author: OLIVER, Judge.

text:
    James Lester BRAZIEL, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    May 13, 1975.
    Certiorari Denied by Supreme Court Sept. 2, 1975.

      Howard G. Swafford, Jasper, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, J. William Pope, Jr., Dist. Atty. Gen., Pike-ville, for defendant-in-error.
   OPINION

OLIVER, Judge.

Represented in his trial by retained counsel who was thereafter appointed by the court to represent him in his appeal, James L. Braziel was convicted of second degree murder upon an indictment charging him with the first degree murder of Steve Brewer in May of 1973, and was sentenced to the minimum statutory punishment of imprisonment in the penitentiary for 10 years. (TCA § 39-2408). He is now before this Court upon his appeal in the nature of a writ of error.

It appears that at the time of the homicide this defendant was a juvenile, under 18 years of age, and that in a proceeding in the juvenile court of the county the juvenile judge ordered him held for prosecution as an adult in the Circuit Court. Assignments complaining of that proceeding and the juvenile judge’s action are reserved for later consideration herein.

By one Assignment of Error the defendant challenges the sufficiency of the evidence to sustain a conviction of second degree murder, insisting that the proof, viewed in its most favorable light to the State, established no greater offense than voluntary manslaughter.

We summarize the material evidence. When a Marion County deputy sheriff, responding to a call, went to the home of John Grimes in that county, he found 17-year-old Steve Brewer dead, a gunshot wound in his chest, his head on the passenger’s side of the front seat of a car and his body on the ground. Blood was all around the area where he was, and from the car all the way into the kitchen of the house. The defendant and his brother Sidney were standing on the porch and the defendant was crying. When the officer asked them which one shot the deceased the defendant replied that he did. The officer then advised the defendant concerning his constitutional rights in keeping with the Miranda mandate. The defendant, who said he was living at the Grimes home, stated he would get the gun and led the way inside and unlocked a chifforobe door and removed an unloaded .12 gauge double-barreled shotgun and gave it to the officer. One cartridge and one empty shell were found in the living room. In a statement to the deputy, which the trial judge held in a hearing apart from the jury was voluntarily and understandingly made, the defendant said that he and the deceased had been arguing and the deceased slapped him and carried him into the bedroom and threw him onto the bed; that he got up and went to the chifforobe and got the shotgun and stood in the doorway between the bedroom and the living room, with the gun cocked and his finger on the trigger, and told the deceased to stand up and take his hand out of his pocket and if he had a gun to drop it on the floor; that he shot the deceased when he stood up and he fell back onto the sofa; that the defendant’s brother Sidney then helped the deceased to the car; and that he (the defendant) broke the shotgun down and locked it in the chifforobe and ran down the road. The officers found no pistol in the house or at the car. While they were still there, Grimes returned home from work, left the house for some 10 minutes and then came back in carrying a .38 pistol which he claimed he found in the house. The officers did not take that gun from him. The defendant’s father was found drunk in a car in the yard.

At the jail about 2:30 the same morning, upon learning the defendant was a juvenile and after permission was obtained from the juvenile judge to hold and interrogate him, he was again advised concerning his constitutional rights by TBI Agent Walker (who died prior to the trial) and, in the presence of the deputy and the coroner, the defendant substantially repeated the same statement above indicated. But he added that when his younger brother Sidney and the deceased came to the house they had been drinking beer and he and they had some discussion about either a car or a pickup truck (the witness did not remember which), and they then all went together to “Tojo’s” and got another six-pack of beer and drove around and drank it, drinking only one or two beers himself, and then returned to the house and he and the deceased got into an argument when the latter wanted to watch television and the defendant turned it off and the deceased then slapped him and carried him and threw him on the bed and went back into the living room; that he (the defendant) got the shotgun out of the closet and cocked it and put his finger on the trigger and told the deceased, who had his hand in his pocket, “if you’ve got a gun slide it on the floor,” and when they were 10 or 12 feet apart the shotgun went off unintentionally — he said he did not intend to pull the trigger.

The defendant, who said he was 18 years old and was 17 at the time of the homicide and could not read or write, testified that he had lived in the Grimes home for about 16 years and had known the deceased about a year; that he was working on a car in the yard when his father, his brother and the deceased drove up about 5:00 or 5:30 p. m.; that after some bargaining, the deceased sold a truck to the defendant’s father; that after the truck sale transaction, his brother Sidney and the deceased went out and got a six-pack of beer, and when they returned his father and he joined them and they drove to Whiteside to pay one of the father’s debts; that on the way back they stopped at Tojo’s where he and his brother played pool and the deceased and their father drank beer until about 11:30 p. m. (this was May 3, 1973) and then they all returned to the Grimes home about midnight; that when they got to the house, while his brother Sidney was looking for a jack to fix a flat tire and their father was passed out in the car, he and the deceased went inside and the deceased picked him up and threw him on the bed, “he didn’t mean nothing by it he was just playing around ... we played like that all the time,” and it didn’t make him mad; that while on the bed he noticed his watch crystal was broken and went over to the chifforobe and opened the drawer to put his watch in there and noticed that Grimes’ mother’s .38 pistol which was kept in that drawer was gone; that at this time the deceased was sitting on the couch in the living room drinking a beer; that, because Grimes didn’t like for anybody to play with the guns and might get mad and whip him and he wanted to put the gun up before Grimes came in, he asked the deceased if he had the gun; that when the deceased made no reply “I asked him, I told him again, I said if you’ve got the gun put it up before Johnny (Grimes) comes in, and he still didn’t say nothing, so I got the shotgun, an old shotgun . . and Sidney walked in about that time; “And I walked in there and I said Steve if you’ve got the gun give it to me I want to take it down to Johnny’s sister’s and put it up till Johnny comes in. He didn’t say nothing he just smiled at me, and I said give it to me before Johnny comes in if you don’t I’ll get a whipping, and he pulled it out and pointed it at me, and I said, are you going to shoot me? And he didn’t say nothing, and I said, and I said, if, I said Steve lay the gun down and push it to me, and he laid the gun down and pushed it to me and when he did I bent over to pick up the ’38, and the 12 guage [sic] shotgun went off”; that he had never fired that shotgun before; that he was scared and nervous and did not mean to hurt the deceased; that after the gun went off he broke it down and unloaded it and placed it and the pistol back where they belonged and ran down the road the short distance to Grimes’ sister’s house and called an ambulance and came back about 10 minutes later and the ambulance and the deputy sheriff were there; that he was crying and the deputy “walked up to me and asked me what happened, and I told him, and he said, well, take me in the house and give me the gun, and I took him in there and give, I got the gun and he asked me what happened and I told him”; and that he was scared when he talked to the officer and the TBI man and didn’t remember much about what he told them.

Upon cross-examination the defendant said that during the truck discussions between his father and the deceased, the deceased wanted a drink of water and he took him inside and gave him one and then made himself a sandwich and they went back outside together, and that he did not know whether the deceased got the .38 pistol but he never saw a gun or the imprint of one in the deceased’s pocket during their rounds the rest of the night; that up until they all returned to the house about midnight there had been no arguments or words passed between him and the deceased; that when he stood with the shotgun in the doorway between the kitchen and the bedroom, his thumb was on the right hammer and his finger on both triggers and he did not know how the gun went off; that the hammer must have pulled half-way back and slipped off when he bent over, but he agreed that to fire the gun a hammer would have to be pulled all the way back and that trigger would have to be pulled; that the only reason he got the shotgun at that hour of the night was to take it to Grimes’ sister’s house, “he told me if anybody ever started playing with them guns to take it down at his sister’s and put all the guns up, give them to her” and was going to take the pistol along also.

The defendant’s brother Sidney, 16 years old, corroborated the defendant’s story about the shooting almost exactly, testifying that he entered the house and saw the defendant lying on the bed and the deceased sitting on the couch in the living room; that the defendant got off the bed and went to the chifforobe and pulled out the top drawer and then asked the deceased where the pistol was and the deceased made no reply; that the defendant got the shotgun and went in the living room and told the deceased he wanted the pistol to take it to Grimes’ sister’s house; that the deceased pulled the gun from his pocket and pointed it at the defendant, and the defendant asked the deceased if he was going to shoot him and again the deceased made no reply; that the defendant then told the deceased to lay the gun down on the floor and slide it to him, and the deceased did so; that the defendant reached down for the pistol and the shotgun went off; that the deceased jumped up and started to run out the door and he caught him and started helping him outside, while the defendant stood on the floor crying; that the defendant then went to Grimes’ sister’s house to call the police; and that he never heard any argument between the deceased and the defendant. Sidney’s cross-examination did nothing to bolster his veracity, to say the least of it.

It was stipulated that the spent shell found in the house was fired from the left barrel of the shotgun.

Tested by the time-honored rules governing appellate review of the evidence in criminal cases when its sufficiency is challenged on appeal, Webster v. State, 1 Tenn. Cr.App. 1, 425 S.W.2d 799; McGill v. State, 4 Tenn.Cr.App. 710, 475 S.W.2d 223, certainly this record fully justified the jury in finding the defendant guilty of second degree murder and amply supports that verdict.

As we understand it, the essence of the defendant’s insistence is that the evidence failed to establish that he acted with malice aforethought in killing the deceased and that, therefore, at most it was sufficient to warrant his conviction of manslaughter only. Both our Supreme Court and this Court have frequently reviewed the law of this State with reference to the element in malice in homicide cases. We did so in Francis v. State (Tenn.Cr.App.), 498 S.W.2d 107:

“ ‘Every homicide is presumed to be malicious in the absence of circumstances rebutting this implied presumption. Harper v. State, 206 Tenn. 509, 334 S.W.2d 933; Gann v. State, 214 Tenn. 711, 383 S.W.2d 32.
“ ‘Killing with a deadly weapon raises a presumption of malice sufficient to justify a finding of murder in the second degree, in the absence of facts or circumstances rebutting that presumption. Nance v. State, 210 Tenn. 328, 358 S.W.2d 327; Gann v. State, supra; Bostick v. State, 210 Tenn. 620, 360 S.W.2d 472; Smith v. State, 212 Tenn. 510, 370 S.W.2d 543.
“ ‘In such cases the burden is upon the State to establish that the killing constituted murder in the first degree, if such is charged, and the defendant has the burden of showing mitigating facts and circumstances sufficient to reduce the degree of the homicide below second degree murder. So it is that malice is an essential ingredient of murder in the second degree. Harper v. State, supra; Smith v. State, supra. If one person, upon a sudden impulse of passion, without adequate provocation, and disconnected with any previously formed design to kill, kills another willfully and maliciously, such killing is unlawful and is murder in the second degree. Malice is not necessarily confined to an intention to take the life of the deceased, but includes an intention to do any unlawful act which may probably result in depriving the party of life. It is not so much spite or malevolence to the individual in particular as an evil design in general, the dictates of a wicked and depraved and malignant heart. It may be either express or implied in law. Warren v. State, 44 Tenn. 130. See also: 1 Wharton’s Criminal Law & Procedure (Anderson), § 63.
“ ‘Of course it is fundamental that the jurors are the sole and only judges of the evidence, and of the weight to be given to the swearing of each and every witness in the case. The credibility of the witnesses, the weight and value of their testimony, the inferences to be drawn from their statements, and all factual issues raised by the testimony and evidence introduced — direct and circumstantial, are matters entrusted exclusively to the jury as the triers of the facts. Humphrey v. State, 187 Tenn. 377, 215 S.W.2d 791; Cole v. State, 187 Tenn. 459, 215 S.W.2d 824; Steele v. State, 189 Tenn. 424, 225 S.W.2d 260; Smith v. State, 205 Tenn. 502, 327 S.W.2d 308; Hardin v. State, 210 Tenn. 116, 355 S.W.2d 105. Thus, the jury has the duty and prerogative in homicide cases of determining the question of malice and whether or not the defendant proved facts or circumstances sufficient to rebut the presumption of malice arising from the fact of the killing. Gray v. State, 63 Tenn. 331.’ ”

See also: Fox v. State, 1 Tenn.Cr.App. 308, 441 S.W.2d 491; Gordon v. State (Tenn.Cr.App.), 478 S.W.2d 911; Bailey v. State (Tenn.Cr.App.), 479 S.W.2d 829; Bunch v. State, 3 Tenn.Cr.App. 481, 463 S.W.2d 956; Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863.

The contention urged upon us by the defendant in his second Assignment of Error is that he was an illiterate and immature juvenile when arrested and that he was denied his constitutional right of due process of law when officers interrogated him without permitting his parents or a juvenile officer or an attorney to be with him, and that the inculpatory custodial statements were obtained illegally and were involuntary and inadmissible. We cannot agree. As already noted, when the deputy sheriff arrived at the Grimes home and saw Steve Brewer dead in the yard and asked the defendant and his brother Sidney, who were standing on the porch, which one of them shot the deceased the defendant replied that he did. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process, when the investigation has not progressed beyond general inquiry, is not forbidden and statements made in those circumstances are admissible. Tate v. State, 219 Tenn. 698, 413 S.W.2d 366; State v. Morris, 224 Tenn. 437, 456 S.W.2d 840; Ballard v. State, 2 Tenn.Cr. App. 431, 454 S.W.2d 193; Gordon v. State, supra; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

As further noted, the deputy sheriff then advised the defendant fully concerning his constitutional rights as required by Miranda, supra, and a TBI agent repeated that advice at the jail, in both instances before any custodial interrogation of the defendant was undertaken. After the deputy advised the defendant of his rights at the scene, he said he would get the gun and led the way into the house and turned it over to this officer and told him what had happened. At the jail when the TBI agent advised him about his rights, the defendant told him the deputy sheriff had already advised him of his rights, and then proceeded to give the TBI agent the statement above indicated.

We have also indicated that, at the conclusion of a hearing apart from the jury, the trial judge found and held that the defendant was fully advised of his rights in accordance with Miranda, supra, and that the officers did not take any undue advantage of him and he knew what he was doing, and overruled defense objections and held his custodial statements were admissible.

The trial court’s determination with reference to compliance with the Miranda mandate by the investigating officers and as to the voluntariness of statements made by the defendant during custodial interrogation, is conclusive on appeal unless the appellate court finds that the evidence touching those matters preponderates against the trial judge’s findings. Upon appeal, the defendant has the burden of showing that the evidence preponderated against such a finding by the trial judge. Briggs v. State (Tenn.Cr.App.), 501 S.W.2d 831 and cases therein cited; Mitchell v. State, 3 Tenn.Cr.App. 494, 464 S.W.2d 307.

Although it does not appear that the defendant did expressly waive his constitutional rights when advised concerning them, this Court has held that a waiver may be inferred from the facts of the case and that proof of an affirmative statement by the defendant to that effect is not essential. Briggs v. State, supra; McGee v. State, 2 Tenn.Cr.App. 100, 451 S.W.2d 709; Bowling v. State, 3 Tenn.Cr.App. 176, 458 S.W.2d 639; Mays v. State (Tenn.Cr.App.), 495 S.W.2d 833.

The voluntariness and admissibility of a juvenile’s confession is not dependent upon the presence of his parents or attorneys at the interrogation when there has been a full Miranda warning given and understood. O’Neil v. State, 2 Tenn.Cr.App. 518, 455 S.W.2d 597; Vaughn v. State, 3 Tenn.Cr.App. 54, 456 S.W.2d 879. A juvenile’s confession or admission voluntarily given to police authorities after being fully warned and advised concerning his constitutional rights is admissible at his trial. And this is true even though his confession or admission is made before he is taken before a juvenile court. Mitchell v. State, supra; O’Neil v. State, supra.

Upon this record we cannot say that the evidence preponderates against the finding of the trial court, or that it was error to admit the custodial statements of the defendant in evidence before the jury. Accordingly, we must overrule his Assignment complaining about admission of those statements.

But beyond that, the defendant related the details of the killing and the attendant facts in his direct testimony. And this brings into operation the firmly established rule of law that where a defendant takes the witness stand in his own behalf and admits the substance of extra-judicial statements made to officers, admission of those statements is not prejudicial. Owens v. State, 202 Tenn. 679, 308 S.W.2d 423; McClain v. State, 1 Tenn.Cr.App. 499, 445 S.W.2d 942.

The defendant is confronted by the rule of law that alleged error in the admission of evidence is cured if the accused elicits and develops, or testifies on direct examination concerning, the same subject matter. Snowball v. State (Tenn.Cr.App.), 477 S.W.2d 240; Lester v. State, 216 Tenn. 615, 624, 393 S.W.2d 288, 292; Batchelor v. State, 213 Tenn. 649, 378 S.W.2d 751. In Lester, our Supreme Court said:

“There are many cases in this jurisdiction and others which deal with the broad principle that if a defendant testifies in substance as to evidence which has been otherwise erroneously admitted, then his testimony clears whatever error there might have been. See Zachary v. State, 144 Tenn. 623, 234 S.W. 758; Moon v. State, 146 Tenn. 319, 242 S.W. 39; Switzer v. State, 213 Tenn. 671, 378 S.W.2d 760; Owens v. State, 202 Tenn. 679, 308 S.W.2d 423; Cathey v. State, 191 Tenn. 617, 235 S.W.2d 601; and others. Thus, these cases clearly show that the rule is not limited to the situation where the defendant takes the stand and admits he committed the crime with which he was charged.”

We turn now to the defendant’s first Assignment complaining about the juvenile court proceedings. The homicide occurred shortly after 12:00 a. m. on May 4, 1973. In the record we find a Xerox copy of each of the following documents: (1) a petition filed in the juvenile court by deputy sheriff Clarence Hamilton, who was the first officer on the scene and who arrested the defendant and took him to the county jail, reciting that he was a juvenile 17 years of age and charged with murder, (2) a juvenile court summons issued on May 4, 1973 requiring the defendant to appear before that court on 8 May 1973 at 9:00 a. m. to answer the petition, and showing a return signed by Deputy Hamilton showing that on the same day the summons was served on the defendant and a copy of the petition was delivered to him, and (3) the juvenile judge’s order made on 8 May 1973, following a hearing upon the petition, directing that the defendant be held for prosecution and sentencing as an adult in the Circuit Court of Marion County pursuant to TCA § 37-234. The murder indictment was returned against the defendant by the grand jury on June 4, 1973. He was tried and convicted on October 26, 1973.

The defendant’s only complaint about the juvenile court proceedings, voiced first in a motion to dismiss filed on 24 October 1973 and repeated in his new trial motion and here, is that the juvenile court did not keep minutes of the proceedings as required by TCA § 37-224.

In the first place, no imperfection or defect whatever appears on the face of the indictment. Hence, the motion to dismiss it, equivalent to a motion to quash, was ill-advised and untenable. Cook v. State (Tenn.Cr.App.), 506 S.W.2d 955. Secondly, the motion was only a pleading and constituted no proof of the statement therein that minutes of the proceeding were not kept by the juvenile court. The law is settled that, nothing else appearing, a pleading is not evidence of the facts or matters averred. Evers v. Hollman, 196 Tenn. 364, 268 S.W.2d 97; Feder v. Flattau, 205 Tenn. 111, 325 S.W.2d 555. As the trial judge stated in overruling that motion presented the day of the defendant’s trial, there was no proof that minutes were not kept by the juvenile court. Moreover, as the trial court correctly stated while considering the motion, the defendant could have appealed to the Circuit Court if dissatisfied with the judgment of the juvenile court. TCA § 37-258. Finally, the defendant has pointed out no way in which he was prejudiced by the alleged failure of the juvenile court to keep minutes of its proceedings in his case, and upon this record we do not perceive any.

The defendant concedes that his third Assignment with reference to the court’s charge is unfounded.

Affirmed.

WALKER, P. J., and O’BRIEN, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    R. L. BOWLING et al., Petitioners, v. The CITY OF EL PASO, Respondent.
    No. B-5525.
    Supreme Court of Texas.
    Oct. 22, 1975.
    Rehearing Denied Dec. 10, 1975.
    Warren Burnett, Associated, Richard J. Clarkson, Odessa, Collins, Langford & Pine, John A. Langford and Charles E. Vinson, El Paso, for petitioners.
    Peticolas, Luscombe, Stephens & Windle, Harry Lee Hudspeth, El Paso, for respondent.
   PER CURIAM.

This is a suit by the City of El Paso to have declared void and to rescind a 1972 exchange of city owned lands for lands owned by R. L. Bowling and others who were named as defendants in the trial court. The City alleged noncompliance with Art. 5421c-12, Tex.Rev.Civ.Stat.Ann., grossly inadequate consideration, and an unconstitutional donation of public property.

At the close of all the evidence the trial court withdrew the case from the jury and granted the City’s motion for an instructed verdict based on the application of Art. 5421c-12. The court of civil appeals affirmed the trial court’s judgment that the deed of the City be nullified, cancelled, set aside and declared wholly void and that the deeds of the other parties to the transaction likewise be voided. The court of civil appeals’ holding was based upon failure by the City of El Paso to publish notice of the land transfer as required by Art. 5421c-12. 525 S.W.2d 539.

While approving the judgment of court of civil appeals, we reserve the question whether a failure to comply with these statutory notice requirements renders such a transfer void or voidable.

The applications for writs of error are refused, no reversible error.


author: SAM D. JOHNSON, Justice. DANIEL, Justice

text:
    Ruby Lee Nelson DEVEROEX, Guardian of Edwin H. Nelson, a minor, Petitioner, v. Zan A. NELSON and the Estate of Cain H. Nelson, Jr., Deceased, Respondent.
    No. B-5102.
    Supreme Court of Texas.
    Oct. 29, 1975.

      Funderburk, Powell & Gibson, George Red and William R. Powell, Jr., Houston, for petitioner.
    Foster, Bratton & Golden, Thomas B. Foster, Jr. and B. Jeff Bratton, James P. Wallace, Bert E. Derden, Houston, for respondent.
   SAM D. JOHNSON, Justice.

This is an heirship proceeding arising from an allegation of adoption by estoppel. At stake are the proceeds of four life insurance policies issued on the life of the father. The claimants of these proceeds are the guardian for the estate of the decedent’s natural son, petitioner here, and the allegedly adoptive son, respondent. The trial court rendered judgment on a jury verdict that an adoption by estoppel had occurred and that the adoptive son would share the proceeds of the life insurance policies equally with the natural son. The court of civil appeals reformed the trial court judgment to reflect that the adoptive son would receive the entire proceeds of one of the insurance policies and, as reformed, affirmed. 517 S.W.2d 658. We affirm the judgment of the court of civil appeals.

In 1950 Cain H. Nelson, Jr., while serving in the United States Navy, met Helen A. Whitehead. At that time, Helen already had a four-year-old son named Zan, who was born out of wedlock. Cain and Helen were married in 1952 while still in Virginia. After living in Virginia for approximately one year following the marriage, the family moved to Houston where a natural son, Edwin H. Nelson, was born in 1959.

Testimony at the trial and the jury’s answers to special issues established that Helen agreed to marry Cain and move to Houston with him after his discharge from the Navy on the condition that he would adopt Zan. The jury found that Cain verbally agreed to adopt Zan. The jury also found that after the marriage Zan was treated as the adopted son of Cain, although formal adoption proceedings were never instituted.

In 1967 Helen Nelson murdered Cain who died intestate. Helen was convicted and sentenced to a term in the Texas Department of Corrections. She has disclaimed any interest in the subject matter of this case.

Cain Nelson was covered by four life insurance policies, all four designating Helen as the primary beneficiary. The first two policies, written by Prudential Insurance Company of America, were for the sum of $18,769.51 and named “Zan Nelson, stepson of the insured and all children born of the marriage of the insured and said wife” as contingent beneficiaries. The third policy, written by Metropolitan Life Insurance Company, was for $14,000 and provided that the child or children of the deceased were contingent or secondary beneficiaries. The fourth policy, written by First Financial Life Insurance Company, was for $7,863.38 and named Zan, whose relationship on the application was said to be “son,” the sole contingent beneficiary.

After Cain’s death an administration for his estate was filed in the probate court of Harris County. In that proceeding Zan filed an application for determination of heirship, claiming to be the adoptive son of Cain by estoppel. The probate court sustained Zan’s claim. Ruby Lee Nelson Dev-eroex, guardian of the estate of the natural son, Edwin, appealed that matter to the district court.

The three life insurance companies which had issued the policies on Cain’s life filed interpleader suits in the district court which were subsequently consolidated with the matter being appealed from the probate court. After trial to a jury, the trial court entered judgment on the verdict that Zan Nelson was the adopted son of Cain Nelson; that Zan Nelson and Edwin H. Nelson were the only heirs of Cain Nelson; that all life insurance proceeds were to be divided equally between Zan and Edwin; and that all court costs, including an ad litem attorney’s fee for the unknown heirs of Cain Nelson, were to be taxed against the guardian of the estate of Edwin Nelson.

The guardian of the estate of the natural son appealed to the court of civil appeals. That court reformed the trial court judgment as it related to the insurance proceeds ($7,863.38) from the First Financial Life Insurance Company policy by awarding all of the proceeds from this policy to Zan and, as reformed, affirmed. In affirming, the court of civil appeals held that the evidence supported the jury finding that the requisites of an adoption by estoppel were present; that the doctrine of adoption by estoppel was applicable even though the agreement to adopt was entered in Virginia, a jurisdiction that does not recognize the doctrine; and that the assignment of error of the guardian regarding the taxing of costs was overly broad and thus ineffective to preserve the point for appeal. We agree with the holdings of the court of civil appeals on these aspects of the case.

This writ was granted to consider the effect of Texas Insurance Code Annotated, Article 21.23 (hereinafter cited by article only), on the disposition of insurance proceeds when a contingent beneficiary has been named in the insurance policy. Article 21.23 states:

“The interest of a beneficiary in a life insurance policy or contract heretofore or hereafter issued shall be forfeited when the beneficiary is the principal or an accomplice in willfully bringing about the death of the insured. When such is the ease, the nearest relative of the insured shall receive said insurance.”

At issue are the proceeds from the First Financial Life Insurance Company policy which named Zan, whose relationship on the application was said to be “son,” as the sole contingent beneficiary. The trial court awarded the proceeds of such policy to Zan and Edwin to be shared equally, apparently construing Article 21.23 to mean that the “nearest relative” receives the insurance proceeds if the primary beneficiary is precluded, by killing the insured, from receiving the proceeds. The court of civil appeals, modifying the trial court judgment, held that Zan is entitled to the entire proceeds of the First Financial policy as sole contingent beneficiary under the policy, notwithstanding Article 21.23.

Petitioner, the guardian of Edwin’s estate, contends that the court of civil appeals erred in holding that the proceeds of the First Financial policy should be distributed to Zan as the sole contingent beneficiary rather than to Cain’s nearest relative pursuant to Article 21.23. Petitioner further contends that Zan, the allegedly adopted child, is not a nearest relative of Cain within the meaning of Article 21.23. We do not reach the latter contention because we agree with the court of civil appeals.

Petitioner relies on Drane v. Jefferson Standard Life Ins. Co., 139 Tex. 101, 161 S.W.2d 1057 (1942), for the proposition that the contingent beneficiary possesses no rights in the insurance proceeds while the primary beneficiary is living. Thus, petitioner argues that Zan obtained no rights in the First Financial policy proceeds because Helen was alive. Petitioner’s reliance on Drane is misplaced. In Drane the primary beneficiary was alive and eligible to receive a monthly payment from the insurance proceeds. The contingent beneficiary sought an adjudication that he would receive the monthly payment, if any were left, after the primary beneficiary’s death. The court held that such a judgment would be premature because the primary beneficiary was still alive and because the contingency might never arise. Unlike the Drane case, the instant case concerns a primary beneficiary who is ineligible to receive the insurance proceeds and the question presented is to whom should such proceeds be distributed. An adjudication of the contingent beneficiary’s rights in the instant case is not premature.

Petitioner also argues that Zan has no right to the insurance proceeds under a strict reading of the policy terms. The First Financial policy provides that the proceeds should be paid to the primary beneficiary, “if living,” otherwise to the contingent beneficiary. Petitioner concludes that Zan’s right to the proceeds did not vest because Helen, the primary beneficiary, was still alive. A similar question was considered in Williams v. Williams, 262 S.W.2d 111 (Tex.Civ.App. — Galveston 1953, no writ). In that case the insurance policy provided that the contingent beneficiary (the insured’s son) would receive the proceeds if the primary beneficiary (the insured’s wife) was not living. The insured and his wife were thereafter divorced. The insured’s ex-wife, the primary beneficiary, was held to be disqualified to receive the insurance proceeds because she lacked the required insurable interest. Since the insured’s ex-wife was still alive, the question arose whether the proceeds should pass to the insured’s son, who was the contingent beneficiary, or to the estate of the insured. The court, looking to the intent of the insured, held that the proceeds should pass to the insured’s son. We prefer the rationale of the Williams decision which effectuates the intent of the insured.

The application of Article 21.23 is considerably more difficult. We are persuaded, however, by the reasoning of the court of civil appeals that “[t]he language of section 21.23 does not suggest the intention of the legislature to forfeit the right of a guiltless named beneficiary.” 517 S.W.2d 658 at 664. Such construction not only effectuates the obvious intent of the insured, which he evidenced by designating a contingent beneficiary, but also effectuates the essential legislative objective of Article 21.-23, to provide for the exclusion from the policy proceeds of an individual who is a principal or an accomplice in bringing about the death of an insured. The legislative purpose in writing the second sentence of Article 21.23 was merely to exclude the insurance proceeds from the insured’s estate and thereby prevent the murderer from receiving such proceeds as an heir of the decedent’s estate. Greer v. Franklin Life Ins. Co., 148 Tex. 166, 221 S.W.2d 857 (1949).

Accordingly, we would distribute the insurance proceeds to the nearest relative of the insured under Article 21.23 only if all of the beneficiaries, primary and contingent, are disqualified from receiving such proceeds. Since Zan is not disqualified, we hold that the proceeds of the First Financial policy should be distributed to him rather than to Cain’s nearest relative pursuant to Article 21.23.

The judgment of the court of civil appeals is affirmed.

DANIEL, J., dissents in an opinion in which DENTON, J., joins.

DANIEL, Justice

(dissenting).

I disagree with that part of the Court’s opinion which permits Zan Nelson, the adopted son of the insured, to recover all of the proceeds of the First Financial policy as a secondary beneficiary instead of sharing the proceeds equally with Edwin Nelson, the insured’s natural son, as nearest relatives of the insured in accordance with Article 21.23 of the Texas Insurance Code.

The holding is contrary to the plain words of both the insurance policy and the statute. The insurance contract provides that the secondary beneficiary shall receive the proceeds only if the primary beneficiary (Helen Nelson) is not living. However, Helen Nelson is still living. The policy is silent as to who shall take thereunder if the primary beneficiary is living but disqualified because she wilfully killed her insured husband. Article 21.23, however, contains a specific provision for payment of insurance proceeds under such circumstances. It reads:

The interest of a beneficiary in a life insurance policy or contract heretofore or hereafter issued shall be forfeited when the beneficiary is the principal or an accomplice in willfully bringing about the death of the insured. When such is the case, the nearest relative of the insured shall receive said insurance.

The above article is as much a part of the insurance contract as if it had been incorporated in the policy. Camden Fire Ins. Ass’n v. Harold E. Clayton & Co., 117 Tex. 414, 6 S.W.2d 1029 (1928). The rights of parties to contract with respect to insurance are limited by state laws which are a part of every contract. Scanlan v. Home Ins. Co., 79 S.W.2d 186 (Tex.Civ.App., 1935, writ ref.); Hamaker v. American States Ins. Co. of Texas, 493 S.W.2d 893 (Tex.Civ.App., 1973, writ ref. n. r. e.).

In the absence of a statute to the contrary, one Texas decision cited by the majority and several from other states have permitted recovery by a secondary beneficiary while a disqualified primary beneficiary was still living. 27 A.L.R.3d 794, 835-837. None of these cases involved a statute such as Article 21.23, and I have found no decision, and none has been cited, in which a court has heretofore permitted insurance proceeds to go either to a secondary beneficiary or to the insured’s estate when a statute directs payment to the nearest relatives.

Two Texas cases have dealt with Article 21.23 and applied its terms when contrary to those in the insurance policies. In Greer v. Franklin Life Ins. Co., 148 Tex. 166, 221 S.W.2d 857 (1949), this Court related some of the history of the statute; held that it did not violate the constitutional provision forbidding “corruption of blood or forfeiture of estate” as the result of a criminal conviction; and decided that insurance proceeds should go to the insured’s next of kin rather than to the named beneficiary who wilfully killed the insured.

In Farmers & Merchants State Bank v. Helton, 278 S.W.2d 352 (Tex.Civ.App., 1954, writ ref. n. r. e.), the policy provided that if the beneficiary was not living the proceeds would vest in the insured’s estate. The beneficiary having wilfully killed the insured, the Court applied Article 21.23, holding that the nearest relatives of the deceased would be the only ones entitled to receive the proceeds of the insurance policy and that the creditors of the deceased’s estate would have no claim thereto.

The Supreme Court of Wyoming considered a statute similar to Article 21.23 in Dowdell v. Bell, 477 P.2d 170 (Wyo.1970), wherein it was held that the plain language of the forfeiture statute controls over language contained in an insurance policy and that the proceeds would therefore be payable to the persons designated by the statute rather than the contingent beneficiary named in the policy.

The Helton and Dowdell decisions are not mentioned in the majority opinion or the opinion of the Court of Civil Appeals. I think they are well reasoned and should be followed here instead of attempting to find what the intent of the insured would have been if he had known his wife was going to kill him.

DENTON, J., joins in this dissent.

      . The First Financial Insurance Company’s policy provides that the company “guarantees to pay to the designated Beneficiary as shown in the above Schedule of Insurance, if living, otherwise to the Contingent Beneficiary, if any, or subsequently designated

      . Williams v. Williams, 262 S.W.2d 111 (Tex.Civ.App., 1953, no writ).


author: ROBERTS, Judge.

text:
    Kenneth Rode HOGAN, Appellant, v. The STATE of Texas, Appellee.
    No. 49936.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1975.
    Rehearing Denied Dec. 3, 1975.
    Marvin 0. Teague and Bob W. Robertson (Both on appeal only), Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and Ronald Young, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant was convicted by a jury of burglary under our former Code. At the hearing on punishment, the trial court found appellant to be a second offender and assessed his punishment at twelve years.

The record reflects that on October 30, 1972, Houston police officers B. J. Foster and J. L. Baker received a general call on their police radio that a break-in was in progress at 835 Tulane. They went to that address and found a man sitting in an automobile in the driveway of the residence there. They arrested the man, and presently Baker arrested another man who ran out the front door of the house.

Foster went to the back of the house, saw that the back door had been broken open, and entered the house where he discovered the appellant and one other individual “going through dresser drawers and carrying stuff to the door and placing it by the door.” Foster testified that when he first observed the appellant, appellant was wearing gloves and had a screwdriver in his pocket and “property in his hand.” Foster then placed the two men under arrest.

The complainant, Demetre Balahopolo, testified that he lived at the house at 835 Tulane on the date in question and that he never gave the appellant permission to go into the house. He further testified that he never gave such permission to anyone except his daughter.

The appellant took the stand and admitted his presence in the house but insisted that one of his companions directed him there. He stated that he did not intend to burglarize the premises and did not know that any of his companions intended to do so. He testified that when the group first arrived at the house he stayed in the car for fifteen or twenty minutes, and only then went into the house, where he saw two of his companions and “realized what was going on.” He then attempted to leave the house but was apprehended by Foster before he could do so. The appellant denied wearing gloves or possessing a screwdriver at the time of his apprehension. No other witnesses testified for the appellant.

By his grounds of error numbered one through seven (a), appellant contends that the evidence is insufficient to prove lack of consent. Specifically, he urges that the State was obliged to prove that appellant did not receive consent from or through the complainant’s unnamed daughter.

In Fletcher v. State, 396 S.W.2d 393, 395-396 (Tex.Cr.App.1965), this Court responded to a similar contention:

“Having proved want of consent of the owner and occupant of the building as alleged in the indictment, the state was not required to allege or prove want of consent of any other party claimed to have authority to give consent to the breaking and entry of the building, this being purely a matter of defense. [Citations omitted]”

See also Espinosa v. State, 463 S.W.2d 8 (Tex.Cr.App.1971); 4 Branch’s Ann.P.C. (2d Ed.) Sec. 2536, p. 864. No error is shown.

In his remaining grounds appellant challenges the sufficiency of the evidence to support the enhancement allegation in the indictment. He initially contends that at the first punishment hearing the State failed to show that the conviction used for enhancement was final. He then contends that there was no showing at the second punishment hearing that the appellant was the same person who was found guilty at the guilt-innocence stage of the trial. This latter showing was necessary, according to appellant, because a different judge presided at the second punishment hearing.

The record reflects that after appellant was found guilty the court found that he had been previously convicted of burglary as alleged in the indictment and set his punishment at twelve years. Art. 62, V.A. P.C. This finding was based upon a penitentiary packet and a fingerprint comparison by a qualified fingerprint expert. See Richardson v. State, 432 S.W.2d 100 (Tex.Cr.App.1968).

Briefs were filed pursuant to Article 40.-09, V.A.C.C.P., and the trial court, after considering the briefs and the record, ordered a new hearing on punishment, “[i]t appearing to the Court that there was an insufficiency of proof as to the finality of the prior convictions [sic] alleged for enhancement.” The record reflects that the penitentiary packet introduced at the first punishment hearing did not contain a sentence. See White v. State, 171 Tex.Cr.R. 683, 353 S.W.2d 229 (1962).

At this second hearing the State again introduced the testimony of a qualified fingerprint expert and an authenticated penitentiary packet, which contained all of the requisite papers. Richardson v. State, supra. The court again found the enhancement allegation to be true and assessed punishment at twelve years.

It was proper for the court to hold a second punishment hearing, since upon an appeal this Court would have remanded for punishment alone. White v. State, supra; Marrero v. State, 500 S.W.2d 818 (Tex.Cr.App.1973). See Gonzales v. State, 527 S.W.2d 540 (Tex.Cr.App.1975). See also Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975).

It is not improper for a different judge to sit at the punishment hearing. Art. 1916, Vernon’s Ann.Civ.St.; Lavallas v. State, 444 S.W.2d 931 (Tex.Cr.App.1969). This is true, absent an abuse of discretion, even if an objection is made. Joines v. State, 482 S.W.2d 205 (Tex.Cr.App.1972); see also Balderas v. State, 497 S.W.2d 298 (Tex.Cr.App.1973).

Nor can appellant be heard to complain that he was not identified at the second hearing as the person convicted at the guilt-innocence stage of the trial. At the beginning of the hearing the trial judge called the name of the person charged in the indictment, and appellant’s attorney answered, “Yes Your Honor. He’s present.” The court then announced the correct cause number. At no time did appellant object on the ground he now urges. Any error was waived.

The judgment is affirmed.

      . The Honorable Clarence M. Ferguson, judge of the 77th Judicial District, presiding.

        . The Honorable Miron A. Love, presiding.


author: ODOM, Judge.

text:
    Felix V. CARVAJAL, Appellant, v. The STATE of Texas, Appellee.
    Nos. 50156, 50157.
    Court of Criminal Appeals of Texas.
    Nov. 12, 1975.

      M. M. Pena, Jr., San Antonio, (Court appointed), for appellant.
    Ted Butler, Dist. Atty., and Lucien Campbell, Keith W. Burris, Donald A. Clowe and Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

In No. 50,156 appellant was convicted of possession of marihuana. In No. 50,157 he was convicted of aggravated assault with a deadly weapon. Punishment was enhanced in each cause under V.T.C.A.Penal Code, Sec. 12.42(d), to life imprisonment.

The record reflects that police officers under the authority of a search warrant entered and searched a motel room where the appellant and two others were present. When the officers entered the room, appellant ran into the bathroom with two of the officers in pursuit. He pulled a gun from his pants and pointed it at one of the officers, but during the ensuing struggle the gun fell to the floor and appellant was subdued.

In the first ground of error, appellant complains that the trial court erred in overruling his motion to suppress the marihuana found in the motel room. He contends that the search warrant that authorized the entry and search was invalid. The relevant portion of the affidavit presented to the magistrate in support of the warrant states as follows:

“Affiant did on the 6th day of January, 1974, receive information from a reliable and credible person, whose credibility has been established by lack of any criminal record, and the fact that he enjoys a good reputation among his associates and in the community, that he, the said reliable and credible person, did on the 6th day of January, 1974, see a controlled substance, to-wit: Marijuana, unlawfully possessed by the aforesaid White male, approximately 40 years of age, 5' 10" tall, medium build, black hair, red faced, whose name is not known, at the above described premises.”

In determining the sufficiency of the affidavit to support a search warrant, we are of course bound by the four corners thereof. Art. I, Sec. 9, Tex.Const.; Art. 18.01, V.A.C.C.P.; Abercrombie and Dean v. State, Tex.Cr.App., 528 S.W.2d 578 (1975) (Opinion on State’s Motion for Rehearing); Cook v. State, Tex.Cr.App., 497 S.W.2d 295.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court established a two-prong test for the validity of a search warrant on an affidavit founded upon hearsay information, like the warrant in the instant case. The magistrate must be informed first “of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were” and, second, of “some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed was ‘credible’ or his information ‘reliable.’ ” 378 U.S. at 114, 84 S.Ct. at 1514.

Here, the sufficiency of the affidavit to satisfy the first part of the Aguilar test is not contested. The informant stated that he actually saw marihuana in the motel room.

The ground of error focuses upon the second prong of the Aguilar test. The affidavit furnished the magistrate with three circumstances from which the magistrate could conclude that the informant was credible and his information reliable: (1) the informant had no criminal record; (2) he enjoyed “a good reputation among his associates and [(3)] in the community.”

An affidavit for a search warrant should be read as a whole in a common sense and realistic manner. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Caution should be exercised in comparing the details provided in one affidavit with those of another, lest judicial consideration of whether important, constitutionally protected interests have been violated becomes an arid and mechanistic exercise.

Nevertheless, we have reviewed the cases in this area of the law, focusing upon Caldarera v. State, Tex.Cr.App., 504 S.W.2d 914; Cook v. State, Tex.Cr.App., 497 S.W.2d 295; Wetherby v. State, Tex.Cr.App., 482 S.W.2d 852; Adair v. State, Tex.Cr.App., 482 S.W2d 247; and Yantis v. State, Tex.Cr.App., 476 S.W.2d 24. It is apparent that the affidavit in the instant case states fewer underlying circumstances than those stated in the affidavits found sufficient in Cook, Wetherby, and Yantis. On the other hand, it provides more information than the supporting affidavit held invalid in Caldar-era. In that case, the affidavit stated only that the informant had no criminal record. Here, the affidavit contains, in addition to that statement, an averment of good reputation.

Let us, then, compare the affidavit in the instant case with that held sufficient in Adair v. State, supra. The relevant portion of the affidavit there stated as follows:

“[Although the informant has not given information in the past, their [sic] reliability, and credibility has been established by the fact of their [sic] lack of criminal record, the reputation in the neighborhood, and are [sic] well thought of by their [sic] fellow associates.”

We reiterate our suggestion in Adair, 482 S.W.2d at 253 n. 2, and our statement in Caldarera, 504 S.W.2d at 916, that the affidavit upheld in Adair “met the minimal requirement.” (Emphasis added.)

A comparison of both affidavits reveals that the content of the affidavit in Adair in support of the second Aguilar requirement approximates the content of the affidavit here, except that in Adair it was additionally stated that the informant had never previously given information to the police. Does the statement import any more than admirable candor on the part of the police? We hold that it does not and moreover conclude that the statement was given no weight whatsoever in Adair in our determination that the warrant was valid. Conced-edly, the statement also necessarily implies that the informant has never given false information in the past. But we believe that an affidavit averring such a fact furnishes no more usable information to the magistrate insofar as his determination of reliability of the present information is concerned than an affidavit that is wholly silent on the matter.

Accordingly, the affidavit in the instant case is substantially identical to that upheld in Adair. The first ground of error is overruled.

In the second ground of error, appellant contends that the evidence is insufficient to sustain the conviction for possession of marihuana. It is true that where the accused is not in exclusive control of the premises, the State is bound to show additional independent facts and circumstances that affirmatively connect him to contraband. Such facts must be sufficient to show both knowledge and control of the marihuana. Bentley v. State, Tex.Cr.App., 520 S.W.2d 390; Barnes v. State, Tex.Cr. App., 504 S.W.2d 450; Wright v. State, Tex.Cr.App., 500 S.W.2d 170.

Here, there were at least four such circumstances:

(1) Thirty-seven pounds of marihuana were found on the floor of the motel room.

(2) Appellant fled into the bathroom when the officers announced their purpose and effected entry into the room. Although flight is not sufficient alone to support a conviction, it is a circumstance that raises an inference of guilt. Mitchell v. State, Tex.Cr.App., 517 S.W.2d 282; Vera v. State, Tex.Cr.App., 499 S.W.2d 168; Machado v. State, Tex.Cr.App., 494 S.W.2d 859.

(3) A key to the room was found in the appellant’s pants pocket.

(4) About one-half gram of loose marihuana was found in the pocket of appellant’s coat, a discovery that also indicates guilt of the offense charged. Powell v. State, Tex.Cr.App., 502 S.W.2d 705. The combination of all the above evidence was sufficient to support the conviction. The second ground of error is overruled.

The third ground of error challenges the sufficiency of the evidence to support the conviction for aggravated assault with a deadly weapon. Appellant argues that because his gun was loaded but not cocked and because it could not be fired before it was cocked, the gun was not a “deadly weapon” within the meaning of V.T.C.A.Penal Code, Sec. 22.02(a)(3). This contention is without merit. V.T.C.A.Penal Code, Sec. 1.07(a)(ll)(A), specifically provides:

“(11) ‘Deadly weapon’ means:
(A) a firearm. . . . ”

The evidence, which showed that appellant used a loaded gun intentionally and knowingly to threaten a police officer with imminent bodily harm, was sufficient to support the conviction. The ground of error is overruled.

In the fourth ground of error, appellant complains that the trial court erred in using the same two prior felony convictions to enhance his punishment in each cause, under the authority of V.T.C.A.Penal Code, Sec. 12.42(d), to confinement for life.

Under Article 63 of the old Penal Code, using the same two prior convictions to enhance punishment more than once is clearly error. That procedure was condemned in Kinney v. State, 45 Tex.Cr.R. 500, 70 S.W. 570, decided in 1904. See also the cases collected at 1 Branch’s Ann.P.C. (2d ed.), sec. 698. Cf. Mayo v. State, 166 Tex.Cr.R. 470, 314 S.W.2d 834; Mooring v. State, 158 Tex.Cr.R. 434, 256 S.W.2d 97; and Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93.

The trial judge recognized this fact and the State in its brief upon appeal concedes that the procedure employed would be error under prior law. The State contends, however, that Sec. 12.42(d) of the new Penal Code should be construed differently from the old Art. 63. The State relies largely on the opinion on Motion for Rehearing in Brown v. State, 150 Tex.Cr.R. 386, 196 S.W.2d 819, 821.

Although Brown criticized the reasoning in Kinney, supra, the ultimate reason for affirming and following the rule remains valid. That reason was that “Inasmuch as the articles on the subject have been re-enacted by the legislature with a knowledge of the judicial construction given same, we would not at this time, under the general rule of construction, be justified in overruling the Kinney case and those which have followed it.” Brown v. State, supra, at 821.

The language of Sec. 12.42(d) is similar to that of Art. 63. Thus, the Practice Commentary states as follows:

“Subsection (d) preserves prior Article 63 And presumably, in the context of this and the following section, the old rules regulating use of prior convictions for enhancement will also apply. See e. g., Mayo v. State, 166 Tex.Cr.R. 470, 314 S.W.2d 834 (1957); Kinney v. State, 79 S.W. 570 (Cr.App.1904).”

The State contends that the failure of the Legislature to prohibit the repeated use of the same prior convictions to enhance punishment manifests an intent that Kinney and its progeny be abandoned. It strikes us that the omission of any significant additional or different language in Sec. 12.42(d) cuts quite the other way. The Legislature was aware of the venerable Kinney rule, now seventy years old. The Legislature’s silence on the question of multiple use for enhancement purposes of prior convictions must evidence a lack of dissatisfaction with established judicial construction of the statutes. A comparison of V.T.C.A.Penal Code, Sec. 1.05(a), and the old Art. 7 does not dissuade us from the soundness of this conclusion.

Accordingly, the two prior convictions were properly used to enhance punishment in the conviction for possession of marihuana in No. 50,156. The same convictions should not have been used to enhance punishment in the conviction for assault with a deadly weapon in No. 50,157. Therefore, the latter cause must be remanded for proper assessment of punishment under V.T.C. A.Penal Code, Sec. 12.34.

Appellant has filed a pro se brief in this Court after submission of the case. Most of the points he argues are raised and fully discussed in his counsel’s brief. He does assert one new ground of error: that the trial court erred in overruling his pretrial motion to disclose the identity of the informant in violation of his federally protected constitutional rights. The issue has been examined in the interest of justice. Art. 40.09(13), V.A.C.C.P. The record reflects that the informant’s involvement and knowledge of this case did not even remotely approach that of the informants in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) or James v. State, Tex.Cr.App., 493 S.W.2d 201. The contention is without merit.

The judgment in No. 50,156 is affirmed.

The punishment in No. 50,157 having been assessed by the court, the judgment of conviction is affirmed and the cause is remanded for assessment of punishment in compliance with our holding herein. It is so ordered.

DOUGLAS, J., not participating.


text:
    Charles Dennis EASLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 50288.
    Court of Criminal Appeals of Texas.
    Nov. 12, 1975.

      Milton E. Douglass, Jr., Wichita Falls, for appellant.
    Joe Max Shelton, City Atty. and Dan McMulty, Asst. City Atty., Sherman, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for murder with malice. Trial was before a jury and the jury assessed punishment at one hundred (ICO) years’ imprisonment. The offense occurred on April 1, 1970 and appellant’s first conviction for this offense was reversed by this Court on March 14, 1973. Easley v. State, Tex.Cr.App., 493 S.W.2d 199. This appeal is from the conviction which resulted from appellant’s second trial, which commenced on March 18, 1974, following a change of venue.

Appellant challenges the sufficiency of the evidence to support this conviction. Since we have determined that relief must be accorded on this ground, a detailed discussion of the evidence follows.

At the time of her death, Laurie Stevens was in the fifth grade at Lamar Elementary School in Denison. At 3:30 p. m. on April 1, 1970, she left school on foot, never to be seen alive again. After an extensive search, her body was found three days later lying face down in a ditch fifteen (15) feet from Randell Road in a rural part of Gray-son County. Except for her shoes and socks, she was nude and she had been shot six times. Five .22 calibre slugs were recovered from the victim’s body and a sixth was found in the dirt underneath the body. No spent cartridge casings were found at the site, and it could not be determined whether the murder weapon was a rifle or pistol, revolver or automatic.

Suspicion focused on the appellant and he was arrested on an unrelated charge of theft of gasoline on April 8, 1970. At the time of his arrest, appellant was driving a brown Pontiac. A .22 calibre six-shooter pistol was found on appellant’s person, along with two boxes of .22 calibre shells.

Much of the testimony at trial concerned appellant’s presence in the victim’s neighborhood in the weeks prior to her death. Bennie Akers testified that he saw appellant driving a red 1968 Chevrolet with a dented right front fender in deceased’s neighborhood about two to three weeks before her disappearance. About a week pri- or to that, he and Charles Kelly saw the same car involved in a collision in the neighborhood. On the morning of deceased’s disappearance, appellant was seen in the red car asking directions to Travis Street of two boys in the neighborhood, Roy Lee Ak-ers and Donnel Kelly. Kelly also testified that he would see appellant at least once a day three to four weeks prior to April 1, driving in deceased’s neighborhood, but never on a Saturday or Sunday. Annie Mae Akers stated that she saw appellant pushing a motorcycle down the alley behind her house on three occasions “something like” “fairly close” to two weeks prior to April 1. On two occasions prior to April 1, Douglas Childs saw appellant in his red car near Lamar Elementary School. Deputy Sheriff Gene Lambert testified that appellant’s house was 1.3 and 1.5 miles from the school and the victim’s house, respectively.

After appellant’s arrest, a search of his house was conducted by Grayson County authorities. Appellant had lived with his parents at 2407 Travis Street but the family had moved in late March, 1970. Investigation revealed numerous bullet holes, bullets, and shell casings around a shed at the back of the property, indicating someone had been doing a lot of target practice while the Easleys lived there. Officer Lambert found about six boxes (approximately 300 shells) of .22 calibre hulls in the area. It was not possible to determine if the shooting had been done with a rifle or a revolver.

Ballistics experts Roger Sedbury of the Texas Department of Public Safety and Charles M. Hoffman of the Treasury Department’s Bureau of Alcohol, Tobacco and Firearms testified at length at the trial. Sedbury said that the slugs recovered from the victim’s body could not be matched to the pistol recovered from appellant at the time of his arrest. He testified that the tests were inconclusive. Hoffman echoed Sedbury’s conclusions. When finally asked, “But was there enough similarity to produce a conclusion that it could have been the weapon?” he stated, “I don’t feel any determination could have been made, sir, as to whether it was or not.”

Hoffman went on, however, to relate the results of some chemical comparison tests he performed on the slugs found in the body, those recovered from appellant at the time of his arrest, and those found at the house on Travis Street. These tests reveal differences in the chemical composition and trace metals of bullets from different manufacturers, and even between different “batches” of bullets made by the same manufacturer. On the basis of these tests, he was able to form no opinion about the bullets found on appellant’s person, but he was able to conclude that there was a “high probability” that two of the bullets recovered at the Travis Street house came from the same batch as those found in the victim’s body.

Hoffman also testified that he had attempted to compare samples of soil from the fender of the red Chevrolet, and hair, leaves, paper and debris vacuumed from within the car with samples of soil, blood, and leaves from the Randell Road ditch and hair and clothing from the victim’s body. He stated that absolutely no conclusive comparisons could be made between these items.

Two witnesses suggested appellant may have been in the area where the body was found at the time of the victim’s disappearance. Jack Harris testified that he observed appellant driving on Randell Road about 6:00 p. m. on April 1, in a red Chevrolet with a dented front fender. At 7:45 a. m. the next day, Deputy Sheriff Billy Purdom observed the same car traveling south on Highway 75A. The license number, JTW 499, indicated that the car was registered to appellant’s brother, James. Purdom noted this car some distance south of the intersection of Highway 75A and Randell Road, but he would not have been able to determine if the car had turned off Randell Road. As for the driver of the red Chevrolet, Purdom testified that it “possibly could be” appellant, and that he looked “similar” to appellant at the time of his arrest six days later, although he (Purdom) did not observe the driver that closely.

It will be noted that this conviction is based on circumstantial evidence. The test for evaluating the sufficiency of the evidence to uphold such a conviction was stated in Indo v. State, 502 S.W.2d 166 (Tex.Cr.App.1973) as follows:

“This Court has long adhered to the rule that a conviction on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused, and proof amounting to only a strong suspicion or mere probability is insufficient. Flores v. State, 489 S.W.2d 901, 902 (Tex.Cr.App.1973) and cases therein cited.”

See also 24 Tex.Jur.2d, Evidence, Secs. 729 and 742, pp. 403 and 422; and Greer v. State, 437 S.W.2d 558 (Tex.Cr.App.1969).

The facts adduced in the case at bar cast barely more than a reasonable suspicion upon the appellant, and fall far short of showing his guilt to a moral certainty. The sum total of all the incriminating, facts consisted only of (1) appellant’s suspicious presence around the victim’s neighborhood in the weeks prior to the killing, (2) a chemical similarity between the bullets removed from the deceased’s body and two of the bullets found on the premises where appellant’s family had lived, and (3) one eyewitness identification of appellant and one eyewitness identification of his car on the roads in the vicinity of the scene of the crime shortly after the victim’s disappearance. Contrast these facts with the inconclusive ballistics tests, the absence of a chemical similarity between the bullets found on appellant’s person and those removed from deceased’s body, the inconsistency of the debris recovered from appellant’s automobile and that recovered from the scene of the crime, and the absence of any ballistic or chemical similarities between the vast majority of the bullets found at the Travis Street house and any of the other bullets involved in the case. Nor is the sighting of appellant or his car in the Randell Road vicinity of much significance, in view of the amount of activity in the area and the fact that, at one time, he was seen only on a U. S. Highway. Far from excluding all other reasonable hypotheses except the appellant’s guilt, the evidence adduced leaves it possible for anyone to have committed this crime, at least anyone who may have fired two bullets on the back of the Easley property during the period of their residency there.

Creel v. State, 493 S.W.2d 814 (Tex.Cr.App.1973) involved a murder similar to that in the case at bar, although the evidence there was held sufficient to support the conviction. Creel was charged with abducting a ten-year-old girl as she walked home from school, raping and strangling her, and depositing her body in a culvert in rural Taylor County, where it was found the next day. As in the instant case, witnesses reported seeing Creel near the victim’s home and school. In contrast to this case, however, Creel was reported to have asked some of the victim’s classmates about her on the very day of her disappearance. In addition, another witness told of seeing Creel’s car parked with what appeared to be a man and a young girl in the front seat. More witnesses placed Creel from one to one and a half miles from the culvert three hours after the girl’s disappearance. One witness even testified to seeing the victim’s coat on the front seat of Creel’s car as he was parked by the side of a road a mile from the culvert where the girl’s body was found. In addition, blood samples, haygrazer (a feeding substance), dog hair, and semen all connected defendant to the body of the deceased child. It will be seen that Creel involved a very thorough prosecution, and that the evidence in the instant case falls far short of that found sufficient to support the conviction in Creel.

This evidence raises a strong suspicion that the appellant is guilty. This Court has the duty, however, of insuring that no one is convicted of a crime except upon proof beyond a reasonable doubt and, in a circumstantial evidence case, upon proof excluding all other hypotheses except appellant’s guilt. For the failure of the evidence to meet the required burden of proof, the judgment is reversed and the cause remanded.

DOUGLAS, J., not participating.


author: DAVIS, Commissioner.

text:
    Jose ARMENDARIZ, Appellant, v. The STATE of Texas, Appellee.
    No. 50508.
    Court of Criminal Appeals of Texas.
    Nov. 12, 1975.

      Jay L. Nye, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., John P. Bradford, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of heroin. Punishment, enhanced under the provisions of V.T.C.A. Penal Code, Sec. 12.42(d), was assessed at life.

The indictment alleged the primary offense occurred on or about April 6, 1974, and the record reflects that trial was in October, 1974.

Appellant contends that V.T.C.A. Penal Code, Sec. 12.42(d) “is being selectively applied by the District Attorney’s Office of El Paso County, Texas, by using unjustifiable standards, arbitrary classifications which result in intentional and purposeful discrimination, thus depriving Appellant of his right to equal protection and due process under the law.”

V.T.C.A. Penal Code, Sec. 12.42(d) provides:

“If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.”

Appellant made a motion to quash the indictment, and at a hearing out of the presence of the jury testimony was elicited from the prosecutor that where pen papers were not available a defendant is normally indicted for the primary offense. If pen papers are subsequently obtained and a disposition of the case has not been made, “the normal procedure will be if there is to be a trial that the man be re-indicted as a habitual.” It was further developed in the instant case that plea bargaining on the original indictment charging the primary offense had broken down and appellant was re-indicted as an habitual. The district attorney stated that the time in obtaining pen papers varies and “many times the State is forced to trial by an alert defense attorney prior to the time that the pen papers are available and therefore prior convictions cannot be alleged in the indictment because they cannot be proved.” Appellant points to the testimony of the prosecutor relative to four cases where individuals, who had prior convictions, were not indicted under the appropriate habitual statute (since 1972).

The burden of showing intentional and purposeful discrimination in application of the law against an individual to prove denial of due process is a heavy one.

In Super X Drugs of Texas, Inc. v. State, 505 S.W.2d 333 (Tex.Civ.App., Houston, 1974, no writ history), it was stated:

“More must be shown than mere unequal application of a state statute to prove a violation of the equal protection clause of the fourteenth amendment to the United States Constitution. It is not sufficient to show only that the law is enforced against some and not others. There must be a showing of actual and purposeful discrimination against the individual himself or against a suspect classification in which he falls (such as wealth, religion, or race), with no proper justifying governmental purpose in such classification. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Moss v. Hornig, 314 F.2d 89 (2nd Cir. 1963).”

Many cases are collated under Art. 63, V.A.P.C., the forerunner of the present statute, which reflect that the State often encounters insurmountable problems in proving prior convictions under the habitual statutes. In addition, defects in prior convictions, such as the absence of counsel to represent an indigent defendant, often render prior convictions unusable. These factors would appear to further complicate the problem of showing “actual and purposeful discrimination.”

We are not persuaded by appellant’s additional argument that 12.42(d), supra, permits the arbitrary infliction of cruel and unusual punishment with no standards or guidelines and is thereby violative of the Eighth and Fourteenth Amendments of the United States Constitution under the United States Supreme Court holding in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.

In Thrash v. State, Tex.Cr.App., 500 S.W.2d 834, this Court quoted from Cherry v. State, Tex.Cr.App., 447 S.W.2d 154, where it was stated:

“The enhanced penalty statutes have been held valid against all constitutional attack. 1 Branch’s Ann.P.C., 2nd ed., Sec. 698, p. 681. See also Mackie v. State, Tex.Cr.App., 367 S.W.2d 697; Young v. State, 170 Tex.Cr.R. 498, 341 S.W.2d 911; Spencer v. State, Tex.Cr.App., 389 S.W.2d 304; Ex parte Reyes, Tex.Cr.App., 383 S.W.2d 804. We cannot agree with appellant that such statutes constitute cruel and unusual punishment or result in double jeopardy in violation of state and federal constitutional provisions. See Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, 611 and cases there cited.”

We find that the evidence does not support appellant’s contention that 12.42(d), supra, is being applied in such a manner as to result in “intentional and purposeful discrimination.” See Resendez v. State, Tex. Cr.App., 523 S.W.2d 700.

Appellant contends “the correction of the charge and recharge of the jury by the Trial Court, over defense counsel’s objection, constituted a comment on the weight of the evidence and argument of defense counsel resulting in the erroneous conviction of Appellant.”

The indictment alleging the prior conviction of possession of paraphernalia for using narcotic drugs recited that the conviction occurred on May 13, 1963, in the District Court of El Paso County in Cause No. 19,637, without reciting the number of the District Court. In the court’s charge at the punishment stage of the trial, it was required that the jury find that the appellant was convicted in such cause “in the 34th Judicial District Court of El Paso County. . ” Appellant in his argument to the jury pointed out that it was not proven that appellant was convicted of the prior offense in question in the 34th District Court. At the conclusion of appellant’s argument, the jury was retired and the court advised counsel that he was going to delete “34th” from the charge. Appellant objected to such corrected charge as “telling the jury that the defense counsel’s argument was totally wrong” and moved for a mistrial. When the jury returned, the court advised the jury that there was a clerical error in the charge and pointed to the deletion of “34th” and reread that portion of the charge to the jury leaving out “34th.” The court allowed appellant to reopen argument and the record reflects that appellant availed himself of such offer.

While appellant voiced an oral objection to the corrected charge, no written objection was made as required by Art. 36.14, V.A.C.C.P. McClennon v. State, Tex. Cr.App., 492 S.W.2d 524. Objections to the court’s charge do not preserve error unless timely made in writing.

The judgment is affirmed.

ODOM, J., concurs in result.

DOUGLAS, J., not participating.

      . Art. 63, V.A.P.C. provided:
      “Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.”


author: GREEN, Commissioner.

text:
    H. H. TRAMMEL et al., Appellants, v. The STATE of Texas, Appellee.
    No. 50753.
    Court of Criminal Appeals of Texas.
    Nov. 12, 1975.
    See also, Tex.Cr.App., 529 S.W.2d 530.

      Richard C. Jenkins, Dallas, for appellants.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This appeal is from a final bond forfeiture judgment, in which the sureties H. H. Trammel and Joe Cypert are appellants.

The appeal presents the question of whether the bond can be forfeited when the principal is placed on misdemeanor probation and violates the probationary condition to pay a fine.

The record reflects that on March 9,1973, the principal in the appearance bond, Anita Duckworth Fogle, was charged by information in the County Criminal Court No. 3 of Dallas County with the misdemeanor offense of driving a motor vehicle while intoxicated. She was released on a surety bond which is not involved in this appeal. This bond was subsequently forfeited for her nonappearanee in court and on July 18, 1973, she was released on executing the bond in question in the penal sum of $200.00 with appellants as sureties. The bond was conditioned that the defendant-principal Fogle appear to answer the charge against her and “for any and all subsequent proceedings had relative to the charge, until discharged by course of law.”

On October 12, 1973, defendant Fogle plead guilty and was convicted of the charge against her. Punishment was assessed at 30 days confinement, probated, and a fine of $100.00. The term of the probation of the jail sentence was extended for one year to October 12, 1974, and the fine and court costs were ordered to be paid not later than November 21, 1973. The sum of $60 was paid on the fine by defendant Fogle on the day of the judgment. No motion for new trial was filed, and no notice of appeal was given.

The balance of the fine and the court costs had not been paid by January 28,1975, and on that date judgment nisi was entered on the bond against the principal and sureties due to the failure of defendant Fogle to appear in court. Notice was duly served on appellants, and on May 16, 1975, after a hearing, the trial court made the judgment final in the penal sum of $200.00.

In their second ground of error, appellants contend that the court erred in forfeiting the bond because no condition of the bond had been breached. We agree. See McConathy v. State, 528 S.W.2d 594 (1975).

In McConathy, supra (our Cause No. 50,574), the surety bond was forfeited because of the failure of the defendant-principal, who had been assessed a jail term, probated, and a fine, to pay the fine and court costs. The Court, in reversing the judgment, cited Articles 17.01 and 17.02, V.A.C.C.P., and said:

“The prime object or purpose of bail is to secure the presence of an accused upon trial of an accusation against him. It is not a revenue measure intended to be a substitution for a fine, but is intended to secure the trial of the alleged offender rather than turn his securities or those of his bondsman into a penalty. Grantham v. State, 408 S.W.2d 235 (Tex.Cr.App.1966), and cases there cited.
“Article 17.09, Vernon’s Ann.C.C.P., provides that a bail bond for the appearance of a defendant ‘shall be valid and binding upon the defendant and his sureties, if any, thereon, for the defendant’s personal appearance before the court or magistrate designated therein, as well as before any other court to which same may be transferred, and for any and all subsequent proceedings had relative to the charge, . . . .’
* ⅝: * * * *
“The term ‘subsequent proceedings had relative to the charge’ is not defined in the statute, and there is not much deci-sional law on the same. . . . While there may be other subsequent proceedings had relative to the charge, we cannot conclude that the proceedings utilized by the court in the instant cases were such subsequent proceedings had relative to the charge as contemplated by the statute.
⅜ * * * * *
“In Cause No. 50,574, the defendant Alvarado was placed on probation. Unlike the McCallum case (McCallum v. State, 411 S.W.2d 361), Alvarado did not file a motion for new trial, nor did he give notice of appeal. When he did not pay his fine and court costs as required by the condition of probation, no motion to revoke probation was filed, but the court set the case on the docket and when Alvarado failed to appear, the original appearance bond was forfeited. Again we conclude that this was not a ‘subsequent proceeding had relative to the charge,’ and the court was unauthorized to forfeit the bond under these circumstances.”

For the reasons stated in McConathy, supra, the court was not authorized to forfeit the bond in the instant case.

In view of the disposition we make of the appeal, it is not necessary that we discuss the remaining grounds of ei’ror.

The judgment is reversed, and the cause is remanded.

Opinion approved by the Court.

DOUGLAS, J., not participating.


author: BROWN, Commissioner.

text:
    H. H. TRAMMEL et al., Appellants, v. The STATE of Texas, Appellee.
    No. 50752.
    Court of Criminal Appeals of Texas.
    Nov. 12, 1975.

      Richard C. Jenkins, Dallas, for appellants.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a final bond forfeiture judgment, in which the sureties H. H. Trammel and Joe Cypert are appellants.

The appeal presents the question of whether the bond can be forfeited when the principal is placed on misdemeanor probation and violates the probationary condition to pay a fine. This is the identical question decided in Trammel v. State, Tex.Cr.App., 529 S.W.2d 528 (1975), in which the forfeiture judgment was reversed. In this case, however, the facts are even more unfavorable to the validity of the judgment. The principal, Wilton Bellot, pleaded guilty to the offense of distributing obscene matter on October 4,1973. He was assessed 6 months and a $300.00 fine and costs, which was probated for 6 months, and was ordered to pay the fine and costs on or before November 3, 1973. The principal paid the costs in October 1973 but did not pay the fine. The probationary term expired on April 4, 1974 without a motion to revoke probation having been filed. A judgment nisi was entered January 28,1975 more than nine months after the probationary term had expired. Obviously, the court was not authorized to forfeit the bond in the instant case. Trammel v. State, supra; McConathy v. State, 528 S.W.2d 594 (1975).

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, J., not participating.


text:
    Ex parte Oscar Derwood DUEITT.
    No. 51234.
    Court of Criminal Appeals of Texas.
    Nov. 12, 1975.
    Rehearing Denied Nov. 26, 1975.

      Dan B. Gerson, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a habeas corpus action instituted by petitioner in the 174th District Court of Harris County for the purpose of obtaining a bail reduction. The record reveals that petitioner was arrested and charged with two illegal sales of heroin. Harris County Justice of the Peace Laurence Wayne originally reduced petitioner’s bail from $20,000 to $2,500 in cause number 232,679 and from $40,000 to $7,500 in cause number 232,678. After his release on bail totaling $10,000 petitioner was indicted and the district court reset his bail at the original figures totaling $60,000. Petitioner has been unable to secure his release on the $60,000 bail.

Consideration of this question is guided by Art. 17.15, V.A.C.C.P., which makes it clear that the question of bail is a matter within the trial court’s sound discretion. Art. 17.15 specifies the following guidelines for fixing the amount of bail.

“1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
“2. The power to require bail is not to be so used as to make it an instrument of oppression.
“3. The nature of the offense and the circumstances under which it was committed are to be considered.
“4. The ability to make bail is to be regarded, and proof may be taken upon this point.”

Petitioner is 23 years old, married, and the father of a three year old daughter. He stands indicted for two offenses of delivery of a controlled substance, to-wit: heroin. Punishment for either offense is confinement in the penitentiary for life or any period not less than five (5) nor more than ninety-nine (99) years. The record does not contain any of the circumstances of the two alleged offenses. It does reveal, however, that petitioner has lived his entire life in Harris County and has never before been convicted of a felony. Petitioner’s employer testified that he could have his job back if he won release on bail. No witness expressed the slightest worry that petitioner might skip bail.

Although not controlling, the accused’s ability or inability to make bail is also relevant. Ex parte Redline, Tex.Cr.App., 529 S.W.2d 68 (delivered October 22, 1975). The record is not well developed in this respect but it is clear that the court reduced petitioner’s bail from $60,000 to $40,000 at the conclusion of the habeas corpus hearing. Although there has been no showing of an effort on petitioner’s part to make the reduced bail, see Roberts v. State, 467 S.W.2d 475 (Tex.Cr.App.1971), we will not require him to do a “useless thing.” Ex parte Skinner, 496 S.W.2d 633 (Tex.Cr.App.1973). The record contains evidence suggesting that the funds of petitioner and his family were exhausted in obtaining his release on the original $10,000 bail. Although it is admitted that no one has contacted a professional bondsman on the possibility of obtaining petitioner’s release on a surety bond, both his employer and his father-in-law indicated a financial inability to do so. Although the record is far from clear on this point, it is reasonable to conclude that the difficulties petitioner and his family encountered in securing his release on $10,-000 bail would be increased four-fold in attempting to meet even the reduced $40,-000 bail.

The amount of the bail should also be high enough to insure the performance of the obligation. It is clear that $10,000 bail is sufficient in this respect. The record reveals that petitioner was originally released on $10,000 bail. He nevertheless appeared in court to answer to the indictments when he knew that the grand jury had recommended resetting his bail at $60,-000. As expected, he was returned to custody where he still remains.

Considering the nature and circumstances of the offense, petitioner’s difficulty in raising sufficient bail money, and his past performance on a considerably lower bail obligation, we conclude that $60,000 bail is excessive. Ex parte Guess, 508 S.W.2d 640 (Tex.Cr.App.1974) involved similar offenses, a similar absence of prior criminal offenses, and an identical bail of $60,-000. This Court held that bail excessive under those facts. Likewise we hold that petitioner’s bail is excessive and, in view of his demonstrated ability to make $10,000 bail, order reduction of the bail to that original figure.

Bail in cause number 232,678 is set at $7,500 and in cause number 232,679 at $2,500.

It is so ordered.

MORRISON, J., dissents to the amount of reduction.

DOUGLAS, J., not participating.

      . The practice of the grand jury recommending the amount of bail finds no support in the statutes and is-not a commendable practice.


author: MORRISON, Judge.

text:
    Leland Boyce LEWIS, Appellant, v. The STATE of Texas, Appellee.
    No. 50190.
    Court of Criminal Appeals of Texas.
    Nov. 19, 1975.

      John E. Rapier, Randolph Scott and Malcolm Dade, Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Hagler, John Ovard and Robert Whaley, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is conspiracy to commit arson under Article 1622, V.A.P.C.; the punishment, five years.

The State’s case was that two men had been hired by the appellant to burn down a certain building belonging to a business competitor. Police officers were informed of the plan and intervened in time to prevent the fire. One of the arsonists was killed.

Appellant did not testify and called no witnesses, other than to recall one of the officers who had testified for the State.

We are met at the outset with a question of improper jury argument at the guilt stage of the trial. There were two prosecutors and two defense counsel involved in the trial. Prosecutor Whaley argued, “John Ovard [the other prosecutor] and I have taken a solemn oath to God to seek justice. You judge whether or not we have done it. No such oath bears on either one of these attorneys [defense counsel].” (Emphasis added)

After the court had sustained appellant’s objection, the prosecutor continued, “All right. I would ask you to believe this: If, assuming this man is guilty, do they [defense counsel] want the truth in here before you?”

When defense counsel objected and stated that they were officers of the court under the same obligation, Whaley replied, “That is not so, Your Honor.”

We do not find this argument to be in response to the defense counsel’s reference to the trial as an adversary proceeding. The effect of this argument was to instruct the jury that only the prosecutors seek to uphold truth and justice, 'whereas defense counsel have a license to use any means at their command to mislead the jury.

As in Bray v. State, Tex.Cr.App., 478 S.W.2d 89, this argument was not invited by appellant’s counsel, and when he objected and attempted to state his reasons, he was interrupted by the prosecutor. In Bray, we cited the Canons of Ethics, State Bar Rules, and reversed the conviction because the argument was striking at the appellant over the shoulders of his counsel and stated that instructions to disregard would not have removed the prejudice. See also Edmiston v. State, Tex.Cr.App., 520 S.W.2d 386, and Boyde v. State, Tex.Cr.App., 513 S.W.2d 588.

In the event of a retrial, we note that the admission of a tape recording and a transcription of a conversation between appellant and Stanley Ray Senters was reversible error because the same contained inadmissible extraneous offenses. Senters had voluntarily entered into an agreement with law enforcement officers to go to appellant’s place of business and engage in conversation while wearing a microphone on his person.

At the trial, Senters testified to the conversation; then the tape was played for the jury and copies of the transcription were given to each juror over objection of defense counsel.

Putting aside any question of bolstering, under our holding in Thrush v. State, Tex. Cr.App., 515 S.W.2d 122, any extraneous offenses mentioned in taped conversations were not admissible unless they related directly to the transaction then on trial or became admissible to rebut a defensive theory. See also Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97. The conversations in the case at bar, in addition to discussions of the arson involved in this prosecution, contained references to the following which did not relate to the arson and were extremely harmful:

1. A statement by the appellant that on another occasion he had cut off the ear of a woman and then forced her husband to swallow it.

2. A statement that appellant’s father was in the mining business and that appellant had worked with explosives and knew how to place the same and later fly over the place and detonate the explosives by remote control.

3. A statement that the appellant had in the past “shot” a man in the rectum with a fire extinguisher which caused the man to vomit and lose 30 pounds in weight.

Appellant did not take the stand or offer any defensive theory. Therefore, admission of these extraneous offenses was improper. Wilbourn v. State, Tex.Cr.App., 524 S.W.2d 306. See also 23 Tex.Jur.2d, Evidence, Sec. 194, p. 294.

In view of our disposition of the foregoing grounds of error, we find it unnecessary to discuss the many other grounds asserted.

For the errors pointed out, the judgment is reversed and the cause remanded,

DOUGLAS, J., not participating,

      . We do not approve the State’s offer of its transcribed version of the taped conversation. After all, the tape itself was simply corroborative of Senters’ testimony. Technical imperfections in the reproduction of the conversation did not authorize the State to submit its version in written form and thereby make the written transcript available to the jury during its deliberations. Art. 36.25, V.A.C.C.P. This was, in essence, bolstering Senters’ version of the conversation. Newton v. State, 147 Tex.Cr.R. 400, 180 S.W.2d 946; 62 Tex.Jur.2d, Witnesses, Section 238, p. 186.