to be stated.

The defendants were in labor collective bargaining negotiations pursuant to the provisions of the Employee Relations Act. One of the sections of the Act which authorized any collective bargaining on the part of the defendant City is Section 7(e) which reads:

“All deliberations pertaining to collective bargaining between an association and a public employer or any deliberation by a quorum of members of an association authorized to bargain collectively or by a member of a public employer authorized to bargain collectively shall be open to the public and in compliance with the Acts of the State of Texas.”

Plaintiff contended that since the public at large had a right to attend the negotiating sessions pursuant to the quoted section of the statute, it, too, had a right to be present. It argues that it has an obligation to the public to report truthfully all items of general interest which its reporters learn have happened in the community; that it has a justiciable interest in protecting the right to inform the public of newsworthy items, pointing to the fact that wages of firefighters come from tax payments of citizens.

Both defendants challenged the right of plaintiff to prosecute and maintain this suit and the contentions have been renewed upon this appeal. Defendant City now contends that plaintiff has no right to the injunction since it failed to show some special injury “sustained by him which is not sustained by the public generally.” The Union, citing Corpus Christi Classroom Teachers Association v. Corpus Christi Independent School District, 535 S.W.2d 429, 431-432 (Tex.Civ.App. — Corpus Christi 1976, no writ), apparently urges the same contention. We reject the suggestion that plaintiff did not show its right to have a reporter present at the public meeting.

We are of the opinion that plaintiff has standing to maintain this suit under the rationale of Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177, 185-186, 82 A.L.R.3d 1, 14 (Tex.Civ.App.— Houston [14th Dist.] 1975), writ ref’d n. r. e., 536 S.W.2d 559 (Tex.1976). The public had a right to see and observe the negotiations [Art. 5154c-l, § 7(e)], and the rights of plaintiff were at least concurrent with and equal to those vested in the public generally. Houston Chronicle Case, supra (531 S.W.2d at 186).

Our holding finds support in an opinion by Attorney General Hill. See Opinion No. H-816 (April 30, 1976), wherein this language is to be found in the concluding sentence:

“Since we have discovered no exception to the clear language of the statute, it is our opinion that the actual bargaining sessions between a city and a police officers association are open to the public by virtue of section 7(e) of article 5154c-l.”

Being convinced of its correctness, we adopt the rationale of Opinion No. H-816.

Although the parties have discussed the applicability of the Open Meetings Act, Tex.Rev.Civ.Stat.Ann. art. 6252-17 (Supp. 1978), we do not find it necessary to determine its applicability to the case at bar. It is sufficient to state that our decision finds ample support in the Employee Relations Act.

Defendants now contend that the injunction was properly denied because of the provisions of Section 9(c) of the Employee Relations Act, the applicable provisions of which are set out in the margin. Plaintiff called the president of the local union and asked:

“Q What was the nature of the sessions [held in the forenoon in the Library]?
* * * * * *
“A Bargaining contract between [Local Union No.] 399 and the City of Beaumont.
“Q What was the purpose of the meeting you had at the Red Carpet Inn [during the afternoon]?
“A Along the same lines.”

The negotiator for the City, Norman Aboosh, testified in substance, “We [the negotiating parties] felt that this was the mediator’s meeting, and he was running it.

.. He closed the meeting. And [threw] the reporter out.”

The defendants argue that since the mediator was present, and was forbidden to make any “public recommendation on any negotiation issue in connection with the performance of his service” and also was forbidden to “make a public statement or report which evaluates the relative merits of the position of the parties”, this authorized his action in closing the meeting to the public and the news media.

We disagree. It is not necessary for us to determine whether Section 9(c) overrides or is an exception to Section 7(e); it is our duty to harmonize the two provisions so that the entire Act may be applied to the fact situation now under review. Martin v. Sheppard, 129 Tex. 110, 102 S.W.2d 1036, 1039 (1937); Lane v. Ross, 151 Tex. 268, 249 S.W.2d 591, 594 (1952); Marfa Independent School Dist. v. Davis, 102 S.W.2d 283, 285 (Tex.Civ.App.—El Paso 1937, writ ref’d). This we do and thereby render effective both provisions of the statute.

Section 7(e) of the Act is in accord with the public policy of the so-called “sunshine laws”, as stated in Tex.Rev.Civ.Stat.Ann. art. 6252-17.a, § 1 (Supp.1978). The public (and under our interpretation, the plaintiff) was entitled to be present and to observe the joint deliberations “pertaining to collective bargaining.” Under Section 9(c), the mediator “may hold separate or joint conferences” between the parties in an effort to reach an amicable settlement of the issues in dispute.

We reconcile the two sections of the Act by holding that the public is entitled to be present and observe the joint conferences held under Section 9(c) but has no right to see or observe the proceedings in the separate conferences with the mediator. We must assume that the mediator will comply with the law as set out in Section 9(c) and will make no public recommendations or announcements at the joint sessions at which the public is privileged to be present.

Therefore, we hold that the public (which includes the plaintiff) has a right to attend any and all deliberations pertaining to collective bargaining when the conditions set out in Section 7(e) exist; and, we hold that the public (including the plaintiff) has a right to attend any joint meetings which are held by the parties under the authorization of Section 9(c). But, we also hold that the public (which includes plaintiff) has no right to attend the separate meetings authorized under Section 9(c).

Defendants argue, with persuasiveness to anyone who has engaged in collective bargaining negotiations, that the presence of newspaper reporters and television cameras in such meetings would not be conducive to a successful conclusion of the negotiations. Even if we assume the accuracy of the opinion so expressed, we do not reach the result sought by the defendants — the exclusion of the public and the reporters. We are confronted with an unambiguous statute whose import is plain.

In making this argument, defendants misconceive the duty of the courts in construing and applying legislative enactments. As said in Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920): “Courts must take statutes as they find them. More than that, they should be willing to take them as they find them.” See Rudman v. Railroad Commission of Texas, 162 Tex. 579, 349 S.W.2d 717, 721 (1961). Our Supreme Court spelled out a limitation upon the authority of courts, saying, “The wisdom or expediency of the law is the Legislature’s prerogative, not ours.” Smith v. Davis, 426 S.W.2d 827, 831 (Tex.1968).

The legislature has determined that the public’s right to know what is going on in the negotiation sessions between its representatives and those representing its firefighters is entitled to statutory protection. It may very well be that such statutorily protected right may inhibit or prevent successful negotiations. But, the balancing of the rights of the public and those of the negotiators must be left to the legislature. Industrial Foundation, etc. v. Texas Industrial Accident Board, 540 S.W.2d 668, 676 (Tex.1976).

At least one authority supports defendants’ contentions that the “sunshine law” provisions of Section 7(e) of the Employee Relations Act are inimical to the success of labor negotiations authorized by the Act. See C. Morris, “Public Employee Bargaining in Texas”, 13 Houston L.Rev. 291, 297 (1976):

“There is a widespread belief that public negotiating sessions with the attendant press coverage inhibit the free exchange of views and tend to freeze the parties’ positions.”

Believing his major premise, Professor Morris suggested that “[t]he next legislature would be well-advised to eliminate § 7(e).” Id. A sufficient rejoinder is that the legislature met and adjourned without such a repeal and the sun still shines upon negotiations conducted under the Employee Relations Act.

If the statutory rule governing public access to such meetings is unwise, unworkable, or impractical, the solution is a legislative change. Actual or supposed deficiencies in statutory enactments will not justify a court’s excursion beyond its proper sphere to plug a hole or cure a supposed defect in the legislative scheme of things. State v. Reyna, 160 Tex. 404, 333 S.W.2d 832, 838 (1960). If a change in the law still is needed, the legislature meets within a few months and it is empowered to grant such relief.

From our review of the law and the facts as well as the memoranda and argument of counsel, we are of the opinion that the trial court was in error in his application of the law to the undisputed facts and that we must reverse the judgment denying the temporary injunction. In so doing, we are cognizant of the generally accepted rule that the granting or refusing of a temporary injunction is within the sound discretion of the trial court and that the court’s action will not be disturbed on appeal unless it clearly appears from the record that there has been an abuse of discretion. See generally Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962), and its progeny, one of which is Marshall v. Good Times, Inc., 537 S.W.2d 536, 538 (Tex.Civ.App. — Fort Worth 1976, writ dism’d).

A necessary corollary to the rule just mentioned is epitomized by this short quotation from Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722, 723 (1935), that “the trial court abuses its discretion when it fails or refuses to apply the law to conceded or undisputed facts.” See also Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961); 6 L. Lowe Texas Practice, Remedies § 153, at 190 (2d Ed. 1973), and cases therein cited. In State v. Southwestern Bell Telephone Co., 526 S.W.2d 526, 528 (Tex.1975), the Court cited and followed both Egan and Camp.

Under our uncontradicted record, the plaintiff has shown an abuse of discretion on the part of the trial court in the denial of the temporary injunction. Plaintiff had a statutory right to have its reporter present at the negotiating session and the trial court failed to apply the applicable law to such undisputed facts. Southland Life Ins. Co. v. Egan, supra.

Having reviewed all contentions of the respective parties — although we may not have commented upon each contention separately — we are of the opinion, and so hold, that the trial court abused its discretion when it denied the temporary restraining order sought by the plaintiff. Therefore, for the reasons indicated herein, the judgment denying the temporary injunction is reversed and the cause is remanded with instructions that the trial court grant the relief sought by plaintiff.

Disposition of this appeal will follow the pattern set by Guerra v. McClellan, 243 S.W.2d 715, 720 (Tex.Civ.App. — San Antonio 1951, Mand.overr.). As the previous discussion indicates, the plaintiff, under settled law and undisputed facts, was entitled to a temporary injunction as a matter of right at the time the case was heard in the District Court. The judgment of the trial court is reversed and the case remanded to it with instructions that the temporary injunction prayed for be granted. In accordance with the procedure outlined in Guerra v. McClellan, supra, and Tex.R.Civ.P. 434, a temporary restraining order, as prayed, is granted by this Court. The relief granted shall be effective until the mandate of this Court is received by the court below and the relief there granted in accordance with the instruction herein. The relief granted herein is a writ temporarily enjoining the defendants (appellees herein), individually and collectively, and all persons acting in concert or participation with them, from preventing or attempting to prevent, evicting or attempting to evict, Geoffrey Clark or any other reporter or representative of plaintiff (appellant herein) or other news media, or members of the public, from attending any meeting of the defendants wherein deliberations are to be conducted pertaining to collective bargining between them as defined in Section 7(e) of the Act, or any joint meetings held by the parties under the authorization of Section 9(c). The writ shall not authorize plaintiff to attend any separate meetings held under the authorization of Section 9(c).

The writ here granted will issue upon plaintiff’s filing a bond with the Clerk of this Court in the sum of $5,000 that complies with the provisions of the law and the rules of civil procedure.

The judgment is reversed, the cause is remanded with instructions, and a temporary injunction is granted.

      . This paragraph is a quotation from Barron v. Phillips, 544 S.W.2d 752, 753 (Tex.Civ.App.— Texarkana 1976, no writ), an opinion by then Chief Justice Chadick, now upon the Supreme Court of Texas. We will follow the rationale of this case and Guerra v. McClellan, 243 S.W.2d 715, 720 (Tex.Civ.App. — San Antonio 1951, mandamus overruled), an opinion authored by Justice Norvell, who later graced our Supreme Court for many years.

      . There were two encounters, the first before noon in the Library Building. Clark said that the federal mediator told him to leave and “He came up to me again, and put his hand, his right hand, on my left shoulder. He exerted a little more pressure, and I exerted a little more resistance to pressure, leaning against it, and after a few minutes of that he abandoned body contact with me and again left the room.”
      After the lunch break when the meetings resumed at a motel, Clark was present and met with the two federal mediators, learning that another meeting was to be held. Clark continued: “. .1 told them I didn’t want to be bodily ejected but that I did want to, á third time, attempt to attend the meeting, and be requested to leave. . . . [Wjhen the meeting was about to begin, [I] walked into the room and in essence asked them if they were ready to throw me out and they said yes, and we did it all very cordially. They threw me out and then I left.” Clark continued:
      “Q. You weren’t pushed or shoved?
      “A. No, sir, it was cordial.
      “Q. But you unmistakably were evicted from the meeting?
      “A. Yes, sir.”

      . One court has said of the Florida “Government in the Sunshine Law”, regulating open meetings: “This act is a declaration of public policy, the frustration of which constitutes irreparable injury to the public interest.” Times Publishing Co. v. Williams, 222 So.2d 470, 473 (Fla.App.1969).

      . By special exception, City challenged petitioner’s “justiciable interest in the subject matter of this controversy [because it did not allege] that plaintiff has an interest in the subject matter of this controversy which is separate and distinct from the interest of the public generally.”
      Local # 399 had a similarly worded exception. There is no record showing that either exception was considered by the Court.

      . These are the authorities cited in support of the contention noted above: City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722, 727 (Tex.1971); Holland v. Taylor, 153 Tex. 433, 270 S.W.2d 219, 221 (1954); Yett v. Cook, 115 Tex. 205, 281 S.W.2d 837, 841 (1926); San Antonio Conservation Society v. City of San Antonio, 250 S.W.2d 259, 263 (Tex.Civ.App. — Austin 1952, writ ref’d); 6 L. Lowe, TEXAS PRACTICE, Remedies § 131, at 170 (2d Ed. 1973); 1 R. McDonald, Texas Civil Practice § 3.03.3, at 229 (Rev.Ed.1965). We recognize the validity of the rules enunciated under the fact structures then under review. However, for the reasons set out herein, we find none to be apposite.

      .Our attention has been called to the recent opinion in City of Abilene v. Shackelford, 572 S.W.2d 742 (Tex.Civ.App. — Eastland 1978), involving the Open Meetings Act and the Open Records Act, neither of which is involved in our case. There, Chief Justice McCloud held that a television station failed to establish a justicia-ble interest so as to enable it to complain of a closed meeting of the Equal Opportunity Board.
      With all due respect to the Court and deference to the author of Shackelford, we decline to follow it in a case involving the Employee Relations Act, believing that such a holding does not conform to the letter or spirit of the latter Act.

      . We do not regard the reserved question noted in the per curiam opinion of the Supreme Court in the Houston Chronicle Case (536 S.W.2d at 561) as applicable to the case under review. The right of the newspaper to the information, equated to the right of the public generally, was upheld; the extent of the right of both was the reserved question — a matter not in this case. Cf. Ex parte Pruitt, 551 S.W.2d 706, 709 (Tex.1977).

      . No party to this proceeding has challenged the constitutionality of this section of the Employee Relations Act. Cf. International Ass'n of Firefighters, etc. v. City of Kingsville, 568 S.W.2d 391 (Tex.Civ.App. — Corpus Christi 1978, writ refused, n. r. e.).

      . One court, holding that a television station had standing to maintain a suit under its Open Meetings Law, based its ruling in part upon “the right of the people to be informed in a practical way by the news media.” Channel 10, Inc. v. Independent School Dist. No. 709, 298 Minn. 306, 215 N.W.2d 814, 821 (1974).

      .“If a mediator is appointed, his function shall be to assist all parties to reach a voluntary agreement. He may hold separate or joint conferences as he deems expedient to effect a voluntary, amicable, and expeditious adjustment and settlement of the differences and issues between the parties. He shall make no public recommendation on any negotiation issue in connection with the performance of his service nor shall he make a public statement or report which evaluates the relative merits of the position of the parties. The mediator may, however, recommend or suggest to the parties any proposal or procedure which in his judgment might lead to settlement.”

      . The language contained in this paragraph is a paraphrase of that used by Justice Chadick in Barron v. Phillips, supra (544 S.W.2d at 755).