author:
TOM G. DAVIS, Judge.
      DOUGLAS, Judge,

text:
    Ralph Waldo HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 55069.
    Court of Criminal Appeals of Texas. En Banc.
    Feb. 15, 1978.
    Rehearing Denied March 22, 1978.
    Steven G. Condos, Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb, Norman Kinne and Rider Scott, Asst. Dist. Attys., Dallas, for the State.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for the offense of aggravated robbery. The jury assessed punishment at thirty-five years.

Appellant, by way of pro se brief, urges that the evidence is insufficient to show that the weapon used was a deadly weapon.

Appellant was indicted for the offense of aggravated robbery under V.T.C.A. Penal Code, Sec. 29.03(a)(2), with the indictment reading, in pertinent part, that on or about June 5, 1976, the appellant

“ . . . did unlawfully, then and there while in the course of committing theft and with intent to obtain and maintain control of the property, of ROBERT J. HARPER, hereinafter called ‘Complainant’ the said property being current money of the United States of America, without the effective consent of the Complainant and with intent to deprive the said complainant of said property, did then and there by using and exhibiting a deadly weapon, to-wit: a knife, intentionally and knowingly threaten and place the said complainant in fear of imminent bodily injury.”

On September 7, 1976, appellant entered a plea of not guilty before a jury, and represented himself pro se during the trial of this case, with the assistance of court-appointed counsel. The State’s evidence reflected that the complaining witness, Robert J. Harper, had been to a Dallas nightclub on the evening of June 4,1976, leaving that establishment at approximately 1:00 a.m. on the morning of June 5th to walk to his home a few blocks away. While walking down the street, he was accosted by appellant, who stated, “I have a knife and I want your money, your billfold.” A struggle ensued during which the complaining witness received cuts on his right elbow, his chin, and under his throat. The appellant managed to secure Harper’s billfold during the struggle and, as appellant attempted to flee the scene, he was arrested by a nearby police officer. At the time of appellant’s arrest, he was searched and a pocket knife with a four-inch blade was found on his person.

The complaining witness further testified that, while he never saw appellant with a knife, he believed that appellant did have a knife, and that the injuries incurred had left scars on his body. No medical testimony was presented concerning the severity of the injuries. The complaining witness stated that he did not go to a hospital or receive any medical attention or stitches on these cuts.

Officer E. W. Smith, an eyewitness to the incident in question, testified, “ . . .1 felt like one of them had some type of weapon, but it was dark and I couldn’t tell for sure.” Smith related that he felt that appellant was the one with the weapon because of “The way he made a movement towards the victim. * * * It was kind of a slashing move.” The record reflects that the prosecutor then asked, “ . Indicating that he might have had a knife or something to slash with?” and Smith answered, “Yes, sir.”

Officer James D. Mercer testified that he arrived at the scene after appellant had been taken into custody. His testimony relative to Harper’s injuries reflects the following:

“Q. [Prosecutor] Did you have occasion to observe any wounds on Mr. Harper?
“A. Yes, sir, he had several.
“Q. Okay. Do you recall any in particular?
“A. I saw them all.
“Q. Where were they, as best you recall?
“A. There was a slash wound on the right side of his neck about two or three inches long; there was a small nick here; he had a cut on his elbow; and he raised his shirt to tell us about a cut on his stomach. * * * * ⅜ ⅝
“Q. Did they appear to be serious to the extent that he would require any hospitalization or stitches or anything like that?
“A. No, sir, they weren’t that serious.”

Mercer stated that he had over sixteen years of experience as a police officer, had seen “many injured in every type of way,” and that “at least three of these wounds appeared to be cut wounds. . . . ”

Appellant urges that under our recent decision in Danzig v. State, Tex.Cr.App., 546 S.W.2d 299, the evidence is insufficient to sustain a conviction for aggravated robbery since the knife was not a deadly weapon per se and there was no testimony that the injuries inflicted upon the complaining witness could have caused “death or serious bodily injury.”

V.T.C.A. Penal Code, Sec. 1.07(a)(11), defines “Deadly Weapon”:

“(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
“(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.”

The dissent, in urging that the evidence is sufficient to sustain the conviction and that Danzig should be overruled, states that while this Court has often held that a pocket knife is not a deadly weapon per se, it has held with equal frequency that it may qualify as a deadly weapon through the mode and manner of its use and that the wounds inflicted on the injured party may be looked to in determining this issue. We agree with this statement of the law and examine cases cited by the dissent for the proposition that the evidence herein is sufficient to prove deadly weapon.

In McElroy v. State, Tex.Cr.App., 528 S.W.2d 831, our opinion sets forth the following relative to the wound and weapon:

“Dr. Terrell, who treated the injury, testified the weapon used by appellant was capable of causing death and could be a deadly weapon through the manner of its use. He further testified that the stab wound was six inches long, penetrated to the cartilage of the rib cage, and required approximately thirty sutures to close it.”

In Abels v. State, Tex.Cr.App., 489 S.W.2d 910, our opinion includes the following:

“Appellant then cut his wife across the throat with what he described as a ‘pocket knife’ and chased her across the room, stabbing her a total of 15 times. Her injuries consisted of a ruptured kidney and an injured spleen which were surgically removed, and a punctured lung, stomach and intestines. Dr. Ferris, who treated the injured party, testified that the wounds were serious and the injured party would have died if she had not received prompt medical attention.”

The distinction between these two cases and the instant case is readily apparent.

In Ellison v. State, Tex.Cr.App., 419 S.W.2d 849, a robbery with a deadly weapon conviction was affirmed where the defendant held a knife to the back of the victim and threatened to kill her. No contention was advanced as to the sufficiency of the evidence and the opinion does not purport to evaluate the sufficiency of the evidence. The weapon used in Ellison is merely described as “a knife” without regard to the type of knife or length of blade. In the instant case, after Harper had testified that appellant said, “I have a knife, I want your billfold,” the record reflects the following:

“Q. [Prosecutor] Did he say that he would do anything to you if you didn’t give him your billfold?
“A. No, sir.”

Gillingham v. State, 167 Tex.Cr.R. 116, 318 S.W.2d 659, is probably the most persuasive case cited by the dissent. On appeal from an aggravated assault conviction, the defendant urged that the evidence was insufficient to show that the knife was a deadly weapon. This argument was rejected as follows:

“Used to slash in the vicinity of the face and neck, there appears no question but that a switchblade knife with blade 3¼ inches in length and ½ inch in width would come within the definition of a deadly weapon.”

The opinion in Gillingham noted that the wound produced required six stitches to close. In Gillingham, the cases of Fisher v. State, 68 Tex.Cr.R. 297, 151 S.W. 544, and Brown v. State, 155 Tex.Cr.R. 233, 233 S.W.2d 578, were cited for the proposition that whether a weapon is a deadly weapon (if not a deadly weapon per se) may be shown by the manner of its use.

In Fisher, the wounds were inflicted with a “No. 8 saw” and were described as “a cut on his head something like five inches long, a scalp wound, the bones not being in any way injured or hurt; also had a wound on his left hand and a slight one on his right arm. The doctor says the wound on the right arm amounted to nothing. The other wounds were not serious. The physician, Dr. Mathes, who attended Killough, [the victim] stated that he was up in a couple of days and about his business.”

In Fisher, reversal resulted, the opinion reciting, “The wounds were not serious, and there is no evidence from any witness that the saw was a deadly weapon; and it is not a deadly weapon per se.”

In Brown, upon appeal from a murder without malice conviction, it was held that a shotgun fired through a door was not a deadly weapon per se. The use of the gun neither produced death or serious bodily injury, and the manner of its use was such that “more shots failed to penetrate the door than passed through the door.” The injured party was not hospitalized by the shots which struck her and, while she stated she went to a doctor, the extent of injuries was not shown.

In Reed v. State, 149 Tex.Cr.R. 208, 192 S.W.2d 890 (not cited by the dissent), reversal resulted on appeal from a conviction for assault to murder. The major portion of the opinion sets forth the brief of the State’s attorney in which error is confessed. In pertinent part, it states:

“Obviously, we think, the knife was not per se a deadly weapon, and yet we recognized the general rule that where the instrument itself is not a deadly weapon, the intent to kill may be established by other facts — that the wounds inflicted may be looked to in determining whether or not the knife was a deadly weapon; but, in view of the fact that the testimony of the attending physician indicates that the wounds inflicted were not of a serious nature unless infection set in, and in view of the further fact that there is no proof of a specific intent to kill, we are inclined to seriously doubt that the evidence is sufficient to support a conviction . .

In Davis v. State, Tex.Cr.App., 532 S.W.2d 626, and Washington v. State, Tex.Cr.App., 518 S.W.2d 240, this Court affirmed convictions for aggravated robbery where a knife was displayed but not used during a robbery. No contention was advanced as to the sufficiency of the evidence in either case and therefore it was obviously unnecessary for the opinions to address or fully set forth the evidence necessary to sustain the convictions.

In the instant case, the weapon used was not a deadly weapon per se. Serious bodily injury was not shown. We must therefore look to the “manner of its use or intended use” in determining whether the pocket knife herein was a deadly weapon.

The injured party never saw a knife, merely relating that appellant told him, “I have a knife, I want your billfold,” and stated that appellant made no threat to use the knife if he did not give him the billfold.

Officer Smith witnessed the incident in question and did not see a knife. He testified, “I felt like one of them had some type of weapon . . . ” and described appellant’s action, “The way he made a movement toward the victim. * * * It was kind of a slashing move.”

We find that the evidence regarding the “manner of its use or intended use” is insufficient to show that the pocket knife was capable of causing death or serious bodily injury. Thus, the evidence is insufficient to show that appellant used or exhibited a “deadly weapon” as charged in the indictment.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

Appellant was convicted for the offense of aggravated robbery as denounced by V.T.C.A., Penal Code, Section 29.03.

The majority is in error in reversing this conviction. The knife used had a four-inch blade. To say that a four-inch bladed knife, whether it is a pocket knife or some other type, is not a deadly weapon unless an expert so testifies is to strain the bounds of reason. V.T.C.A., Penal Code, Section 1.07(a)(11)(B), includes in the category of deadly weapons anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

The present penal code, V.T.C.A., Section 46.01(7), provides:

“ ‘Knife’ means any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument.”

With this and the provision of Section 1.07(a)(11)(B), supra, the Legislature does not require that the manner of the use of a knife with a four-inch blade must be considered to determine if it is deadly.

If a knife with a four-inch blade is not capable of producing serious bodily injury or death, why are there so many bodies in our cemeteries as a result of injuries received from such a weapon?

In Gay v. State, 134 Tex.Cr.R. 356, 115 S.W.2d 929 (1938), Judge Krueger wrote for the Court:

“It occurs to us that a knife or other instrument which is capable of inflicting a wound four inches deep is an instrument reasonably calculated to produce death.”

While this Court has often held that a pocket knife is not a deadly weapon per se, Windham v. State, 530 S.W.2d 111 (Tex.Cr.App.1975), it has held with equal frequency that it may qualify as a deadly weapon through the mode and manner of its use and that the wounds inflicted on the injured party may be looked to in determining this issue. McElroy v. State, 528 S.W.2d 831 (Tex.Cr.App.1975); Abels v. State, 489 S.W.2d 910 (Tex.Cr.App.1973).

At a time when the sufficiency of the evidence was always considered by this Court whether it was raised or not, this Court in Ellison v. State, 419 S.W.2d 849 (Tex.Cr.App.1967), held the evidence was sufficient to uphold a conviction for robbery with a deadly weapon when a knife was exhibited during the robbery. Article 1408 of the 1925 Code, like the present code, provided for additional punishment if robbery was committed by using or exhibiting a deadly weapon.

In the present case, the manner in which appellant used a four-inch knife to inflict injury on the complaining witness qualified that knife as a deadly weapon. The testimony of Officer E. W. Smith reflected that he saw appellant slashing at the complainant, Robert L. Harper, at the time of the offense. The officer observed that, in addition to the wounds inflicted to his stomach and elbow, Harper suffered a slash wound to the throat approximately three inches in length. Harper himself testified to having received knife wounds to the stomach, elbow, chin and throat and displayed to the jury the scars remaining from these cuts. In Gillingham v. State, 318 S.W.2d 659 (Tex.Cr.App.1958), as in the present case, the complainant escaped death and serious bodily injury in the course of robbery with a deadly weapon. Nevertheless, we held that a three and one-quarter inch blade knife, used to slash in the vicinity of the face and neck, unquestionably came within the definition of a deadly weapon. Where sufficient evidence exists to support a jury’s verdict, this Court should not substitute its findings for those of the jury. Ferrell v. State, 464 S.W.2d 851 (Tex.Cr.App.1971). In this case, ample evidence came before the jury to show that the complainant suffered slash wounds to the face and neck. It is common knowledge that a four-inch knife blade used to slash at the throat is deadly, whether or not the weapon is utilized to its full lethal potential. In Douglas v. State, 89 Tex.Cr.R. 39, 229 S.W. 326 (1921), the defendant cut the injured party in front of the neck and also in the hip three times. The Court held there was sufficient evidence to support a conviction for assault with intent to murder. In Hunter v. State, 161 Tex.Cr.R. 225, 275 S.W.2d 803 (1954), this Court again held that the wounds may be looked to to justify the inference that a deadly weapon was used.

How deep would the majority require that the victim’s wounds go before finding that a knife is a deadly weapon? The statute defines a deadly weapon as anything by its use or intended use that is capable of causing death or serious bodily injury. It does not require that death must occur by the use of a weapon before it can be classified as deadly. In Davis v. State, 532 S.W.2d 626 (Tex.Cr.App.1976), and in Washington v. State, 518 S.W.2d 240 (Tex.Cr.App.1975), the convictions were for aggravated robbery under the present code. Knives were displayed by the defendants in the commission of the robberies. In each case the complaining witness suffered no injuries. This Court affirmed each conviction without requiring experts to testify as to the status of knives as deadly weapons. In light of the foregoing cases, it appears that when a knife is merely displayed in the course of a robbery, but not used to actually inflict injury, no expert testimony is required to establish it as a deadly weapon. The appellant used the knife to make the victim believe that it was a weapon capable of causing death or serious bodily injury to accomplish the robbery. This is what the Legislature intended — to punish for the use of such a weapon to accomplish robbery whether or not injuries were inflicted. Yet, by today’s decision the majority holds that when a knife is actually used to slash the throat but the victim is fortunate enough to escape death or serious bodily injury deadliness may not be inferred by the use of the weapon and from the complainant’s wounds but must be proven by the use of medical testimony.

In Duhon v. State, 136 Tex.Cr.R. 404, 125 S.W.2d 550 (1939), this Court held that where an automobile is used in a manner likely or calculated to produce death the instrument as well as the wounds inflicted may be looked to in determining the defendant’s intent. The Court did not require proof from an expert that the automobile could cause death. This Court should not overlook prior decisions and adopt such an unreasonable rule.

Under the opinion by the majority, it would follow that an irate two hundred-pound athlete while intending to kill could swing a heavy sword at another’s neck while stating, “I am going to kill you, you s.o.b.,” and this would be insufficient to constitute an assault with a deadly weapon if somehow the intended victim were not killed. This would ignore the definition in the present code that a weapon is deadly if by its intended use it is capable of inflicting death or serious bodily injury. That definition was ignored by the majority in the present case.

In Boazman v. State, 501 S.W.2d 894 (Tex.Cr.App.1973), the Court wrote:

“ . . . Even though a pocket knife is not a deadly weapon per se, the mode and manner in which it is used along with the wounds inflicted on the injured party, are some of the factors used in determining whether the accused had specific intent to kill. See Williams v. State, 477 S.W.2d 24 (Tex.Cr.App.1972).”

In that case, Boazman urged that the Court adopt the reasoning in Blount v. State, 376 S.W.2d 844 (Tex.Cr.App.1964), concerning the seriousness of the wounds inflicted in establishing an attempt to kill. This Court stated:

“ . . . Upon re-examination of that case, we conclude that the better rule is that expressed in the dissenting opinion, wherein Presiding Judge Wood-ley stated:
‘If it was possible that death might have been inflicted by the weapon, and the defendant intended to take life, though the weapon was not a deadly weapon, still he might be guilty of an assault with intent to murder. . . ” (Emphasis supplied)

The Court in Boazman held that there was sufficient evidence to determine that appellant had specific intent to kill and that the evidence was sufficient even though there was no expert testimony that the knife used was a deadly weapon. The Boazman case has not been overruled. It should be followed. It is in line with the present statutes. Everyone knows that a four-inch bladed knife used to cut the throat of another is capable of producing death or serious bodily injury. It is a fact so well known that any court should take judicial notice of it. See Gay v. State, supra, and the statement by Judge Krueger. This writer knows of no rule that would require judges to wear blinders and disregard facts of such common knowledge. This is especially true in the face of the statute defining knives as instruments that are capable of inflicting serious bodily injury or death by cutting or stabbing.

To the extent that Danzig v. State, 546 S.W.2d 299 (Tex.Cr.App.1977), or any other case, is contrary, it should be overruled.

The question is simple. If a knife with a four-inch blade is capable of producing serious bodily injury or death, the majority is wrong according to the statute enacted by the Legislature.

The judgment should be affirmed.

VOLLERS and W. C. DAVIS, JJ., join in this dissent.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Ex parte Norman Norris JONES.
    No. 56559.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 15, 1978.
    Rehearing Denied March 22, 1978.
    Ken G. Anderson, Huntsville, for appellant.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is a post-conviction habeas corpus application pursuant to Art. 11.07, V.A.C.C.P.

Petitioner was convicted of possession of heroin by a Dallas County jury in September 1971. On appeal his conviction was affirmed by a divided court. Jones v. State, Tex.Cr.App., 496 S.W.2d 566. The issue over which the Court split concerned the application of this portion of Article 40.09(4), V.A.C.C.P.:

“At the request of either party the court reporter shall take shorthand notes of all trial proceedings, including voir dire examination . . . .”

At petitioner’s trial his attorney requested compliance with this provision and the trial court denied his request. On appeal the majority held petitioner had shown no “harm or prejudice by virtue of the court’s refusal to order the recording of the voir dire examination,” and overruled the ground of error on authority of Miller v. State, Tex.Cr.App., 472 S.W.2d 269. On rehearing the Court adhered to its original disposition of the issue and discussed all prior cases on the statutory provision under examination, including Morris v. State, Tex.Cr.App., 411 S.W.2d 730; Williams v. State, Tex.Cr.App., 418 S.W.2d 837; Evans v. State, Tex.Cr.App., 430 S.W.2d 502; McClain v. State, Tex.Cr.App., 432 S.W.2d 73, all of which were decided in 1967 or 1968, long before petitioner’s 1971 trial.

In Cartwright v. State, Tex.Cr.App., 527 S.W.2d 535, the requirement of Jones v. State, supra, that harm or prejudice must be shown, was overruled:

“It is true that when the request for a court reporter has been made under Article 40.09, supra, to take the voir dire examination as opposed to the trial on the merits this court has concluded the failure to honor such requests was error, but was harmless error unless harm was alleged or shown to have resulted from the refusal to furnish a court reporter. Morris v. State, 441 S.W.2d 730 (Tex.Cr.App.1967); McClain v. State, 432 S.W.2d 73 (Tex.Cr.App.1968); Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971); Young v. State, 488 S.W.2d 92 (Tex.Cr.App.1972); Williams v. State, 418 S.W.2d 837 (Tex.Cr.App.1967); Evans v. State, 430 S.W.2d 502 (Tex.Cr.App.1968); Vines v. State, 479 S.W.2d 322 (Tex.Cr.App.1972); Jones v. State, 496 S.W.2d 566 (Tex.Cr.App.1973); Alvarado v. State, 508 S.W.2d 74 (Tex.Cr.App.1974).
“In the instant case a reversal is called for under the theory the statute becomes mandatory when the request is made and any refusal to furnish a court reporter is prejudicial or under the theory of the cases cited above since harm is alleged or shown. Since there should be no difference in the test applied merely because the request is to take the voir dire examination rather than the trial on the merits, the above cited cases are overruled as to the extent of any conflict with the opinion herein. The same portion of a statute should not be divided and given different interpretations. . . 527 S.W.2d, at 538-539, n. 6.

Petitioner contends the decision in Cartwright, supra, overruling the application of Art. 40.09(4), supra, upon which his appeal was decided, should be given retroactive application to his case, and that his 1971 conviction should now be set aside for the failure of the trial judge to grant his request to have a court reporter take down the jury voir dire.

Both before and after Cartwright, supra, the refusal of a trial court to grant a defendant’s request to have a court reporter record the jury voir dire constituted error. The change in the law effected by Cartwright only concerned what record must be presented on appeal to show reversible error. Before Cartwright it was held that violation of Art. 40.09(4), supra, would present reversible error on appeal only if “harm was alleged or shown to have resulted from the refusal to furnish a court reporter.” Cartwright, at n. 6. This rule for presenting reversible error was established well before petitioner’s 1971 trial, Morris v. State, 411 S.W.2d 730; McClain v. State, 432 S.W.2d 73, and compliance with the pre-Cartwright rule for presenting reversible error had resulted in reversals prior to petitioner’s trial. Williams v. State, 418 S.W.2d 837; Evans v. State, 430 S.W.2d 502. The application of that rule to petitioner’s appeal cannot be said to have been unexpected. Had appellant alleged or shown harm to have resulted from the trial court’s violation of Art. 40.09(4), supra, he would have been entitled to reversal.

The premise of petitioner’s assertion that the Cartwright rule should be applied to his case is that he has been denied the protections of Article 40.09(4), supra, “because of a misinterpretation of the statute which has now been rectified.” We reject this premise. The construction of Art. 40.09(4) has been the same both before and after Cartwright. In Morris v. State, supra, the first case to address the new provision of the 1965 Code of Criminal Procedure, the Court held:

“There can be no doubt but what the learned trial judge erred in failing to comply with all of its [Art. 40.09(4)] terms. The question remains, however, whether such error is reversible error given the particular circumstances of the case at bar.”

Also on the direct appeal of petitioner’s conviction the majority acknowledged that error was presented:

“In Morris, this court made clear that the trial court had erred and its action was not to be commended but refused to reverse an otherwise valid conviction in the absence of any specific assertion of prejudice.” 496 S.W.2d, at 572.

As stated above, the change effected by Cartwright v. State, supra, only concerned a matter of appellate practice. That case did not change the requirements of Art. 40.09(4), nor did it declare that error under that provision would constitute fundamental error depriving a defendant of a fair trial. Such holdings would present different retroactivity considerations.

The matter goes neither to the power of the courts to exercise jurisdiction in the case, nor to the integrity of the trial process itself; rather it goes strictly to the review process. Furthermore, the changed rule did not extend the scope of the review process; it merely reduced the threshold for securing reversal for violation of a rule designed to facilitate the effectiveness of the review process. It was designed to encourage obedience to such a rule by mandating reversal for its violation. As such, its purpose clearly has a prospective intent. We perceive no interest of justice that would be served by giving it retroactive effect, and petitioner has advanced none. The rule itself being a creature of judicial policy, and finding justice would not be served by applying the rule retroactively, we decline to do so.

Relief is denied.

      . Implicit in petitioner’s argument is the idea that Cartwright discovered the true meaning of the statute. We reject this notion for the reasons stated in this opinion. This excerpt from 10 A.L.R.3d 1377-1378 sheds some light on the subject:
      “Under the classical view that the courts merely discovered and announced existing law, which they had no hand in creating, no issue of restricting the rule of an overruling case to prospective operation could be presented, since the act of overruling was a confession that the earlier rule had been erroneous and should never have been applied at all, but the modern decisions, taking a more pragmatic view of the judicial function, have recognized the power of a court to hold that an overruling decision is operative prospectively only and is not even operative upon the rights of the parties to the overruling case. As a matter of constitutional law, retroactive operation of an overruling decision is neither required nor prohibited. Accordingly, most courts now treat the question of how an overruling decision should operate as one of judicial policy rather than of judicial power, and recognize that varying results may be reached, depending on the particular circumstances presented and the particular rule affected.”
      Without adopting either viewpoint to the exclusion of the other, we note that the judicial function involves elements of both, at times discovering the law and at times operating on policy considerations, as the context requires.

      . If anything, it restricted the scope of the review process, in that issues dependent on the denied record for determination are placed beyond the scope of review and are no longer even mentioned.


text:
    Robert Allen JORDAN, Appellant, v. The STATE of Texas, Appellee.
    No. 56539.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 1, 1978.
    Rehearing En Banc Denied March 22, 1978.
    Tom Mills, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., John Tatu, David C. Schick and D. Mark Elliston, Asst. Dist. Attys., Dallas, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for unlawfully carrying a weapon on premises licensed to sell alcoholic beverages, V.T.C.A. Penal Code, Sec. 46.02. Punishment, enhanced by proof of one prior felony conviction, was assessed by the jury at twelve years and a $3,000.00 fine.

Appellant contends the trial court erroneously refused to instruct the jury on the issue of the legality of the seizure of the pistol under the provisions of Article 38.23, V.A.C.C.P. Appellant’s objection to the court’s charge specifically pointed out his complaint and cited the statutory provision relied on. It was timely presented to the court and was overruled. Article 38.23, supra, provides:

“No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
“In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.”

The terms of Article 38.23, supra, are clearly mandatory, the only issue being whether under the facts of a particular case an issue concerning the validity of the search is raised by the evidence. Where no such issue is raised by the evidence, the trial court acts properly in refusing such a request. Fisher v. State, Tex.Cr.App., 493 S.W.2d 841; Stein v. State, Tex.Cr.App., 514 S.W.2d 927. However, where such an issue of fact is raised, the defendant has a statutory right to have the jury charged. Even before it was a matter of statutory right, it was part of the case law. In Boles v. State, 137 Tex.Cr.R. 521, 132 S.W.2d 881, 883, it is stated:

“Whether information received by the officers constituted probable cause is a question primarily for the court, but if the facts upon which the officers claim to act are controverted, it becomes an issue of fact for the jury under proper instructions.”

In Lee v. State, 126 Tex.Cr.R. 18, 70 S.W.2d 185, 187, this Court held:

“A sharp issue was raised as to whether the facts existed which were claimed by the state to constitute probable cause. It has been the uniform holding in our decisions that whether probable cause exists for the search of an automobile was a question primarily for the court, but if the existence of the facts claimed to constitute probable cause is controverted, it then becomes an issue for the jury under appropriate instructions.” and cases cited therein.

And in McGee v. State, 128 Tex.Cr.R. 456, 81 S.W.2d 683, 684, this Court held:

“If the facts upon which the officer claims to have acted are controverted, it would become an issue for the jury under proper instructions.” See also Parrack v. State, 121 Tex.Cr.R. 210, 51 S.W.2d 711; Stein v. State, supra.

In the case before us appellant was at the Playmate Club, an establishment licensed to sell alcoholic beverages, when Officer Barn-well of the Dallas Police Department arrived with Betty Pruitt, a former friend of appellant.

Barnwell testified he sent Pruitt in first to locate appellant. When she came back out she told Barnwell where appellant was seated and how he was dressed. Barnwell then went in, identified himself to appellant as a police officer, and asked if he would come outside to talk. Appellant declined and Barnwell went outside alone to wait for additional officers he had previously requested as a cover unit. Two uniformed officers arrived and entered the club with Barnwell. They remained near the door while Barnwell went back to appellant and asked him if he was ready to go outside for a talk. Appellant walked out the front door with Barnwell and the other two officers behind. Once outside, Barnwell asked appellant to turn around, which he did and put his hands on the wall. A pat down search was conducted and the pistol introduced at trial was discovered in appellant’s left boot. Appellant was then placed under arrest. Barnwell testified he saw no crimes committed by appellant in the club. Although he testified that appellant was not under arrest prior to the discovery of the pistol, he also testified that he would have talked to appellant at that time even if appellant did not want to talk, indicating appellant would not have been free to leave. Appellant’s objection to the conversation between Barnwell and Pruitt just before he entered the club was sustained during Barnwell’s testimony in the ease in chief. When called on rebuttal, Barnwell testified that Pruitt told him just before he went in to talk to appellant that he always carried a 357 Magnum in his left boot and that he was armed and dangerous.

Pruitt, testifying for the defense, stated she was at the Playmate Club when appellant was arrested. She denied ever telling Barnwell that appellant always carried a gun or that he was armed and dangerous. She denied knowing appellant had a gun that night, denied ever seeing him carry a gun, and denied telling Barnwell he carried a 357 Magnum. She claimed she had not seen appellant for two weeks before his arrest and had no way of knowing whether he was carrying a gun.

The State’s brief in response to this ground of error asserts in conclusory fashion that no issue concerning the validity of the search is raised by the evidence. In reply to another ground of error, the State asserts the search was a lawful pat down to determine if appellant was armed. Such a search, however, must be supported by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889; Keah v. State, Tex.Cr.App., 508 S.W.2d 836. While Barnwell testified to information received from Pruitt supporting such a conclusion, Pruitt also testified and specifically denied giving such information. Thereby a fact issue on the admissibility of the gun under Article 38.23, supra, was raised.

In Rose v. State, Tex.Cr.App., 470 S.W.2d 198, 200, we held that the evidence therein did not require the submission of an Article 38.23 charge to the jury. We observed:

“No witness was called by the appellant to controvert the testimony of the officers. The cross-examination did not raise a fact issue on the right to arrest. Therefore, the court did not err in refusing the charge.” (Emphasis added.)

In the present case, such an issue of fact was raised by Pruitt’s testimony. For this reason, we hold that reversible error was committed when the trial court refused to instruct the jury as to the issue of the legality of the search and seizure of the gun as required by Article 38.23, supra.

Accordingly, the judgment is reversed and the cause remanded.

      . In its reply to that other ground of error, the State also argues Barnwell was authorized to make a warrantless arrest on the facts known to him at the scene. Apparently the State relies on testimony that Pruitt told Barnwell that a third person had told her appellant had committed a burglary under investigation by Barnwell. This burglary was the subject Barn-well wished to discuss with appellant. Barn-well admitted he had no knowledge of the credibility or reliability of either Pruitt or the third person, and further testified he did not approach appellant to arrest him, but only to investigate the burglary. Furthermore, none of the evidence on this theory was presented before the jury, and thus would in no event have any bearing on submission of the fact issue under Article 38.23, supra, which was raised by the evidence before the jury.


author: ONION, Presiding Judge. ROBERTS, Judge,

text:
    Don Louie WARREN, Appellant, v. The STATE of Texas, Appellee.
    No. 55613.
    Court of Criminal Appeals of Texas, En Banc.
    March 1, 1978.
    Rehearing Denied March 22, 1978.

      Willis T. Taylor, Daniel H. Benson, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty. and H. Grady Terrill, III, Asst. Dist. Atty., Lubbock, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for capital murder in which the punishment of death was assessed following the jury’s affirmative answers to the special issues. See V.T.C.A., Penal Code, § 19.03(a)(2), and Article 37.071, Vernon’s Ann.C.C.P.

At the outset we are confronted with appellant’s contention that the evidence was insufficient to support an affirmative finding by the jury to special issue No. 2 submitted at the penalty stage of the trial, which inquired into the probability of the appellant’s committing criminal acts of violence that would constitute a continuing threat to society. See Article 37.071, Vernon’s Ann.C.C.P.

At the guilt stage of the trial the State offered evidence showing that shortly after 7 a.m. on January 4, 1975 Bob Tucker discovered the body of his brother, Victor Wayne Tucker, the deceased, in the deceased’s home at 6203 West 19th Street in Lubbock. The police were called. They found the body of the deceased with a bullet wound under the left eye, a bloodied head, lying in a back bedroom with a loaded but unfired .25 caliber pistol lying at his feet. The deceased, a service station operator, was known to carry a weapon with him. Drawers were pulled out and items were scattered about the bedroom. A locked money box was found near the deceased. It contained cash and endorsed checks. The police found a key in the deceased’s pocket which opened the box. A wristwatch, a digital clock and other items belonging to the deceased were found behind the house. A .38 caliber pistol known to have been kept by the deceased in the bedroom was found to be missing. An empty holster was found on the bed. Dr. John P. Ray, Jr., determined that the cause of death was a single gunshot wound in the face penetrating the central nervous system resulting in the destruction of the brain, skull fracture, etc.

On March 26, 1975, after receiving information from Steve Elliott, Lubbock police arrested the appellant, who shortly thereafter gave an extrajudicial confession which was introduced into evidence by the State. In his confession appellant admitted that he and one Johnny Barone had decided to burglarize the house at 6203 West 19th Street and they had gone there unarmed and broken in. While there, appellant found a pistol and put it in his coat pocket. While in a bedroom, he later heard someone enter the front door and heard talking, suggesting two persons. He then related a man walked into the bedroom, flipped on the light and started yelling at him, which scared him. The man then pulled a gun, and when he did, the appellant pulled the gun out of his coat. The confession then recites, “. . .1 don’t remember shooting him but I was the only one that had a gun. I was so scared that he was going to shoot that I didn’t know what I was doing.” Appellant then related he fled the house with Barone and that they buried the pistol in Carlisle but later recovered it and sold it.

Steve Elliott testified for the State that appellant admitted he had shot and killed the deceased. On cross-examination he related the appellant stated the deceased pulled a gun and that he (appellant) “just shut his eyes and shot.”

Mrs. Shirley Williams, a married woman, testified she had lunch with the deceased on January 3, 1975, and later went to one of deceased’s service stations at closing time and followed the deceased in her car to his house about 11 p.m. The deceased arrived first, opened the house and met her at the door, and she entered the living room. The deceased then went to one of the bedrooms, and Williams heard a noise like a scuffle and then a shot, and she left immediately. She did not see what happened and did not report her presence at the scene even when she learned of the death. When first contacted by the police, she denied any knowledge of the event. She did not make a statement until the date of appellant’s arrest.

Testifying in his own behalf, the twenty-five year old appellant admitted the burglary and the shooting. He reiterated that he went to the house in question, found a pistol and placed it in his coat pocket, and that he and Barone were later surprised by the deceased, who said, “You son of a bitch I’m going to kill you.” He related that when the deceased pulled a gun the thought ran through his mind he was going to be shot and that in an act of self-preservation he pulled the pistol from his pocket and there was a loud explosion. Appellant admitted that he had been convicted of felony theft in 1971 and placed on probation, which was revoked six months later as a result of a burglary of a coin-operated machine. In July, 1974 he was released from the Department of Corrections.

At the punishment phase of the trial, the State offered the pen packet as to the four year felony theft conviction from Hockley County and rested. The defense offered no evidence.

Although Article 37.071, supra, provides that at the penalty stage of a capital murder trial “evidence may be presented as to any matter the court deems relevant to sentence,” the above was all the evidence before the jury for the purpose of deciding the special issue No. 2.

Thus, to determine the question before us, we have only the evidence as to the instant offense presented at the guilt stage of trial and the pen packet offered at the penalty stage of the trial reflecting appellant’s prior felony theft conviction. There was no qualified psychiatric testimony as to appellant’s psychiatric makeup, which has been held to have probative value as to special issue No. 2 under Article 37.071, supra; Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976); Robinson v. State, 548 S.W.2d 63 (Tex.Cr.App.1977), nor did the State offer other evidence of aggravating factors bearing on this issue such as a personal history of violence, that appellant lacked respect for human life, etc.

There was, of course, evidence of a prior four year felony theft conviction and the revocation of probation based upon burglary of a coin-operated machine. The fact that a defendant has a significant criminal record, including the range and severity of any prior criminal conduct, is certainly a factor to be considered. In the instant case, however, there was no evidence to show that any violence was connected with appellant’s criminal record. In fact, in argument the district attorney admitted the absence of violence in appellant’s prior criminal conduct while arguing the lack of rehabilitation.

The facts of the instant case reflect a criminal act of violence, but it was not a calculated act. The State’s evidence in the form of appellant’s confession shows that appellant went unarmed to the deceased’s house for the purpose of burglarizing the house. There he found a pistol, which he placed in his coat pocket. He was surprised in the bedroom by the deceased, whom he did not know. When the deceased pulled a gun, yelled at him and threatened to kill him, he shot the deceased. The confession reflects appellant was so scared “he was going to shoot us that I didn’t know what I was doing . . . . I don’t remember shooting him but I was the only one that had a gun.” The appellant’s story that the deceased pulled a gun is supported by other evidence that the deceased was known to carry a pistol and the fact that his .25 caliber pistol was found at his feet when his body was discovered.

Thus, there was no evidence of past violence, no evidence that violence was initially intended during the burglary and no evidentiary predictions of future violence.

While there may be cases where the evidence offered at the guilt stage of the trial may be sufficient to support an affirmative finding to special issue No. 2 under Article 37.071, we conclude under the circumstances of the instant case that the evidence is insufficient to sustain the jury’s affirmative finding as to special issue No. 2 — that the appellant would commit criminal acts of violence that would be a continuing threat to society.

The judgment is reversed and the cause is remanded.

ROBERTS, Judge,

concurring.

I concur in the result reached by the majority in this case. However, I feel constrained to address the following portion of the majority opinion which states:

“There was no qualified psychiatric testimony as to appellant’s psychiatric makeup, which has been held to have probative value as to special issue No. 2 under 37.071, supra; Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976); Robinson v. State, 548 S.W.2d 63 (Tex.Cr.App.1977), nor did the State offer other evidence of aggravating factors bearing on this issue such as personal history of violence, that appellant lacked respect for human life, etc.”

Ante at 476.

The above quotation, in my opinion, improperly implies that had the State introduced qualified psychiatric testimony as to the appellant’s psychiatric makeup, the evidence would have been sufficient to support an affirmative finding by the jury as to Article 37.071(b)(2). Since there was no evidence of past violence and no evidence that violence was initially intended during the burglary, it is inconceivable that psychiatric testimony concerning the appellant’s psychiatric makeup could alone be sufficient to support an affirmative finding as to Article 37.071(b)(2). Therefore, even if the State had introduced qualified psychiatric testimony as to the appellant’s psychiatric makeup, the evidence would have been insufficient to support the jury’s affirmative finding as to Article 37.071(b)(2).

      . Article 37.071(b)(2) provides:
      “(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
      “(1) * * *
      “(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
      “(3) * * *”

      . It appears the offense was used as the basis of the revocation, but it does not appear that appellant was independently prosecuted for the burglary of a coin-operated machine.

      . The statute prohibits, however, evidence secured in violation of the federal or state constitutions.

      . See and cf. Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App.1976), cert. den. 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977); Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977).


author: ONION, Presiding Judge.

text:
    Eugene WILSON, III, Appellant, v. The STATE of Texas, Appellee.
    No. 54050.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 8, 1978.

      Donald A. Smyth, Rosharon, for appellant.
    Tom Hanna, Dist. Atty. and Jimmie R. Stanton, Asst. Dist. Atty., Beaumont, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the unauthorized use of a motor vehicle. Punishment was assessed at ten (10) years’ confinement by the court following a jury verdict finding the appellant guilty of the primary offense and after the court found at the penalty stage of the trial that appellant had been previously convicted of a felony as alleged in the indictment.

At the outset we are confronted with appellant’s contention that he was denied due process and due course of the law of the land because the trial court lacked jurisdiction sua sponte to set aside his final conviction for the same primary offense and to order a new trial on a new indictment.

This contention is advanced in appellant’s supplemental brief filed only in this court. The State argues that the brief and ground of error was not timely filed. See Article 40.09, § 9, V.A.C.C.P. We shall, however, consider the contention “in the interest of justice.” See Article 40.09, § 13, V.A.C.C.P.

The record reflects that appellant was originally indicted for the unauthorized use of a motor vehicle with a prior conviction for burglary being alleged for enhancement of punishment in trial court No. 31528. On May 15, 1974 one Gary Ankrom was appointed to represent the appellant, who was indigent. On June 20, 1974 the State apparently abandoned the enhancement portion of the indictment and the appellant entered a guilty plea before the court to the primary offense alone and was assessed a punishment of four (4) years’ confinement in the Department of Corrections. Sentence was imposed on the same date after the waiver of time to file motion for new trial, etc. No notice of appeal was given. The appellant was transferred to the Department of Corrections. The conviction became final.

On August 6,1975 the trial court appointed Ramie H. Griffin, Jr., to represent the appellant. The letter informing Mr. Griffin of his appointment (found in the record) states that the trial judge has learned “that Mr. Ankrom (appellant’s counsel at his original trial) has never been licensed to practice law in the State of Texas.” Said letter instructed appointed counsel to contact the appellant and advise the trial court what action was necessary to protect appellant’s rights. Although sentence had been imposed more than a year before the said letter stated, “If a motion for a new trial is not filed in this case, I will construe that as indicating the defendant’s waiver of his right to counsel on the date the plea was entered.”

On August 13,1975 the appointed counsel by letter requested the appellant be returned to Beaumont by bench warrant. The docket sheet reflects that on August 18, 1975 a bench warrant was issued. Thereafter over a period of several months various counsel were appointed to represent the appellant and were subsequently relieved. On a printed form entitled “Notice of Resetting” dated October 28, 1975 is found a handwritten notation, “New Trial Granted Today . . . Mr. McQuary will remain as counsel for Defendant.” On the same date there is a docket sheet entry stating, “Wilson asked for new trial. New trial is granted. Bond set at $15,000.” The entry is followed by the trial judge’s, signature.

We do not find in the record any written motion for new trial, any application for post-conviction writ of habeas corpus, nor any other pleadings filed by the appellant. Further, we do not find any transcription of the court reporter’s notes on October 28, 1975 to reflect what transpired. The docket sheet entry is the only indication the appellant ever requested (apparently orally) any relief from his conviction. There is no formal order granting a new trial in the record.

On November 7, 1975 Ray McQuary was relieved of his appointment and other counsel was appointed. However, on November 19, 1975 Mr. McQuary was re-appointed as appellant’s sole counsel.

On February 5, 1976 the appellant was re-indicted in trial court Cause No. 33176 for the primary offense of unauthorized use of a motor vehicle for which he had been previously convicted. The new indictment alleged a prior felony conviction for driving without owner’s consent for enhancement of punishment rather than the prior burglary conviction alleged in the original indictment.

On February 11, 1976 the appellant was tried before a jury upon the subsequent indictment and assessed a punishment of ten (10) years by the court as earlier noted. Sentence was imposed and notice of appeal was given. On February 13,1976 the original indictment was dismissed by the court upon written motion of the State.

Article 11.07, V.A.C.C.P., provides that after final conviction in any felony case the writ of habeas corpus must be returnable to the Court of Criminal Appeals. The statute then details the procedure to be utilized and provides in part in § 3 that “[ajfter conviction the procedure outlined in this Act shall be exclusive and any other proceeding shall be void and of no force and effect in discharging the prisoner.”

It has been consistently held that the trial court is without authority to grant a new trial in a felony case after a conviction becomes final as only the Court of Criminal Appeals has such authority. Ex parte Johnson, 153 Tex.Cr.R. 619, 224 S.W.2d 240 (1949); State ex rel. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892 (Tex.Cr.App.1961); Ex parte Friday, 545 S.W.2d 182, 183 (Tex.Cr.App.1977); Ex parte Williams, 561 S.W.2d 1 (Tex.Cr.App.1978).

Here the trial court’s action in granting a new trial and in subsequently dismissing the indictment in trial court Cause No. 31528 was null and void. The original conviction for unauthorized use of a motor vehicle obtained on June 20, 1974 is still an outstanding conviction which has not been set aside in accordance with the procedures prescribed by law. The attempt to re-indict and re-try the appellant for the same offense, while there was still an outstanding conviction, is a nullity. Whether the court sua sponte granted a new trial or whether it took such action upon the oral request of the appellant would not call for a different result.

The State recognizes that the court did not have jurisdiction and that the proper procedure would have been a post-conviction habeas corpus proceeding under Article 11.07, supra, but argues that the motives of the trial court were “(1) to protect the constitutional rights of appellant (which were violated due to no one’s fault except that of an imposter), and (2) to make a contribution in helping to keep down the size of the already enormous workload imposed upon” the Court of Criminal Appeals.

The State contends that if the proper procedure had been followed this court would have surely set aside the conviction and that the end result would have been the same, so the appellant has not been injured. This is speculative at best and offers no justification for this court to ignore the clear provisions of Article 11.07, V.A.C.C.P.

The judgment and sentence in Cause No. 31528 never having been properly set aside are still outstanding. The judgment in Cause No. 33176 is null and void and of no force and effect. Such judgment and the sentence imposed pursuant thereto are hereby set aside. The cause is reversed and the prosecution under Cause No. 33176 is ordered dismissed.

      . Article I, § 19, Texas Constitution.

      . This trial judge was not the original trial judge, but his successor in office.

      . The record reflects that at the time Mr. Ray McQuary was an attorney for the Staff Counsel for Inmates and had been appointed to represent the appellant.

      . § 2 of Article 11.07, V.A.C.C.P., was amended by Acts 1977, 65th Leg., p. 1974, ch. 789 (eff. Aug. 29, 1977). It was not in effect at the time of the trial court’s action, but would not call for a different result even if it had been.

      . This record is devoid of evidence of the status of appellant’s original trial “counsel” other than assertions by the trial court he was not licensed to practice law in Texas. There does not appear to have been any evidentiary hearing on the matter. In oral argument appellant’s counsel, in answer to an inquiry from the bench, stated that such “counsel” had been a law student in Alabama, but had not been licensed to practice there or in Texas.

      . In view of our disposition, we need not reach the question raised by appellant that the imposition of the ten year sentence at his second trial was in violation of the teachings of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974).


author: W. C. DAVIS, Judge.

text:
    Ruben G. SALAZAR, Appellant, v. The STATE of Texas, Appellee.
    No. 54041.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 8, 1978.

      Jimmy Phillips, Jr., Angleton, for appellant.
    Ogden Bass, Dist. Atty. and A. B. Crowther, Jr., Asst. Dist. Atty., Angleton, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for indecency with a child, V.T.C.A., Penal Code, Sec. 21.11. Appellant was tried before a jury, which assessed his punishment at ten (10) years’ confinement in the Texas Department of Corrections.

The complainant, thirteen years old at the time of the offense, testified that on August 21, 1975, she was walking to a Seven-Eleven store. As she approached the store, she saw appellant standing beside the store, masturbating. She stated that as she walked past him he grabbed her and pulled her to the ground behind the store. She testified that his pants were unzipped and that she could see his penis. She stated that appellant tried to take her pants off but that she hit him and then ran away.

Appellant presented a defense of alibi, but did not testify in his own behalf.

In his third ground of error, appellant contends that “the trial court erred in refusing to grant a mistrial when it became apparent that a juror had given false information concerning a material fact during the voir dire examination of the jury panel.” He further contends that the false information misled appellant and deprived him of an impartial jury and a fair trial.

The voir dire examination of the jury does not appear in the record before us. However, appellant timely filed bills of exception which reflect the substance of appellant’s complaint. These bills of exception were never acted upon by the trial court, and therefore are deemed approved without qualification. Art. 40.09, Sec. 6(a), Vernon’s Ann.C.C.P. The record also contains juror information sheets reflecting information that jurors had given the parties in the cause.

Therefore, the record reflects that juror Maurice Wooley noted on his juror information sheet that he had never been a complainant or witness in a criminal case. He indicated again upon voir dire examination by the State that he had never before been a witness in or involved in a criminal proceeding. Wooley was accepted as a juror by both parties.

During the course of the trial, after the State rested its case, juror Wooley instructed the bailiff that he wanted to speak to the trial judge. The judge and Wooley met and had a discussion, after which the trial judge called the attorney for the State and the defense attorney into his chambers and informed them of the conversation. The record reflects that Wooley told the trial judge that he had given false information during voir dire examination concerning his previous involvement in a criminal case; he had in fact been a witness in a criminal case five years prior to that time when he was an eyewitness to a sexual assault on his own daughter by a Mexican-American male. The trial judge stated that Wooley said that his previous involvement in a criminal case would not influence his decision in the instant case and that he would judge it strictly from the evidence. Wooley also stated that he had not told any of the other jurors about his experience and that he would not do so. Appellant moved for a mistrial, which the court denied.

Appellant now contends that he was deprived of an impartial jury since the juror, through no fault of appellant, withheld material information upon voir dire examination. He contends that had he known the truth, he would have struck Wooley, either by a challenge for cause, Article 35.16(a)(8), (c)(2), Vernon’s Ann.C.C.P., or exercised one of his peremptory challenges, Article 35.14, Vernon’s Ann.C.C.P.

It is clear that juror Wooley was in violation of his oath when he withheld information during voir dire examination. See Article 35.02, Vernon’s Ann.C.C.P. The issue thus presented to this Court is whether the trial court should have granted a mistrial during the course of the trial when it became known that the information withheld by the juror was material. We hold that the trial court erred in not granting appellant’s motion for a mistrial. This is true regardless of the juror’s statement that he would decide the instant case upon the evidence adduced at trial, since appellant had been effectively denied an opportunity to strike the juror during the voir dire examination.

In Norwood v. State, 123 Tex.Cr.R. 134, 58 S.W.2d 100 (1933), this issue was squarely presented to this Court. There, we held that the defendant in a rape prosecution was entitled to a new trial where a juror failed to disclose on voir dire examination that his sister had previously been the victim of a sexual offense. We stated “[i]t has often been held that, when a partial juror or biased juror or prejudiced juror is selected without fault or lack of diligence on the part of the accused or his counsel, they acting in good faith upon his responses to questions on voir dire and having no knowledge of their inaccuracy, there exists a good ground for a new trial, (citations omitted)” We further stated that the defendant “used due diligence. He was misled by the responses of the juror. Had the juror revealed the fact that his sister had suffered an experience similar to that of the prose-cutrix, [the defendant] would not have accepted him. Relying upon the answer of the juror, [the defendant] was deprived of his right to peremptorily challenge him.” The jury acts as a unit and the disqualification or prejudice of one of its members may be sufficient to vitiate the verdict. See also Shaver v. State, 162 Tex.Cr.R. 15, 280 S.W.2d 740 (Tex.Cr.App.1955); King v. State, 129 Tex.Cr.R. 371, 87 S.W.2d 726 (1935); Bolt v. State, 112 Tex.Cr.R. 267, 16 S.W.2d 235 (1929).

The voir dire process is designed to insure, to the fullest extent possible, that an intelligent, alert, disinterested and impartial jury will perform the duty assigned to it. La Rosa v. State, 414 S.W.2d 668 (Tex.Cr.App.1967). Where a juror withholds material information in the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury. That a juror will state that the fact that he withheld information will not affect his verdict is not dispositive of the issue where the information is material and therefore likely to affect the juror’s verdict.

In the instant case, the information withheld was certainly material; appellant was a Mexican-American male on trial for exposing his genitals to a young girl, classified as a sexual offense; the juror had been an eyewitness to a sexual assault on his own daughter by a Mexican-American male some five years earlier and had testified to such at a previous trial.

Appellant was without fault or lack of diligence and he was misled, acting in good faith on the juror’s responses to inquiries on this matter. He was deprived of his right to peremptorily challenge the juror, which action he asserts he would have taken if the juror had disclosed this fact upon voir dire examination. Accordingly, appellant is entitled to a new trial.

The judgment is reversed and the cause remanded.

      . Notice of appeal was given on March 3, 1976. On April 5, 1976, appellant filed a motion for an extension of time for filing bills of exception. On April 5, 1976, the trial court granted an extension until sixty (60) days after completion of the record. On July 30, 1976, appellant received notice of completion of the record, and he timely filed his bills of exception on August 20, 1976.

      . The trial court has submitted a supplemental transcript to this Court qualifying one of appei-lant’s bills. While we need not decide whether this transcript is properly before us, we note that there is no qualification of appellant’s bills of exception relating to the voir dire examination.

      .Error is preserved. Cf. Magee v. State, 504 S.W.2d 849 (Tex.Cr.App.1974). Appellant also raised this issue in his motion for new trial. See Ables v. State, 519 S.W.2d 464 (Tex.Cr.App.1975).

      . Cf. Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974), wherein we held that an incident of juror misconduct raised no presumption of harm to appellant and he failed to show any. See also Tonche v. State, 478 S.W.2d 93 (Tex.Cr.App.1972).

      . We do not hold that an appellant is entitled to a reversal of his conviction in any case in which he discovers that a juror withheld information during voir dire. Where the information is not material and the juror can state that it will not affect his deliberation or verdict, an appellant may be unable to show harm.


text:
    Ex parte Monty Ray JORDAN.
    No. 57241.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 8, 1978.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an application for writ of habeas corpus, Art. 11.07, Vernon’s Ann.C.C.P.

Petitioner asserts that the order which purports to run the sentences in Cause Nos. 12654-A and 12667 cumulative to “the current sentence” is void.

On October 29, 1971, the petitioner was convicted in the 194th District Court of Dallas County in Cause No. C-71-7883-LM for the delivery of marihuana. He received a ten-year probated sentence. On April 13, 1972, his probation was revoked and he was sentenced to ten years imprisonment in the Texas Department of Corrections. On July 18, 1972, he was convicted in the 194th District Court of Dallas County in Cause No. C-72-2324-JM for possession of marihuana and received a ten-year sentence. The sentences in Cause Nos. C-71-7883-LM and C-72-2324-JM were to run concurrently, as of April 13, 1972.

On July 12, 1975, petitioner, apparently having been paroled, was convicted in the 102nd District Court of Red River County in Cause No. 12654-A for burglary. While awaiting sentencing, he escaped, was recaptured and received a two-year sentence on February 9, 1976, which was to “begin and operate from and after the current sentence now being served in the Texas Department of Corrections.” On that date, he also pled guilty in the same district court in Cause No. 12667 to an escape charge, and received a two-year sentence to run concurrently with the two-year sentence in Cause No. 12654-A.

Trial judges are given the discretion to cumulate sentences by statute. Article 42.08, Vernon’s Ann.C.C.P. However, to be valid, the cumulative order must be specific. In Ex parte Lewis, 414 S.W.2d 682 (Tex.Cr.App.1967), it was stated by this Court:

“A sentence is a final judgment and should be sufficient on its face to effect its purpose without resort to evidence in aid thereof. It should further convey to the authorities at the Texas Department of Corrections or any County jail clear and unequivocal orders of the trial court so that they may know definitely how long to detain the convict or prisoner.”

It has been said that a cumulative order should reflect: (1) the trial court number of the prior conviction; (2) the correct name of the court where the prior conviction was taken; (3) the date of the prior conviction; (4) the term of the years of the prior conviction; and (5) the nature of the prior conviction. Ward v. State, 523 S.W.2d 681 (Tex.Cr.App.1975). Orders containing less than the recommended elements of a cumulative order have been upheld. Phillips v. State, 488 S.W.2d 97 (Tex.Cr.App.1972). For example, this Court has upheld orders reciting two of the above details. Ex parte March, 423 S.W.2d 916 (Tex.Cr.App.1968). Further, we have approved an order referring only to the previous conviction’s cause number, where the court entering the order is the court which heard the prior cause. Ex parte Lewis, supra.

Clearly, the cumulating order in the instant case, that “said sentences do begin and operate from and after the current sentence now being served in the Texas Department of Corrections,” is insufficient, and therefore void. As the cumulating order is without effect, it is this Court’s order that the judgment of the 102nd District Court, dated February 9, 1976, is hereby corrected to show that the sentences in Cause Nos. 12654-A and 12667 will begin as of the day they were pronounced, February 9, 1976, and will run concurrently with the Dallas County sentences C-71-7883-LM and C-72-2324-JM, which were run concurrently, effective April 13, 1972. Article 42.-09, Sec. 2, Vernon’s Ann.C.C.P.; Ex parte Davis, 506 S.W.2d 882 (Tex.Cr.App.1974).

A copy of this order shall be delivered to the Texas Department of Corrections.

Relief granted.


author: TOM G. DAVIS, Judge.

text:
    Perry G. MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 57248.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 8, 1978.

      Alan Brown and Ed Kidwell, San Antonio, for appellant.
    Bill M. White, Dist. Atty., Lawrence R. Linnartz and Lisa M. Beck, Asst. Dist. At-tys., San Antonio, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from an order revoking probation.

On March 3, 1976, appellant entered a plea of guilty before the court to the felony offense of indecency with a child under V.T.C.A. Penal Code, Sec. 21.11(a)(2). Punishment was assessed at three years, probated.

Among the conditions of appellant’s probation was the following:

“1. Neither commit nor be convicted of any offense against the laws of the State of Texas; or any other state or of the United States of America; . . .."

On September 7, 1976, an amended motion to revoke was filed. The motion alleged in part that:

“. . . Perry G. Moore, the defendant, did on or about the 16th day of July A.D., 1976, in Bexar County, Texas knowingly and intentionally possess a controlled substance, namely marihuana in an amount in excess of four (4) ounces, in violation of the penal laws of the State of Texas and in violation of the said terms and conditions of his said probation.”

On January 5, 1977, after a hearing, the court entered an order revoking appellant’s probation. The court found that appellant had violated condition “(1)” of his probation as alleged in the first amended motion to revoke.

Appellant contends that the court abused its discretion in revoking his probation because such action was based on evidence which had been illegally seized.

The record reflects that at approximately 11:45 p. m. on July 16, 1976, Dale Hancock of the San Antonio Police Department received a call from his dispatcher for a burglary in progress. The dispatcher indicated that a white van was involved in the robbery. Upon arrival at the scene, Hancock noticed a white van parked several houses away from the address he had been given by the dispatcher. Two individuals, later identified as the appellant and Kevin Ker-sey, were observed standing near the van. Hancock summoned both individuals to come towards him and as they approached he noticed a strong smell of burning marihuana. He frisked both subjects and discovered a baggie of marihuana on Kersey. Nothing was found on the appellant. Ker-sey was then placed under arrest for possession of marihuana under two ounces, and the appellant was arrested for public intoxication. The white van, which the appellant indicated he owned, was subsequently searched by Officer Valdez, who had accompanied Hancock to the scene. Nothing of significance was discovered, and keys which had been taken from the van were returned to appellant. The officers then transported the appellant and Kersey to the Bexar County Jail. The van was left where it was parked.

George Wilson, a sergeant with the San Antonio Police Department, testified that after being relieved from duty at the Bexar County Jail at about 9:00 p. m. he returned to his home, which was located in the neighborhood where the appellant and Kersey were arrested. Wilson testified that sometime between 11:00 and 12:00 p. m. on the night of July 16th he received a telephone call from a neighbor, Mrs. Kersey. She advised him that her son had been arrested in front of their home and asked him to find out why and assist her in getting her son out of jail. He testified that he made inquiries with the jail, visited with Kersey over the phone, and made arrangements for Kersey to obtain assistance from legal aid in obtaining a personal recognizance bond.

Wilson then telephoned Mrs. Kersey and advised her what he had done. Wilson then testified as follows:

“I went back to watching TV. I believe I was drinking a beer and watching TV at the time. She called back a few minutes later, and she was worried because Perry Moore’s van was still parked out in front of her house. And I asked her, you know, why she was worried about it. And she thought maybe there would be some marijuana or something in the van that the police may come back out to the house and to satisfy her, I told her that I would come down and look in the van and, you know, to calm her down as much as I could.
* * * ⅜ 5k *
“I then went up to the house and went out to the van, which was parked just— well, actually it was right at her driveway, just the other side of her driveway. I looked in the van and the only thing that I could see was, I believe, a spare tire and there was a black guitar case. And, at this time, I was being — looking through the window on the driver’s side when I saw the suitcase and guitar case. I went around and opened the side door on the van and I opened the guitar case. Inside the guitar case was eight white plastic bags, containing about a pound each of what I believed to be marijuana, at the time.
“I then closed the van up and I went in and called the Dispatcher and told them to have Hancock return to that address. “Approximately an hour later, he arrived

Wilson then testified that he turned the marihuana over to Officer Hancock.

We initially note that Wilson, a police officer with the city of San Antonio, was a peace officer within the meaning of Art. 2.12, V.A.C.C.P. Gilbert v. State, Tex.Cr.R., 493 S.W.2d 783; Green v. State, Tex.Cr.App., 490 S.W.2d 826.

The State contends that since Wilson was off-duty his action in searching the white van was that of a private citizen, and therefore does not “fall within the perimeters of the Fourth Amendment proscription of unreasonable searches and seizures.” We disagree.

It is clearly established that “a police officer’s ‘off-duty’ status is not a limitation upon the discharge of police authority .,” Wood v. State, Tex.Cr.App., 486 S.W.2d 771, since an officer is for many purposes on duty 24 hours a day. Monroe v. State, Tex.Cr.App., 465 S.W.2d 757; Simms v. State, 167 Tex.Cr.R. 315, 319 S.W.2d 717.

In Thompson v. State, Tex.Cr.App., 426 S.W.2d 242, an off-duty policeman in plain clothes, who was “moonlighting” as an apartment building security guard, was attempting to break up a rowdy party when he was assaulted. This Court held that the officer was in the lawful discharge of his duties as a policeman.

We reject the State’s contention that Wilson was acting in a private capacity when he searched the white van.

The question before us becomes whether Wilson violated the appellant’s rights under the Fourth Amendment to the United States Constitution and Article 1, Sec. 9, of the Constitution of the State of Texas since evidence obtained in violation of the prohibition against unreasonable searches is inadmissible and must be suppressed upon a proper and timely motion. DeLao v. State, Tex.Cr.App., 550 S.W.2d 289; Smith v. State, Tex.Cr.App., 542 S.W.2d 420.

Probable cause for a search exists where the facts and circumstances known to the officer upon reasonable and trustworthy information would lead a man of reasonable caution and prudence to believe that the search would produce evidence pertaining to a crime. See Smith v. State, supra; Brown v. State, Tex.Cr.App., 481 S.W.2d 106. Exigent circumstances, no matter how compelling, will not justify a search where probable cause is lacking. Cole v. State, Tex.Cr.App., 484 S.W.2d 779; Brown v. State, supra. See United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).

Sgt. Wilson’s testimony as set out above indicates that he was advised by Kersey’s mother that she was “worried because Perry Moore’s [appellant’s] van was still parked out in front of her house.” According to Wilson, she further stated that she “thought maybe there would be some marihuana or something in the van . . . Wilson indicated that he searched the van simply “to calm her [Mrs. Kersey] down as much as I could.” Further, on cross-examination, Wilson was asked if his intention was to conduct a search of the van after the second call from Kersey’s mother. He answered, “My intention was to go through the van to satisfy her that either there wasn’t anything in the van or something so she would leave me alone, to tell you the truth.” It was further developed that no one had told Wilson that there was any marihuana in the van. Probable cause to justify the warrantless search is not shown.

We find that the court below erred in overruling the appellant’s timely filed motion to suppress the seized marihuana. Since the seized marihuana should have been suppressed, there was insufficient evidence before the court to support its finding that the appellant violated condition “(1)” of the conditions of his probation by possessing more than four ounces of marihuana. Beckworth v. State, Tex.Cr.App., 551 S.W.2d 414; Keel v. State, Tex.Cr.App., 544 S.W.2d 151; Scamardo v. State, Tex.Cr.App., 517 S.W.2d 293.

The trial court abused its discretion in revoking the appellant’s probation.

The judgment is reversed and the cause remanded.


author: DOUGLAS, Judge.

text:
    Eddie McDADE, Appellant, v. The STATE of Texas, Appellee.
    No. 57253.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 8, 1978.
    John L. Darrouzet, Austin, for appellant.
    Ronald D. Earle, Dist. Atty. and Charles E. Hardy, Asst. Dist. Atty., Austin, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

DOUGLAS, Judge.

Eddie McDade was convicted for burglary. His punishment was assessed at five years. On appeal he contends that he was not admonished by the trial judge as to range of punishment before the plea of guilty was accepted.

Initially McDade entered a plea of not guilty. After evidence was introduced, he informed the judge that he wanted to enter a plea of guilty. A full record of the proceedings is before this Court and it does not reflect that he was admonished as to the range of punishment before the judge accepted his plea. Under Article 26.13, V.A.C.C.P., this must be done before a plea of guilty may be accepted. See Murray v. State, 561 S.W.2d 821 (1977).

The judgment is reversed and the cause remanded.


text:
    Fred T. DURROUGH, Appellant, v. The STATE of Texas, Appellee.
    No. 57347.
    Court of Criminal Appeals of Texas, En Banc.
    March 8, 1978.
    Gerald H. Goldstein, Van G. Hilley, San Antonio, court appointed, for appellant.
    Bill M. White, Dist. Atty., Charles T. Con-away, Lucien B. Campbell and Bennie F. Steinhauser, Jr., Asst. Dist. Attys., San Antonio, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder in which the death penalty was assessed.

We are confronted at the outset with glaring error that requires reversal under a long line of well-established precedent. Some cases present close issues, but this is not such an issue: the law here is clear, and leaves no alternative but to reverse the conviction and to remand this capital punishment case for a new trial.

The only ground of error we need to address asserts:

“The trial court erred in failing to grant a change of venue upon proper motion by appellant in compliance with Article 31.03, T.C.Cr.P., when same was uncontroverted by the State either in the form of affidavit or other evidence presented to contest said venue issue.”

The record clearly supports appellant’s contention. Appellant filed his motion for change of venue under Art. 31.03, V.A.C. C.P., supported by his own affidavit and the affidavits of two residents of the county, asserting that there existed in the county so great a prejudice against him that he could not obtain a fair and impartial trial in that county. Art. 31.03(1), supra. The record also reflects that the motion was timely presented to the trial judge and that he overruled the motion without hearing any evidence.

Although the State could have joined issue with appellant by filing controverting affidavits under Art. 31.04, V.A.C.C.P., this was not done. Had the State taken such action, the court would have heard evidence and the burden would have been on appellant to prove the existence of prejudice. James v. State, Tex.Cr.App., 546 S.W.2d 306; Adami v. State, Tex.Cr.App., 524 S.W.2d 693. Here, as in Skillern v. State, Tex.Cr.App., 559 S.W.2d 828, the State utterly failed to take the steps necessary to rebut the presumption of harm created by appellant’s sworn motion and affidavits. Skillern v. State, supra, at 830 and 833. The State in its brief on appeal acknowledges that the cases of Flores v. State, Tex.Cr.App., 493 S.W.2d 785 (1973), and Wall v. State, Tex.Cr.App., 417 S.W.2d 59 (1967), stand for the rule that a motion for change of venue that complies with Art. 31.03, supra, and that is uncontroverted by the State, entitles the accused to a change of venue as a matter of law. The case before us is controlled by that rule.

Both Flores and Wall are recent cases and were decided by unanimous courts. The rule, however, is not of recent origin. It stems from the earliest days of this Court. In Davis v. State, 19 Tex.App. 201, 222 (1885), Judge Hurt, speaking for a unanimous court, wrote on this matter with these words:

“ . . .if there be no affidavit of a credible person made controverting the affidavit of the defendant’s supporting affidavits, the change [of venue] must be granted, because there is no issue between the parties.”

Again, Judge Hurt, writing in Carr v. State, 19 Tex.App. 635, 655-656 (1885), in which the defendant alleged both statutory grounds for a change of venue and the State’s affidavits only controverted one of those two grounds, said:

“There is, therefore, no issue between the state and the defendant upon the existence of such prejudice in the county as will prevent the defendant from obtaining a fair and impartial trial. This being the case, he was entitled to a change of venue.”

In Cox v. State, 90 Tex.Cr.R. 106, 234 S.W. 72 (1921), the rule was stated:

“The presentation of an application for change of venue, properly verified, makes it incumbent upon the trial judge to change the venue, unless the application is controverted in the manner prescribed by statute, or unless the controverting affidavit is waived by the accused, and evidence heard justifying the denial of the motion. Moore v. State, 46 Tex.Cr.R. 57, 79 S.W. 565; Carr v. State, 19 Tex.App. 656, 39 Tex.Cr.R. 573; Davis v. State, 19 Tex.App. 222; Logan v. State, 39 Tex.Cr.R. 573, 47 S.W. 645; Lemons v. State, 59 Tex.Cr.R. 299, 128 S.W. 416.”

In the instant case the State filed no controverting affidavits, and the trial court heard no evidence on the motion. Appellant was entitled to a change of venue as a matter of law.

The right protected by the statute is fundamental to our system of justice. The underlying constitutional basis for the statute and its application was well expressed by Judge Davidson in Randle v. State, 34 Tex.Cr.R. 43, 28 S.W. 953 (1894), and, although lengthy, that statement warrants repeating today:

“Our bill of rights provides that the accused in all criminal prosecutions ‘shall have a fair trial by an impartial jury.’ Article 1, Sec. 10. This language is of no doubtful significance. The trial shall be ‘fair,’ and the jury ‘impartial.’ ‘Impartial’ means ‘not partial; not favoring one party more than another; unprejudiced; disinterested; equitable; just. Jove is impartial, and to both the same.’ Webst. Diet. As thus defined, ‘impartial’ evidently means not favoring a party or an individual because of the emotions of the human mind, heart, or affections. It means that, to be impartial, the party, his cause, or the issues involved in his cause should not, must not, be prejudiced. The accused in this state, under our constitution and laws, is entitled to a ‘fair trial by an impartial jury’; and there is no other method provided by which an accused can be tried and punished. Looking to this supreme end, the constitution has further ordained that ‘the power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law; and the legislature shall pass laws for that purpose.’ Const. art. 3, Sec. 45. This provision of the constitution, when applied to criminal causes, could have been ordained but for the purpose of guarantying ‘a fair trial by an impartial jury,’ provided for by the bill of rights. Any other interpretation would render it meaningless, unless, ‘as sounding brass or tinkling cymbal.’ In pursuance of and in obedience to these high commands of the constitution, the legislature enacted that ‘a change of venue may be granted on the written application of the defendant, supported by his own affidavit and the affidavit of at least two credible persons, residents of the county where the prosecution is instituted, for either of the following causes, the truth and sufficiency of which the court shall determine: (1) That there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial. (2) That there is a dangerous combination against him instigated by influential persons, by reason of which he cannot expect a fair trial.’ Code Cr.Proc. art. 578. The single and only purpose for which this law was enacted was to secure the accused the right to ‘a fair and an impartial trial,’ which is the ‘fair trial by an impartial jury’ guarantied by the bill of rights. This statute realizes and is based upon the fact that there may be ‘so great a prejudice’ or such ‘a dangerous combination’ against the accused existing in the county in which the prosecution is instituted that he cannot obtain, or will be deprived of, ‘a fair and an impartial trial.’
******
“ . . . it frequently occurs that good men, honest citizens, swear that the accused cannot obtain a fair trial because of prejudice in the county. Ignorant people, persons uninformed as to the legal methods provided for obtaining juries, become apparently astonished at such affidavits, and inquire if it be true that 12 honest, fair men cannot be found in a county with whom to try the accused. Such questions, by their frequency of occurrence, have almost ceased to cause surprise, but evidence a wonderful degree of ignorance. If the accused be accorded the right to select his friends, or those by whom he is willing to be tried as jurors, from the county, independently of the right of the state to participate in such selection, then it might be safely asserted that motions for change of venue, as a matter of act, would be unknown to the practice in this state. But this is not true, and should not be; hence the jury must be selected under the rules and by the methods prescribed by law, and all laws in regard to changes of venue are enacted with a view to this fact. As has been forcefully said by the supreme court of Iowa in State v. Nash, 7 Iowa 347, 371: ‘The right to speedy and public trial by an impartial jury is guarantied by the constitution of this state to all persons accused of crime. It becomes us not to place a light estimate upon a right secured to us by such high authority. It is important to maintain the usefulness of our whole judicial system, that no suspicion of popular excitement in the administration of the law should be allowed to impair the public confidence in the fairness and impartiality of judicial proceedings. An excited state of public feeling and opinion is always the most unfavorable for the investigation of truth. Not only should the mind of the jury be wholly without bias and prejudice, it should not only be free from all undue feeling and excitement in itself, but it should be as far as possible removed from the influence of prejudice and feeling and excitement in others. A circumstance of small importance in itself may often, in the midst of a community stirred by passion and excitement, serve to turn the scales of justice. It is a difficult matter for a court in all cases to draw the true line of distinction, and to say when there is and when there is not such a state of popular feeling and prejudice as to prevent a fair and impartial trial. Every case must be judged by its own circumstances. * * There is, however, to be guarded against, a feeling and a prejudice not only within but without the jury box; and a jury, however right their intentions, are not always proof against the sympathies of the crowd. Influence of popular excitement and prejudice is too strong for the strongest resolution.’ ”

It should be clear to all familiar with our criminal justice system, and with the statutory and case law applicable to the issue before us, that the law leaves no alternative but to reverse this capital felony conviction and remand the case for a new trial.

The judgment is reversed and the cause remanded.

DOUGLAS, J., concurs in the result.