author:
ODOM, Judge.
      PHILLIPS, Judge,

text:
    Curtis Wayne ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 52702.
    Court of Criminal Appeals of Texas.
    June 14, 1977.
    Rehearing Denied July 6, 1977.

      Charles M. Beacham, San Antonio, for appellant.
    Ted Butler, Dist. Atty., E. Dickinson Ry-man and Susan D. Reed, 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.

This is an appeal from a conviction for the offense of burglary of a habitation. Punishment was assessed at 20 years’ imprisonment.

Appellant challenges the sufficiency of the evidence and the validity of his arrest.

San Antonio Police Officer Edward Bo-urque testified that he and Sgt. Trinidad responded to a “burglars-in-action” call at the Three Dollar Motel about midnight, July 22,1975. While the officers were talking to the manager of the motel, they noticed a white Buick automobile enter the motel parking lot at about 12:15 a.m. The trunk of the vehicle was open and Bourque could plainly see a television set in the trunk of the car. The vehicle stopped adjacent to an apartment occupied by Huthspet Mimms.

Bourque testified that Mimms had a reputation as a known police character and a fence, or one who buys stolen property. Based upon this knowledge and the suspicious circumstances of a vehicle with a television set in the trunk during the early morning hours, the officers determined to investigate further.

The officers approached the vehicle and asked appellant, the driver, for identification. They inquired about the television set, and appellant stated that he and his friends had brought the television to the motel to sell to Mimms. He informed the officers that his mother had given him the television set.

After receiving this explanation, Bourque asked appellant for a physical description of the television, but appellant was not able to give any description that was “similar to the merchandise which was in the trunk.” The officers placed appellant and the two passengers under arrest for possession of stolen merchandise. Even though the record is not clear as to the chronological order of events, Bourque testified that he asked appellant if he could confirm with appellant’s mother the explanation of the possession of the television, to which appellant replied in the affirmative, “freely” giving the officer his phone number. Bourque called the number in question and a female answered, identified herself as appellant’s mother, and denied that she had ever given appellant a 23 or 24 inch console television set.

The officers took the three suspects to the police station, where another officer told them he had taken a report of a television that matched the one the officers had removed from appellant’s vehicle. Margie Mercado, the complainant in that report, was later taken to the police station for the purpose of identifying her allegedly stolen property.

Mercado testified at trial that on the evening of July 22, 1975, she left her home about 10:50 p.m. and when she returned about 11:45 p.m., she noticed that her home had been broken into. A 10-speed bicycle, a clock, and a television set. were missing. She reported the burglary and theft to the police, and later that day she was taken to the police station to make an identification of her property. She positively identified her 23 inch black and white console television.

The defense rested with the State without offering any evidence.

Appellant contends the officers did not have probable cause to arrest him and the warrantless arrest was not justified under Art. 14.03, V.A.C.C.P.

The initial detention did not put the officers in a position to “plain view” the television, see e. g., McDougald v. State, Tex.Cr.App., 547 S.W.2d 40 (1977), as the television was in open view from the time appellant drove into the motel parking lot. However, the decision to seize the television was made after the initial detention and subsequent investigation and after the appellant was placed under arrest. Although the television was not contraband per se, it was seized as the result of appellant’s arrest, thus we hold appellant does have standing to challenge the validity of his arrest. See Thompson v. State, Tex.Cr.App., 533 S.W.2d 825.

Circumstances which do not constitute probable cause for arrest may justify lesser intrusion upon the personal security, such as temporary detention for purposes of investigation. Leighton v. State, Tex.Cr.App., 544 S.W.2d 394; Hinson v. State, Tex.Cr.App., 547 S.W.2d 277 (1977). The detention is justified if the law enforcement officer has specific, articulable facts, when in light of his experience and general knowledge, together with rational inferences from those facts would reasonably warrant the intrusion on the freedom of the citizen stopped for further investigation. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Ablon v. State, Tex.Cr.App., 537 S.W.2d 267; Mann v. State, Tex.Cr.App., 525 S.W.2d 174; Hernandez v. State, Tex.Cr.App., 523 S.W.2d 410.

It is appellant’s position that the act of driving into the parking lot of the motel with the television did not generate any undue suspicion or probable cause to arrest or search, even though this act occurred during the early morning hours, and that the police officers’ alleged knowledge of Huthspet Mimms being a fence was merely hearsay, and was not sufficiently reliable to invoke probable cause.

The officers were at the motel investigating a burglary call about 12:15 a.m. when they observed appellant’s automobile, with a television in the trunk, pull into the parking lot, drive to the rear of the location, and stop adjacent to the apartment of a known fence. The officers did not know at that time of the reported burglary at the Mercado home. Cf. Hernandez v. State, supra. However, the officers’ knowledge of Mimms’ criminal activities indicated to them the television may have been stolen property. We hold they had more than a mere suspicion or inarticulable hunch that criminal activity was occurring and the subsequent investigation into the suspicious circumstances in order to maintain the status quo and to prevent further consequences of a possible theft was justified. Thompson v. State, supra; Greer v. State, Tex.Cr.App., 544 S.W.2d 125; Hernandez v. State, supra. Cf. Leighton v. State, supra; McDougald v. State, supra; Hinson v. State, supra.

Even though appellant properly identified himself to the officers, he was unable to give a proper description of the television he possessed and he appeared nervous throughout the interview. Upon investigating appellant's explanation of his possession of the television, the officers received information from the alleged source of the property which indicated that appellant’s explanation was false. Under these circumstances, we find appellant’s arrest was justified under Art. 14.03, V.A.C.C.P. See Hunnicutt v. State, 531 S.W.2d 618; Thompson v. State, supra.

Appellant contends there was an insufficient predicate for admission of Officer Bourque’s testimony concerning his knowledge of Mimms’ alleged reputation of being a fence. Bourque testified that he based his knowledge of Mimms’ reputation on discussion with private citizens and known burglars who had done business with Mimms. This testimony sufficiently qualified him to testify as to Mimms’ reputation. See Frison v. State, Tex.Cr.App., 473 S.W.2d 479; Mitchell v. State, Tex.Cr.App., 524 S.W.2d 510; Ellis v. State, Tex.Cr.App., 543 S.W.2d 135.

The final contention is that the evidence is insufficient to support the conviction because the State failed to rebut appellant’s “reasonable explanation” of his possession of the television, given to the officers at the time of his arrest.

The record shows that appellant tendered his explanation to the officers when they challenged his possessory interest in the television. The record must demonstrate that the explanation is either false or unreasonable before the evidence to support the conviction will be deemed sufficient. Smith v. State, Tex.Cr.App., 518 S.W.2d 823; Callahan v. State, Tex.Cr.App., 502 S.W.2d 3; Huff v. State, Tex.Cr.App., 492 S.W.2d 532.

Whether the appellant’s explanation is reasonable is an issue to be determined by the trier of fact. Smith v. State, supra. And, the falsity of the explanation may be shown by circumstantial evidence. Callahan v. State, supra.

The trial court, as the trier of fact, was confronted with many circumstances indicating that the appellant’s explanation for his possession of the stolen property was both false and unreasonable. Compare, Huff v. State, supra. He was discovered just after midnight with recently stolen property. He was attempting, as stated in his explanation, to sell this property to a man known in the community as a “fence."

The trial court’s finding that the appellant’s explanation was unreasonable or false is supported by evidence.

The judgment is affirmed.

PHILLIPS, Judge,

dissenting.

I dissent to that portion of the majority opinion which holds the evidence is sufficient to support the conviction. There is no evidence of appellant's involvement in the burglary of the Mercado home. The State relies on the inference or the presumption of guilt that can be drawn from the circumstance alone of unexplained possession of recently stolen property. To warrant an inference of presumption of guilt, such possession must be personal, recent, unexplained, and must involve the distinct and conscious assertion of property rights by the accused. Randolph v. State, Tex.Cr.App., 505 S.W.2d 845; Smith v. State, Tex.Cr.App., 472 S.W.2d 121; 4 Branch’s Ann. P.C., 2nd Ed., Sec. 2537, pages 866-870; 5 Branch’s Ann. P.C., 2nd Ed., Sec. 2650, pages 96-98.

“The presumption or inference against the defendant arising from the fact of possession is rebutted by reasonable explanation, if not shown to be false, and necessitates further evidence of his guilt before a conviction is authorized. Thus where the State relies on possession alone to establish defendant’s guilt and no evidence is introduced to show that his explanation is false he is entitled to an acquittal.” 55 Tex.Jur.2d, Theft, Sec. 227, page 496 (1964).
“Where a defendant’s explanation is reasonable and is sufficient to rebut the circumstance of possession of property recently stolen, the evidence is insufficient to sustain the conviction if it fails to show that the explanation was false.” Huff v. State, Tex.Cr.App., 492 S.W.2d 532, 533.

Appellant did not testify. His explanation was put in evidence during the State’s case-in-chief when one of the arresting officers, Officer Bourque, testified on direct examination as follows:

“I asked the subject about the television that was in the back of the trunk and he stated that he and his friends had brought the television to the Three Dollar Motel and were going to sell this television to Huthspet, and he said that his mother had given him the television and he was low on money and planned on making the transaction to have some cash.”

Appellant, at the first opportunity, tendered his explanation to the officers when they challenged his possessory interest in the television. See Callahan v. State, Tex.Cr.App., 502 S.W.2d 3; Henderson v. State, 163 Tex.Cr.R. 153, 289 S.W.2d 274; Hermosillo v. State, 120 Tex.Cr.R. 605, 49 S.W.2d 798; 5 Branch’s Ann. P.C., 2nd Ed., Sec. 2651, pages 98 to 101.

“Evidence that a defendant had the personal possession of property recently stolen is not sufficient to sustain his conviction for the theft of that property if when he was first directly or circumstantially called upon to explain his possession of the property he made a reasonable explanation which is not refuted, showing his honest acquisition of the property.” Smith v. State, Tex.Cr.App., 518 S.W.2d 823, 824.

The presumption of guilt arising from appellant’s possession of the television was rebutted by appellant’s reasonable explanation and the circumstances did not show the explanation to be false.

There are no contradictions or weaknesses in the appellant’s explanation that would destroy it. Cf. Smith v. State, supra; Davidson v. State, 125 Tex.Cr.R. 518, 69 S.W.2d 97. Appellant’s explanation did not contain a statement that he or his mother owned the television. Cf. Windom v. State, Tex.Cr.App., 429 S.W.2d 488; Morgan v. State, Tex.Cr.App., 435 S.W.2d 862. Thus, proof of ownership of the television in the complaining witness did not show appellant’s explanation to be false.

Appellant promptly and accurately identified himself to the police officers upon demand, made no furtive gestures, and did not attempt to flee. Cf. Hubbard v. State, Tex.Cr.App., 490 S.W.2d 849; Bryant v. State, Tex.Cr.App., 397 S.W.2d 445; McCutcheon v. State, 143 S.W.2d 611. His admission that he intended to sell the television set to Mimms was immediately forthcoming, without any attempt to conceal the fact. Upon being asked for confirmation of his explanation, appellant immediately consented to such action by freely giving the officer his mother’s telephone number. At no time did appellant contradict the explanation given to the officers, cf. Morgan v. State, supra, nor was appellant in possession of other fruits of the burglary. See Reed v. State, Tex.Cr.App., 487 S.W.2d 78.

In Huff v. State, supra, involving a conviction for theft, the State proved the defendant was in possession of the stolen automobile and also proved his explanation, given at the time of the arrest, that he had purchased it. The evidence was held insufficient because the State neither refuted nor proved the falsity of the defendant’s explanation.

In Knott v. State, 87 Tex.Cr.R. 117, 219 S.W. 825, the defendant was convicted of theft of an automobile which was in his possession approximately two hours after the car was left on a city street by the owner. At the time of his arrest the following day the defendant told the officers that at 9:00 or 9:30 the night the car was taken the defendant saw some boys in possession of the car and the defendant ran the boys off and took possession of the car for the purpose of claiming a reward, if any. On cross examination the officer related a previous occasion on which the defendant had found a car and delivered it to a police officer. In holding the evidence insufficient to support the conviction, the Court noted the defendant’s explanation contained no contradiction or weaknesses which would destroy the explanation, and there were no facts or circumstances introduced to destroy the explanation, and the State did not meet its burden of proving the explanation was unreasonable or untrue.

It is apparent from the record that the period of time between the theft and appellant’s possession of the television could have been as long as one hour and thirty minutes. There is no evidence as to the proximity between the complaining witness’ home, the appellant’s mother’s home, and the Three Dollar Motel. There is no direct evidence of appellant’s participation in the burglary and theft of the complainant’s house. Thus, this case is distinguishable from Callahan v. State, supra, wherein the defendant and his companion were found in the rear of a burglarized store around 1:30 a.m. some eight to ten minutes after a burglar alarm had been set off. The defendant was in possession of bottles with the store’s tags on them and he told the police officers that complete strangers approached him and his companion in the early morning hours and paid them $10.00 to care for four half gallons of whiskey until 8:00 p.m. the next day, when they would again meet at the same store.

Dyba v. State, Tex.Cr.App., 549 S.W.2d 178, is also distinguishable. The defendant therein was arrested in the car that was observed as it left the location of the theft at night with its lights off until it was stopped. The defendant was found in the back seat of the car with the cylinder taken from the scene of the theft. The circumstances showed defendant’s explanation, that he found the cylinder on the side of the road, was untrue.

The majority opinion asserts the trial court was confronted with “many circumstances indicating that the appellant’s explanation for his possession of the stolen property was both false and unreasonable”. The operative circumstances, as stated by the majority, are: shortly after midnight appellant was found in possession of recently stolen property and appellant “was attempting, as stated in his explanation, to sell this property to a man known in the community as a ‘fence’.” None of these facts, singularly or taken together, refute appellant’s explanation as to his honest acquisition of the television from his mother. As noted earlier, appellant did not claim ownership of the television, thus proof that the set was recently stolen did not show appellant’s explanation was untrue. Although the arresting officer knew Mimms had a reputation in the community as a fence, there is no showing appellant knew of Mimms’ reputation. There is no evidence to show appellant was aware the television set was stolen or that he intended to possess stolen property. See Crain v. State, Tex.Cr.App., 529 S.W.2d 774; Pool v. State, Tex.Cr.App., 528 S.W.2d 255. Association with a known fence is not sufficient to prove appellant’s guilty knowledge. See Walker v. State, Tex.Cr.App., 539 S.W.2d 894; Gant v. State, Tex.Cr.App., 513 S.W.2d 52.

Unlike Callahan v. State, supra, the record shows this is an obviously weak circumstantial case. In Ysasaga v. State, Tex.Cr.App., 444 S.W.2d 305, 309, we quoted from 24 Tex.Jur.2d, Evidence, Sec. 745, p. 427, as follows:

“Where the circumstantial evidence relied on by the prosecution is obviously weak, and where the record on appeal affirmatively shows not only that other testimony which would have cast additional light on the facts was available to the prosecution, but also that the prosecution did not introduce such other evidence or satisfactorily account for its failure to do so, the appellate court will treat the case as one showing reasonable doubt of the sufficiency of the evidence to support the conviction.”

In the instant case, the State did not call appellant’s mother to testify, and did not offer an explanation for her absence. While Officer Bourque testified that he talked with a female who identified herself as appellant’s mother, testimony concerning the identity of this woman and the truthfulness of her statements was hearsay. Although hearsay is admissible on the issue of probable cause for arrest or search, hearsay is not admissible or probative to determine the sufficiency of the evidence. See Lumpkin v. State, Tex.Cr.App., 524 S.W.2d 302; Maden v. State, Tex.Cr.App., 542 S.W.2d 189; Hanna v. State, Tex.Cr.App., 546 S.W.2d 318.

The record shows other testimony which would have shown appellant’s explanation to be untrue was available and the State’s failure to produce this testimony renders the evidence insufficient to support the conviction.

In Powell v. State, 11 Tex.App. 401, the defendant was charged with theft of property belonging to a mercantile store. One of the owners testified that the property was taken without his consent. The stolen property was recovered from the defendant’s mother’s house. The defendant first denied any knowledge of the property in question and then told the arresting officer he had not stolen the goods, but had been given them for services rendered by a clerk employed at the store. The conviction was reversed for failure to call the clerk, who was shown to be available at the time of the trial, to rebut the defendant’s statement as to how he became possessed of the property.

The judgment should be reversed and the cause remanded.

ROBERTS, J., joins.

      . Appellant’s objection to any testimony concerning the telephone conversation between Bourque and the appellant’s mother was sustained on the grounds of hearsay. However, it should be noted that hearsay is admissible on the issue of probable cause to arrest or search. See U. S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Hutchinson v. State, Tex.Cr.App., 509 S.W.2d 598.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    James Edward BAKER, Appellant, v. The STATE of Texas, Appellee.
    No. 53183.
    Court of Criminal Appeals of Texas.
    June 14, 1977.
    Rehearing Denied July 13, 1977.

      Jerry M. Kolander, Jr., Lubbock, court appointed, for appellant.
    Alton R. Griffin, Dist. Atty., Sam Oat-man, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for forgery by passing. See Y.T.C.A., Penal Code, § 32.21(a)(1)(B). Punishment was assessed at life imprisonment after the jury had found the appellant guilty and that he had twice previously been convicted of felonies as alleged in the indictment.

In two grounds of error appellant contends the court erred in overruling his motion for instructed verdict because the State failed to show that: (1) he intended to defraud or harm anyone, or (2) he knew or had knowledge the instrument allegedly passed was forged.

The record reflects that on February 1, 1974 appellant entered a Serv-U-Food store in Lubbock and asked the checker, Marie Sargent, who was in charge of the store at the time, to cash a check for him, telling her it was “for his uncle.” Following normal procedures, Sargent asked for appellant’s driver’s license. He said he had none but displayed a photostatic copy of a social security card bearing number [ XXX-XX-XXXX ] that supposedly belonged to his uncle. The check, in the amount of $98.70, was drawn on the account of Mr. and Mrs. Billy L. Smith. It was signed “Mr. Billy L. Smith” and was payable to “James W. Jones.” Marie Sargent cashed the check, but as appellant was leaving she asked Ben Pastrano, a butcher at the store, to get the license number of the automobile appellant was driving. Pastrano found appellant standing by a car near the gasoline pumps of the store. As he wrote the license plate numbers of the car on a piece of paper, appellant asked him what he was doing. Pastra-no answered he was reading the gasoline pump meter. Appellant asked for the paper and attempted to take it away from Pastrano. The attempt failed and Pastrano returned to the store, where he gave the license number to Marie Sargent.

Billy L. Smith, a used car dealer, testified he maintained a joint checking account with his wife but that the writing on the check in question was not his nor had he authorized anyone to make out the check. He did not know a James A. Jones. He stated he had sold a car to the appellant at the end of December, 1973 or the first of January 1974. After February 1, 1974, when he received his statement from the bank, he discovered several unauthorized checks had been paid. On investigation, he discovered that nine checks were missing from back of his checkbook, which the record reflects was kept at his used car lot. Smith’s wife testified she did not sign the check nor give anyone permission to fill out the check. She did not know a James W. Jones.

The appellant did not testify nor offer any testimony.

In answer to appellant’s contention the evidence was insufficient to show an intent to defraud or harm, the State argues such is not an element of forgery under V.T.C.A., Penal Code, § 32.21, citing Aldridge v. State, 492 S.W.2d 477 (Tex.Cr.App.1973). Reliance upon Aldridge is misplaced for it dealt with a conviction for passing as true a forged instrument under Article 996 of the former Penal Code.

Under the former Penal Code, Article 979 defined the offense of forgery and required as an element an intent to injure or defraud. See Smith v. State, 162 Tex.Cr.R. 132, 282 S.W.2d 876 (1955); Rice v. State, 484 S.W.2d 589 (Tex.Cr.App.1972). The offense of passing as true a forged instrument under Article 996 of the former Code lacked this element, requiring a showing of only three elements, to-wit:

(1) a person must pass as true
(2) a forged instrument in writing
(3) knowing that it was forged at the time of the passing.

See Byrom v. State, 528 S.W.2d 224 (Tex.Cr.App.1975); Aldridge v. State, supra; Montogomery v. State, 157 Tex.Cr.R. 44, 246 S.W.2d 209 (1952).

With the adoption of the new Penal Code, effective January 1, 1974, Articles 979 and 996, as well as others, were combined into V.T.C.A., Penal Code, § 32.21, defining forgery, which provides in part:

“(a) For purposes of this section:
“(1) ‘Forge’ means:
“(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
“(i) to be the act of another who did not authorize that act;
“(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A) of this subdivision; or <<* * *
“(b) A person commits an offense if he forges a writing with intent to defraud or harm another. . .”

Under this current statute, the definition of forgery includes the act of passing as true a forged instrument and requires as an element of the offense an intent to defraud or harm. See Stuebgen v. State, 547 S.W.2d 29 (Tex.Cr.App.1977). The Practice Commentary to said § 32.21 notes:

“Section 32.21 consolidates a number of provisions of the old Penal Code covering forgery of different kinds of documents, e.g., Penal Code arts. 979 to 998 and 1006 to 1011 . . . The culpable mental state requirement of prior law — intent to defraud (Penal Code arts. 979, 984) — is carried forward, but an alternative intent to harm — has been added. Article 985 of the old Penal Code generally limited forgery to acts that injured a victim pecuni-arily or in relation to his property. By virtue of the definition of ‘harm’ in Section 1.07(16), Section 32.21 extends the offense to nonmonetary and nonproperty injuries. . . .”

Thus, it is clear that intent to defraud or harm is a necessary element of forgery under said § 32.21, and the burden is on the State to prove every element of the offense charged, Reed v. State, 533 S.W.2d 35 (Tex.Cr.App.1976), although scienter may be established by circumstantial evidence. Stuebgen v. State, supra; Watson v. State, 418 S.W.2d 822 (Tex.Cr.App.1967); 25 Tex.Jur.2d, Forgery, § 57.

In Stuebgen v. State, supra, this court wrote:

“While the requisite culpable mental state under Sec. 32.21(b) is ‘intent to defraud or harm,’ we fail to perceive how such culpable mental state can be shown absent proof of knowledge that the instrument is forged.”

In Castanuela v. State, 435 S.W.2d 146 (Tex.Cr.App.1968), it was held that the fact the defendant “cashed the forged check in question and endorsed his name thereon, with an incorrect address, is sufficient to warrant the jury’s conclusion that he knew the check was a forgery when he passed it.”

In Phillips v. State, 488 S.W.2d 97 (Tex.Cr.App.1972), where the defendant falsely represented himself as payee of the check, endorsed it in the presence of the supermarket cashier, and gave false information about the maker of the check to the supermarket manager the evidence was held sufficient to show knowledge that the instrument was forged. See also Hilton v. State, 443 S.W.2d 843 (Tex.Cr.App.1969).

In Golden v. State, 475 S.W.2d 273 (Tex.Cr.App.1971), evidence was held sufficient to show knowledge that the instrument was forged where the defendant stated, when passing the check, that the maker thereof was an insurance man and proof reflected that the man listed as maker of the check was fictitious. See also Colburn v. State, 501 S.W.2d 680 (Tex.Cr.App.1973).

In the instant case the State did not show that anything appearing on the check was in appellant’s handwriting, that he did in fact have a driver’s license, that the social security number was not that of his uncle’s, etc. However, the record does show that shortly after passing the check the appellant asked Pastrano for the paper on which Pastrano had written the license number of appellant’s automobile and then attempted to take it away from him. When this fact is taken together with all the other facts and circumstances in the case, we conclude that it is sufficient to show knowledge that the check in question was forged and to show that appellant acted with intent to defraud. The court did not err in overruling the motion for instructed verdict.

In submitting the case to the jury, the court charged on the law of circumstantial evidence. The evidence was sufficient to sustain the verdict.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Tomas V. TORRES, Appellant, v. The STATE of Texas, Appellee.
    No. 53472.
    Court of Criminal Appeals of Texas.
    June 22, 1977.
    Rehearing Denied July 13, 1977.

      Antonio G. Cantu, San Antonio, on appeal only, for appellant.

      Ted Butler, Dist. Atty., Gordon V. Armstrong, Sharon S. MacRae and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., 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. The jury found the paragraphs in the indictment charging appellant with having been previously convicted of two felonies to be true, and punishment was assessed under V.T.C.A., Penal Code, Sec. 12.42(d), at life.

The record reflects that on June 6, 1975, several San Antonio police officers entered appellant’s residence armed with a search warrant. Upon entry of the house, appellant was found seated at the kitchen table. On the table were 245 balloons, some of which contained heroin; a dinner plate with a brown powder substance on same, later determined to be heroin; a spoon and a razor blade. Twenty-five hundred dollars in cash was found under a dresser. Four or five ounces of heroin were seized. Appellant and his wife, Olivia Sanchez, were arrested and tried in a joint trial. The sufficiency of the evidence is not challenged.

Appellant contends in his first ground of error that the trial court erred in overruling his motion to suppress the contraband in that the affidavit underlying the search warrant was insufficient to reflect probable cause. The relevant portion of the affidavit in support of the search warrant provides as follows:

“ . . . such belief of the affiant is founded upon the following information: On the 6th of June, 1975, the affiant received information from a reliable and credible person who has given information in the past regarding narcotic traffic which has proven to be true and correct but whoes (sic) name cannot be revealed for security reasons that he the said reliable and credible person did see controlled substance, to wit: heroin unlawfully possessed by Tomas V. Torres and Olivia R. Sanchez on the 5th day of June, 1975 at 3558 W Woodlawn. ...”

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, sets out the following requirements necessary to show probable cause when an unidentified informer is involved:

“The magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or his information ‘reliable.’ ”

The statements in the affidavit that the informer had personally observed appellant and Olivia Sanchez in possession of heroin at the address where the search warrant was executed only one day before he gave the information to the officer who swore to the affidavit satisfies the first prong of the Aguilar test. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Smith v. State, Tex.Cr.App., 496 S.W.2d 90; Hegdal v. State, Tex.Cr.App., 488 S.W.2d 782; Heredia v. State, Tex.Cr.App., 468 S.W.2d 833.

The second prong of Aguilar was fulfilled by the recitations in the said affidavit that the affiant received information from a credible and reliable person who had given information in the past regarding narcotic traffic which had proven to be true and correct. See Hegdal v. State, supra; Collins v. State, Tex.Cr.App., 502 S.W.2d 743.

Appellant complains that the language in the affidavit that the informer has given information “regarding narcotic traffic” is unclear. We rejected a similar contention in Barnes v. State, Tex.Cr.App., 504 S.W.2d 450, where we held that language in an affidavit that the informer had given information on several occasions “concerning narcotic offenses” which had proven true and correct was not vague and ambiguous, and satisfied Aguilar. Likewise, appellant’s argument that the affidavit is insufficient in that it does not allege the informer was familiar with heroin in order to identify it is without merit. In Pecina v. State, Tex.Cr.App., 516 S.W.2d 401, we held that an affidavit need not state an informer’s qualifications to identify heroin. Further, the allegation that the informer had given information in the past “regarding narcotic traffic” which had proven to be correct, when interpreted in a realistic and common sense manner, indicates the informer’s familiarity with controlled substances. Appellant also contends that the affidavit is defective because it does not recite to whom the informer had given information in the past. Appellant’s contention was answered adversely to him in Jones v. State, Tex.Cr.App., 522 S.W.2d 930, where the affidavit stated:

“ . . . The source has given information in the past on at least five occasions and on each occasion the information has proven to be true and correct and the information at this time is that the heroin has been observed by the source within the last 24 hours. . . .”

In Jones, the Court wrote:

“A realistic and common sense interpretation of the affidavit in the instant ease is that the informant had given prior information to both officers who signed the search warrant and swore to the affidavit.”

See also Barnes v. State, Tex.Cr.App., 504 S.W.2d 450; Ware v. State, Tex.Cr.App., 467 S.W.2d 256; Williams v. State, Tex.Cr.App., 476 S.W.2d 300; Curtis v. State, Tex.Cr.App., 519 S.W.2d 883; and numerous cases which are cited in Avery v. State, Tex.Cr.App., 545 S.W.2d 803, holding similar affidavits to be sufficient.

We hold therefore that the affidavit supporting the search warrant presented sufficient underlying circumstances for the magistrate to determine that the informant was reliable and that the heroin was where the informer said it was.

Appellant next contends that the trial court erred in admitting the search warrant and officer’s return (not the affidavit upon which the warrant was based) into evidence over his objection.

Recitals contained in a search warrant and return are hearsay and are not admissible before the jury for any purpose, and their admission over objection is error. See Doggett v. State, Tex.Cr.App., 530 S.W.2d 552, and cases there cited. However, whether the error constitutes reversible error is determined by examining the facts of each case to see if the receipt of the instruments was harmful. See Doggett v. State, supra.

In the instant case, the complained-of instruments contain a statement by Officer Carpenter that the search warrant was executed on June 6th and that approximately 8 ounces of heroin were recovered and appellant and Olivia Sanchez were arrested for possession of heroin.

At trial, Officer Carpenter testified in much greater detail to substantially the same facts as contained in the search warrant and the return. This Court has held that as a general rule a judgment will not be reversed for the erroneous admission of improper testimony if the same facts were proved by other proper testimony. See Doggett v. State, supra; Watson v. State, Tex.Cr.App., 532 S.W.2d 619; Alvarez v. State, Tex.Cr.App., 511 S.W.2d 493; Yates v. State, Tex.Cr.App., 488 S.W.2d 463. This case is distinguishable from Figueroa v. State, Tex.Cr.App., 473 S.W.2d 202, relied upon by appellant, in that the instrument complained of here did not contain hearsay allegations such as are set forth in the affidavit by an unidentified informer who did not testify at trial. Ne error is shown.

Appellant complains that the trial court erred in overruling his objection and motion for mistrial to the State’s final argument because said argument injected harmful un-sworn testimony before the jury.

The record reflects that during final argument the prosecutor stated:

“MR. ARMSTRONG: Two hundren [sic] and forty-five of these things lying around on the table, a spoon, a razor blade, heroin all over this nice dinner plate right here. You know, he wasn’t doing it out in the garage, he wasn’t off at some place in the woods doing it that she didn’t have any knowledge about it. He is sitting right there at the kitchen table and she is just looking and he is just fixing these things up, with $2,000.00 hidden under a dresser. But, she didn’t know anything about him. And this has been going on for a couple of years.”

Appellant’s objection that there was no testimony “that this had been going on for two or three years” was sustained and the court instructed the jury to disregard the same. Appellant’s motion for mistrial was denied.

We find that appellant’s objection and the court’s prompt instruction to the jury to disregard the argument cured error, if any. See Young v. State, Tex.Cr.App., 547 S.W.2d 23; Lafoon v. State, Tex.Cr.App., 543 S.W.2d 617; Smith v. State, Tex.Cr.App., 516 S.W.2d 415.

Appellant next contends that the trial court erred in refusing to grant him a mistrial after the prosecutor argued before the jury that appellant had failed to call a witness to testify.

The record reflects that the prosecutor argued as follows:

“Well, as Torres says, her [Sanchez’s] sister is here. Where is her sister? She is out there in the hallway. They bring her sister in here as to what? Anything about this? They didn’t even put her sister on. They didn’t put nothing on. Just let everybody—
“MR. GONZALEZ [defense counsel]: I will object to that. The defendants don’t have any duty to put on any evidence. We object to the inference that we have to call the sister or any other witness in this case. The burden is on the State and not the defendant. We object to this kind of argument. It is inflammatory, prejudicial and completely improper.
“THE COURT: Overruled.
“MR. GONZALEZ: Note our exception.”

Appellant testified before the jury that Sanchez’s sister, Mary Zuniga, was out in the hallway of the courtroom.

Where the record reflects that witnesses were available to testify for an accused and were not called, a prosecutor’s argument that an accused offered no evidence does not constitute improper argument. See Beal v. State, Tex.Cr.App., 520 S.W.2d 907; Mutscher v. State, Tex.Cr.App., 514 S.W.2d 905; Garcia v. State, Tex.Cr.App., 513 S.W.2d 559; Nowlin v. State, Tex.Cr.App., 507 S.W.2d 534; Barker v. State, 170 Tex.Cr.R. 226, 339 S.W.2d 674. The State may comment on the failure of a defendant to call competent and material witnesses and may also argue that the reason for such failure is that any such testimony would be unfavorable to his defense. Thomas v. State, Tex.Cr.App., 519 S.W.2d 430; Fisher v. State, 511 Tex.Cr.App., 511 S.W.2d 506.

Appellant testified in his own behalf and stated that he was at Zuniga’s house on June 5th. The record reflects that Zuniga was available to testify, but that she did not do so before the jury. We find no error in the prosecutor’s argument.

Appellant contends that the trial court erred in admitting hearsay evidence over his objection.

The record reflects that Officer Carpenter, during direct examination, testified as follows:

“Q. Did you receive a phone call?
“A. Yes, sir.
“Q. Who was that from, sir?
“A. A reliable and credible informant.
“Q. Without going into the conversation did he give you some information in regard to narcotics?
“A. Yes, sir; he did.”

Appellant then objected, and the court sustained the objection and instructed the jury to disregard the answer. The court denied appellant’s motion for mistrial.

Carpenter subsequently on direct examination testified as follows:

“Q. All right, sir. Let me hand you what has been marked as State’s Exhibit No. 1, sir, and I will ask if you can identify that, sir?
“A. Yes, sir. This is the complaint — this is actually a copy of the complaint.
“MR. GONZALEZ: We will object to any line of testimony about the complaint or search warrant, it has no bearing on the issues before this jury. It is based on hearsay. We object to it most strenuously.
“THE COURT: What did you give him, Counsel?
“MR. ARMSTRONG [prosecutor]: I gave him the complaint just to identify it, Your Honor.
“THE COURT: Okay. The objection is overruled at this point.
“MR. GONZALEZ: Note our exception.
“QUESTIONS BY MR. ARMSTRONG:
“Q. That affidavit right there, without going into the contents, did you personally perpare (sic) that yourself, sir?
“A. Yes, sir; I did.
“Q. All right, sir. After preparing the affidavit in there — I don’t want you to go into any conversation, but was it in reference to the phone call that you received, sir?
“MR. GONZALEZ: Again, Your Honor, we will object.
“THE COURT: Sustain the objection to it, Counsel.”

This Court has held that where the issue of probable cause has been determined and is not an issue to be submitted to the jury evidence regarding the same should not be introduced before the jury. See Rosales v. State, Tex.Cr.App., 399 S.W.2d 541; Smith v. State, Tex.Cr.App., 511 S.W.2d 296; Dawson v. State, Tex.Cr.App., 477 S.W.2d 277; Vara v. State, Tex.Cr.App., 466 S.W.2d 315; Barber v. State, Tex.Cr.App., 481 S.W.2d 812.

However, in the instant case, the trial court instructed the jury to disregard the question and answer. See Jimenez v. State, 421 S.W.2d 910. Such action distinguishes the case from the above cases where the trial court overruled the objection and admitted the hearsay testimony into evidence. This Court will not reverse a conviction solely because an improper question was propounded to a witness where an instruction to disregard same is given except in extreme cases where the evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. See Bolden v. State, Tex.Cr.App., 504 S.W.2d 418; Watson v. State, Tex.Cr.App., 532 S.W.2d 619; Ashley v. State, Tex.Cr.App., 527 S.W.2d 302.

In the instant case, the only evidence regarding probable cause which was introduced before the jury was Carpenter’s statement that he received a phone call from a reliable informant regarding narcotic information. The affidavit to the search warrant was not introduced before the jury but only identified, and the question to Carpenter as to whether the affidavit was prepared from the information he received from the informant was not answered. See Ashley v. State, supra; Wood v. State, Tex.Cr.App., 511 S.W.2d 37; Kirkpatrick v. State, Tex.Cr.App., 515 S.W.2d 289.

We find that the question and answer were not such as to inflame the minds of the jury and the court’s instruction cured any error. As to appellant’s last objection (to the question), the same was sustained, and appellant did not request an instruction to disregard or make a motion for mistrial. Thus, he has received all the relief he asked for and is in no position to complain. See Franks v. State, Tex.Cr.App., 462 S.W.2d 287.

Lastly, appellant contends that the trial court erred in overruling his written objections to the record without a hearing in violation of Art. 40.09, Sec. 7, V.A.C.C.P.

The record reflects that appellant’s counsel on appeal filed a timely motion after notice of completion of the record was given and objected to the record being approved until appellant could be returned to San Antonio by bench warrant to personally review the record to determine if it spoke the truth. The motion further stated that appellant’s review of the record was necessary because counsel on appeal did not have actual knowledge of the proceedings at trial.

Article 40.09, See. 7, supra, provides:

“Notice of completion of the record shall be made by the clerk by certified mail to the parties or their respective counsel. If neither files and presents to the court in writing any objection to the record, within fifteen days after the mailing of such notice and if the court has no objection to the record, he shall approve the same. If such objection be made, or if the court fails to approve the record within five days after the expiration of such fifteen-day period, the court shall set the matter down for hearing, and, after hearing, shall enter such orders as may be appropriate to cause the record to speak the truth and the findings and adjudications in such orders, if supported by evidence, shall be final. In its discretion, the court may require the attendance of the defendant at such hearing. Such proceeding shall be included in the record, and the entire record approved by the court.”

The statute mandates a hearing when objections to the record are made so that the record may be made to speak the truth. Appellant’s counsel merely requested that appellant be brought to San Antonio to personally review the record. The motion makes no mention of irregularities in the record, nor does it refer to a lack of cooperation by appellant’s trial counsel or whether trial counsel had been contacted to review the record. The record reflects that trial counsel and counsel on appeal both resided in San Antonio. Absent an allegation that the record does not speak the truth or lack of cooperation by appellant’s trial counsel, we find no error in the trial court’s refusal to conduct a hearing before the record was approved.

Upon reviewing other contentions advanced by appellant in his pro se brief, we find they are without merit.

The judgment is affirmed.

Opinion approved by the Court.


text:
    John Dean ROY, Appellant, v. The STATE of Texas, Appellee.
    No. 53419.
    Court of Criminal Appeals of Texas.
    June 29, 1977.

      J. Charles Whitfield, Houston, for appellant.
    Carol S. Vance, D. A., Robert Shults and Michol O’Connor, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for unlawfully carrying a handgun. V.T.C.A., Penal Code § 46.02. Punishment of one hundred twenty (120) days in jail and a fine of $300.00 was assessed by the jury.

The record discloses that around 1 a. m., April 2, 1975, police officers Townsend and Fergerson were on routine patrol in the 5th Ward area of Houston. They observed a 1974 Dodge pickup truck driven by appellant leave the parking lot of Scorpio’s Lounge and proceed slowly near the intersection of 76th Street and Avenue P. The officers noticed a passenger slumped down alongside appellant in the pickup cab. Townsend testified that he decided to stop appellant because of his slow rate of speed and because he thought appellant had just picked up a prostitute. Both Townsend and Fergerson testified that they had difficulty stopping the pickup, even after turning on their flashing lights. Appellant finally stopped only after the police car pulled directly in front of his truck.

Townsend further testified that appellant was abusive and arrogant when questioned and that he claimed to be a deputy constable entitled to carry a weapon. As proof of his alleged peace officer status, appellant displayed a printed card and badge which purported to identify him as a deputy constable of Harris County. Since the card contained no photograph or fingerprint identification, Townsend was suspicious and radioed his supervisor, Sergeant Chebret. Chebret arrived shortly thereafter and after examining the identification card, concluded that appellant was not a law enforcement officer and directed that he be arrested. Immediately after the arrest, Townsend conducted an inventory of the pickup and discovered a loaded .38 calibre revolver in the side compartment of the left door.

In his first ground of error appellant argues that the trial court erred in refusing his requested charge that the term “premises” could include a moving vehicle exclusively controlled by appellant and used in his regular course of business. Appellant’s argument is based on that portion of V.T. C.A., Penal Code, § 46.03, which reads:

“The provisions of Section 46.02 [unlawfully carrying a weapon] of this code do not apply to a person:
“(1) . . .
“(2) on his own premises or premises under his control . . .. (Emphasis supplied.)”

Appellant contends that since his business was that of a serviceman of coin-operated vending machines, requiring him to keep in his vehicle tools and money collected from the machines, his vehicle was within the statutory definition of “premises” and he was thus privileged to carry the pistol. We reject this definition as contrary to previous decisions of this court and the legislative intent expressed in § 46.02 and § 46.03, supra.

In Lattimore v. State, 65 Tex.Cr.R. 490, 145 S.W. 588 (Tex.Cr.App.1912), this court rejected a similar argument and defined “premises” under Article 476, Penal Code, 1911, as excluding a vehicle on a public road. Lattimore v. State, supra, involved a rural mail carrier who operated an open buggy along a 23 mile route of public roads. In addition to delivering mail, he also collected proceeds from the sale of money orders and stamps. There this court quoted from Baird v. State, 38 Tex. 599, 601, 602, in part as follows:

“. . . The place of business contemplated by the law . . . has reference to a particular locality, appropriated exclusively to a local business, such as the farm, the store, the shop, or dwelling place, and the business . . . as is usually carried on upon the farm, in the store or shop, or other appropriated local place . . . (T)he public roads, can in no proper sense be termed any man’s place of business, since he has no right to an exclusive appropriation.”

Although we find no more recent case in point, we consider the persuasive rationale discussed in Lattimore to have current vitality. If “premises” could include a moving vehicle controlled by a person in “his regular course of business,” every person could then argue justification for bearing arms. As stated in Baird:

. . for he could always claim to be at his own business . . .; and even he who makes it a business to appropriate other people’s property to his own use might claim the right to bear arms to protect that business.” Lattimore v. State, supra.

Moreover, to adopt appellant’s position would permit any route operator of a service business or any truck driver to lawfully possess a weapon of the class described in § 46.02 while in his vehicle on the public thoroughfares. We believe such a construction of § 46.03 was not intended by the Legislature. See Cortemeglia v. State, 505 S.W.2d 296 (Tex.Cr.App.1974), and the cases cited therein dealing with the offense of unlawfully carrying a weapon under the prior Penal Code.

While § 46.03 fails to define “premises,” the term was derived from prior law, including the Penal Code of 1911 which was interpreted in Lattimore v. State, supra. Since this interpretation was not changed by the Legislature in enacting Article 483, Vernon’s Ann.P.C., 1925, and later § 46.03, we presume that the holding in Lattimore v. State is consistent with and applicable to § 46.03. Stork v. State, 114 Tex.Cr.R. 398, 23 S.W.2d 733 (Tex.Cr.App.1929).

Aside from,Lattimore, there is a further consideration which indicates legislative intent contrary to appellant’s position. In 1975 § 46.03 was supplemented by subdivision 5, which exempts armored car guards, messengers and private security officers from § 46.02 liability. By this action, the Legislature recognized the need to specifically limit the circumstances in which a person may lawfully carry certain weapons while operating a vehicle on public roads. The statute contains no reference to a person such as appellant who uses his vehicle in operating a service route in one local area. If the Legislature had intended to exempt route operators from the ambit of § 46.02, such a class would have been specified in the statute.

For these reasons, we hold that appellant’s vehicle was not within the definition of “premises” or “premises under his control” as used in § 46.03.

As other aspects of this ground of error, which render it multifarious and not in compliance with Article 40.09, § 9, Vernon’s Ann.C.C.P., appellant claims that V.T. C.A., Penal Code, § 46.02, is unconstitutional because it denies him the right to bear arms in violation of Article I, § 23 of the Texas Constitution, and because it denies him equal protection of the law. In Collins v. State, 501 S.W.2d 876 (Tex.Cr.App.1973), this court upheld Article 483, Vernon’s Ann. P.C., 1925, the predecessor of § 46.02, against a similar challenge. We find no cause to depart from the reasoning in Collins, and we hold that § 46.02 is not viola-tive of the constitutional right to keep and bear arms. The Legislature has the power to enact such law with a view to prevent crime. Collins v. State, supra. See also Morrison v. State, 170 Tex.Cr.R. 218, 339 S.W.2d 529 (Tex.Cr.App.1960).

Nor do we find that V.T.C.A., Penal Code, § 46.02 and § 46.03 deny appellant equal protection of the law. We can easily perceive a rational basis for limiting the class of persons authorized to carry certain weapons. Indeed, the fact that not all citizens may do so is the necessary result of the exercise of the legislative power to prevent crime. Article I, § 23, Texas Constitution; cf. Milligan v. State, 554 S.W.2d 192 (Tex.Cr.App.1977), and Collins v. State, supra. Appellant’s first ground of error is overruled.

Appellant contends in his second ground of error that the trial court erred in refusing to allow him to establish the defense of necessity by testimony of the arresting officers on the issue of inadequate police patrols and appellant’s alleged need to carry the pistol for self-protection. We hold that the error, if any, in excluding this testimony was harmless.

The defense of necessity was only recently established in Texas with the 1973 enactment of V.T.C.A., Penal Code, § 9.22. The statute makes availability of the defense dependent on three conditions: (1) the actor must reasonably believe the conduct is immediately necessary to avoid imminent harm; (2) the harm sought to be avoided must clearly be greater than the harm actually caused (i. e., the offense); and (3) a legislative purpose to exclude the justification claimed for the conduct must not otherwise plainly appear. See Practice Commentary, V.T.C.A., Penal Code, § 9.22. Without considering the second condition, we conclude that the first and third conditions were not satisfied, that the defense of necessity was not raised by the evidence, and that there was no harm in the trial court’s exclusion of the proffered testimony.

Appellant's bills of exception reveal that the officers would have testified before the jury as follows:

Officer Townsend: that the site of the offense is adjacent to an area where an officer was shot 2 weeks before; that this area was one involving “quite a few robberies of people and burglaries and muggings . . .;” that the officer did not know whether sufficient police protection existed in the area to guarantee the personal safety of all the residents; and that this “beat” was no tougher than the others.
Officer Fergerson : that an estimated 3 police patrol vehicles at a time were patrolling an estimated 30 square mile area near the site of the offense; that there were approximately 30 or 40 taverns in the area; that this was what the officers considered to be a “high crime” area; that in the officer’s opinion, “with the manpower that we have, we can get out there and try” to adequately protect the area.

Even construing this testimony favorably to appellant, we fail to see any circumstances which made it immediately necessary for appellant to possess a weapon. Nor does it appear elsewhere in the record that appellant had been threatened or that he was in any conceivable danger of imminent harm. Although appellant testified that his truck had been burglarized sometime in the past and that someone had once “used a firearm on him,” such testimony fails to establish an immediate necessity to avoid imminent harm. Therefore, the first condition under § 9.22 could not have been satisfied.

The third condition makes the defense of necessity unavailable if a legislative purpose to exclude it is expressed elsewhere in the law. Practice Commentary, § 9.22. We find such purpose to be expressed in V.T. C.A., Penal Code, § 46.02, which seeks to prohibit carrying deadly weapons. The Legislature has not deprived citizens of the right to bear arms; rather, § 46.02 is an attempt to insure that certain types of weapons readily capable of and specifically designed for inflicting serious injury are removed from the public domain. To allow any person to carry a weapon prohibited under § 46.02 anytime he felt he was in a “high crime” area would openly thwart the purpose of the statute.

For these reasons, we hold that appellant’s proffered evidence did not raise a fact issue entitling him to the defense of necessity and that the trial court committed no error in excluding it. Cf. Worton v. State, 492 S.W.2d 519 (Tex.Cr.App.1973), with Garcia v. State, 528 S.W.2d 604 (Tex.Cr.App.1975).

Appellant’s third ground of error asserts that the trial court erred in failing to allow appellant to read to the jury the deposition of an absent defense witness. Appellant claims that he was entitled to present the deposition under Article 38.24, Vernon’s Ann.C.C.P., which provides for the admissibility of any act, declaration or writing which is necessary to fully explain similar previously admitted matters. We have no occasion here to determine whether the deposition was admissible under said Article 38.24, supra, because appellant failed at trial to satisfy a more fundamental requisite to its admissibility: the predicate contained in Article 39.12, Vernon’s Ann.C.C.P. Absent the proper predicate, the deposition was inadmissible without regard to said Article 38.24, supra. The trial court thus properly excluded the deposition. Forbes v. State, 513 S.W.2d 72 (Tex.Cr.App.1974), cert. denied, 420 U.S. 910, 95 S.Ct. 830, 42 L.Ed.2d 840; Article 39.12, supra.

In his final ground of error appellant complains of the trial court’s failure to dismiss certain prospective jurors due to their answers to questions on voir dire. The record contains no court reporter’s transcription of the voir dire proceedings and no indication that appellant made an affirmative request for a court reporter pursuant to Article 40.09, Vernon’s Ann.C. C.P. Therefore, there is nothing presented for review. Presley v. State, 538 S.W.2d 624 (Tex.Cr.App.1976); Cartwright v. State, 527 S.W.2d 535 (Tex.Cr.App.1975); Jones v. State, 496 S.W.2d 566 (Tex.Cr.App.1973).

The judgment is affirmed.

      . Article 475 states:
      “If any person in this state shall carry on or about his person . . . any pistol . he shall be punished by fine . . ..”
      Article 476 states:
      “The preceding article shall not apply to . . . the carrying of arms on one’s own premises or place of business.”


author: GREEN, Commissioner.

text:
    James KINCADE, Appellant, v. The STATE of Texas, Appellee.
    No. 53465.
    Court of Criminal Appeals of Texas.
    June 29, 1977.
    Jackson & Levy, Denton, for appellant.
    John E. Lawhon, Mervin B. Waage, Asst. County Attys., Denton, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of disorderly conduct. V.T.C.A. Penal Code, See. 42.01. Punishment was assessed by the court at a fine of two hundred dollars.

The record reflects that during the early morning hours of March 8, 1976, Officer Victor R. George of the Sanger Police Department, acting upon a police radio dispatch, stopped a pickup truck three miles south of Sanger in Denton County. George arrested the vehicle’s driver Tommy Calvert for driving while intoxicated and “hit and run.” George also arrested appellant, Calvert’s sole passenger. George testified that appellant allowed himself to be “frisked,” but refused to be handcuffed. George stated that when he attempted to handcuff appellant, “[he] either swung at me to hit me or to try and push me down the cliff.” In an effort to subdue appellant, Officer George struck appellant in the head with a “slap stick.” During the struggle both men lost their footing and “tumbled down the hill.” At the bottom of the embankment a brief scuffle ensued after which appellant ceased resisting and allowed himself to be handcuffed and placed in the patrol car. Appellant and Calvert were subsequently placed in county jail.

Appellant contends the trial court committed reversible error by commenting on the weight of the evidence in violation of Article 38.05, V.A.C.C.P.

The context in which the complained of remarks were made is as follows:

Defense witness Tommy Calvert contradicted Officer George’s testimony in that he testified Officer George initiated an unprovoked attack upon appellant. During cross-examination Calvert was asked:

“Q You never told anyone at anytime that Kincade was drunker than you were and that is the reason you were driving that pickup truck.”
“A No, sir, not that I recall.”

As a means of impeaching Calvert’s general credibility, the State on rebuttal elicited the testimony from State’s witness Blackburn, Calvert’s probation officer, that Calvert had made the aforementioned statement. Blackburn testified on direct examination that Calvert had been placed on probation for driving while intoxicated offense committed on March 8, 1976, the date of the instant offense of which appellant was convicted. Blackburn stated that when he interviewed Calvert on March 11, 1976 concerning the offense, Calvert told him that he had been driving the car because “the friend who was in the car with me was too drunk to drive.” During cross-examination of Blackburn appellant attempted to show that Calvert was not on probation for the March 8, 1976 offense of driving while intoxicated, but was on probation for a similar offense committed in October 1976, and, therefore, appellant was not the “friend” Calvert referred to in his statement. The trial judge interrupted appellant’s cross-examination and the State’s re-direct examination of Blackburn as shown in the following extract from the statement of facts:

“by Mr. Levy (counsel for appellant):

“Q Mr. Blackburn?
“A Yes, sir.
“Q In fact of the matter, the DWI that Mr. Calvert has pled guilty to did not occur on March the 8th, is that correct?
“COURT: I think the Court’s records are the best evidence and the Court’s records if you want—
“MR. LEVY: — Judge, I will paraphrase it for him, I just want to clarify this for the Jury, be easier if I don’t have to testify.
“COURT: All right, because it is exceedingly misleading in the context in which it was originally presented.
“MR. LEVY: What?
“COURT: Just bringing one of these cases up here.
“MR. LEVY: Your Honor, that is the only one that we are talking about, is the March 8th offense.
“COURT: All right, if you proceed then.
“MR. LEVY: Note my exception to the Court’s remarks and I move to have the Court instruct the Jury to disregard them.
“COURT: I decline because you are misrepresenting the state of the record to the Jury.
“MR. LEVY: No, Your Honor, it is the State of Texas that said he pled guilty on March the 8th — for the March 8th offense, and he did not, he pled guilty on March the 11th to an offense that occurred in October and that is what we are talking about, it is a matter of official record. I have no objection to the introduction of those exhibits to the Jury.
“COURT: Well, the Court wants them properly explained.
“MR. LEVY: Well, I am going to do that.
“COURT: All right, but this witness does not possess the qualifications and is not the custodian to comment upon the records of this Court. He might comment about records within his cognizance down at the Probation Department.
“MR. LEVY: That is what I am trying to clarify, Judge, I am getting ready to straighten that out.
“COURT: Let’s see that it is straightened out properly.
“MR. LEVY: Note my exception to the Court’s remarks on that.
“COURT: Denied.
“MR. LEVY: Note my exception,

“by Mr. Levy:

“Q Now, Mr. Blackburn.
“A Yes, sir.
“Q In fact of the matter, a probationer reports about once a month, is that right?
“A That is correct.
“Q Usually.
“A Usually, yes.
“Q If he is ordered to report each month, he reports each month, is that right?
“A Yes, sir.
“Q So that the reason that Mr. Calvert was on probation was not out of the March 8th offense, was it, it was out of an October offense, is that correct? To the best of your recollection, if you don’t remember, just say you don’t remember.
“A Okay, I don’t remember.
“MR. LEVY: Okay, I’ll pass the witness, then I will testify.

“REDIRECT EXAMINATION

“by Mr. Waage (prosecuting attorney):

“Q Mr. Blackburn, this morning I asked you if you are sure this was related to the March 8th offense and you were sure.
“A Yes.
“Q Why were you sure about that?
“A I was sure about that because I checked my record. I wouldn’t—
“Q In other words—
“A —Would the Court grant permission for me to get the file please?
“MR. LEVY: I have no objection,

“by Mr. Waage:

“Q There could be a possibility that your record is wrong, is that what you are saying, or what?
“COURT: There is no possibility — I think these records — the Court will explain this matter to the Jury according to the records of the Court.
The records of the Court show that — concerning this offense, that there were two cases pending in this Court on March the 11th against the Defendant, Tommy Dale Calvert, and on that date Mr. Calvert came before this Court and entered a plea of guilty to one of them, the old one, and the more recent one, which was involved in this case, the State dismissed that case, and that that is a usual practice where a person has two or three cases, just to pick one of them and put him on probation and dismiss the others; and that is what happened in this case and it is very misleading to the Jury to say to the Jury that this case was dismissed because it was not a good case. It was dismissed because it is customary to let him plead out on one of them and dismiss the others. And he plead out on the old case and got this one dismissed. Now, whether he was guilty or not guilty, no one really knows.
“MR. LEVY: Note my exception to all of the Court’s remarks because I think the Court has already stated that the best evidence rule is the Court’s records.
“COURT: Well, I’ll offer these and ask the Court Reporter to mark them.
“MR. LEVY: I object to the introduction of the evidence.
“COURT: Mr. Levy, I offer these because you are misleading the Jury and giving them the misimpression—
“MR. LEVY: Your Honor, I would—
“COURT: And be seated.
“MR. LEVY: Well, I am going to make the objection, I think I have a right to as counsel. If the Court wants to hold me in contempt, he can do so and I will bond out, but the fact of the matter is this was not related to the March 8th offense. “COURT: Mr. Levy, you tried to deceive the Court and this Jury and sit down and be quiet.
“MR. LEVY: Note my exception. “COURT: Your exception is noted.
“MR. LEVY: To the last remarks. Thank you, Your Honor.
“COURT: Mark every one of those documents.”

Article 38.05, V.A.C.C.P., provides as follows:

“In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.”

To constitute reversible error in violation of Article 38.05, V.A.C.C.P., the comment must be such that it is reasonably calculated to benefit the State or prejudice the defendant’s rights. Barber v. State, Tex.Cr.App., 511 S.W.2d 937; McClory v. State, Tex.Cr.App., 510 S.W.2d 932; Hernandez v. State, Tex.Cr.App., 507 S.W.2d 209.

The above quoted portion of the record reflects that the trial judge, over appellant’s objection and in the presence of the jury, methodically castigated appellant’s counsel for “misleading” and “deceiving” the jury and court concerning the dismissal of Calvert’s driving while intoxicated offense committed on March 8, 1976. The trial court’s accusation, in the jury’s presence, of deceit by appellant’s counsel in presenting appellant’s defense, was reasonably calculated to prejudice the jury against appellant, denying him his Sixth Amendment right to a fair trial by an impartial jury. See McClory v. State, supra.

Moreover, the trial court compounded its error by offering into evidence, sua sponte, the court records of Calvert’s two separate driving while intoxicated offenses. The court not only testified unsworn concerning the procedural disposition of the cases, but expressed the following unsolicited opinion as to why the March 8, 1976 offense was dismissed: “. . . the State dismissed that case, and that is a usual practice where a person has two or three cases, just to pick one of them and put him on probation and dismiss the others; and that is what happened in this case and it is very misleading to the Jury to say to the Jury that this case was dismissed because it was not a good case . . . .”

We hold the aforementioned conduct of the trial court amounted to an improper comment on the evidence and was reasonably calculated, when considered from the jury’s standpoint, to benefit the State, and therefore prejudice the rights of appellant. See McClory, supra. Cf. Barber v. State, supra; Banks v. State, Tex.Cr.App., 510 S.W.2d 592.

In view of our disposition of this appeal, it is not necessary that we pass on other contentions raised by appellant.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


author: ODOM, Judge.

text:
    Shirley JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 53543.
    Court of Criminal Appeals of Texas.
    June 29, 1977.
    William P. Allison, Austin, for appellant.
    Robert O. Smith, Dist. Atty., Richard E. Banks, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of theft over $200.00. V.T.C.A., Penal Code Sec. 31.-03(d)(4)(A). Her punishment, assessed at two years’ imprisonment, was probated.

The jurisdiction of the trial court to adjudicate this cause is challenged on appeal.

Appellant was charged with theft because she applied to the Texas Department of Public Welfare under Art. 695c, V.A.C.S., for “Aid to Families with Dependent Children” and, on three separate occasions, fraudulently represented that she was not employed. As a result of this misrepresentation, she received overpayments from the Department of Public Welfare totaling $703.00.

Appellant contends that she should have been prosecuted under the Public Welfare Act, Art. 695c, supra, Sec. 34 of which provided in part:

“Whoever obtains, or attempts to obtain, or aids or abets any person to obtain,' by means of a wilfully false statement or representation or by impersonation, or by other fraudulent means:
(1) Assistance, services or treatment to which he is not entitled;
(2) Assistance, services, or treatment greater than that to which he is justly entitled . . . shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined any sum not more than One Hundred Dollars ($100) or be imprisoned for not less than six (6) months, nor more than two (2) years, or be both so fined and imprisoned.”

Appellant urges that this specific enactment governs over the general theft statute and that, because the special statute creates a misdemeanor, not a felony, it was improper to charge her in the district court.

Initially, we observe that appellant’s conduct was in violation of both statutes. Section 34 of Art. 695c, supra, however, is much more specific than the general theft statute in three particulars: (1) the victim (Department of Public Welfare), (2) the property (assistance, etc.), and (3) the means of theft (fraudulent means, etc.).

In Cuellar v. State, Tex.Cr.App., 521 S.W.2d 277, at 279, we stated:

“The rules of statutory construction require that statutes that deal with the same subject be construed so that they harmonize . . . However, a special statute controls over a general statute and it makes no difference in which order the statutes were enacted Where the special statute is complete within itself, it controls, even though other statutes concerning the same subject matter contain requirements not enumerated in the special statute. Legislative intent must be examined.”

See also Sarratt v. State, Tex.Cr.App., 543 S.W.2d 391; Ex parte Harrell, Tex.Cr.App., 542 S.W.2d 169; Hines v. State, Tex.Cr.App., 515 S.W.2d 670.

We conclude, after examination of Sec. 34 of Art. 695c, supra, “that the legislature intended it to be complete within itself.” Cuellar v. State, supra. Our conclusion is supported by the specific nature of the civil statute’s comprehensive scheme, including criminal penalties for welfare fraud. We find no evidence that the civil statute was repealed, impliedly or otherwise, by the enactment of the new Penal Code. The prosecution should have been brought under the Public Welfare Act, not under the Penal Code.

Because the offense established by Sec. 34 of Art. 695c is classified as a misdemeanor, the district court did not have jurisdiction over this cause. Ex parte Pribble, Tex.Cr.App., 548 S.W.2d 54.

The judgment is reversed and the indictment ordered dismissed.

      . The portion of Sec. 34 applicable here has been repealed. See, Acts 1977, 65th Leg., p. -, ch. - [S.B. No. 154],

      . Contrast Acts 1977, 65th Leg., p. 81, ch. 38, in which the Penal Code was amended by adding Sec. 2506, Sale or Purchase of Child, and the Public Welfare Act was amended by repealing Sec. 8(a), subdiv. 13, Sale or Purchase of Child; and Acts 1977, 65th Leg., p. 188, ch. 94, in which the Public Welfare Act was amended by adding Sec. 7-B creating offenses for unauthorized use of food stamps. See also footnote 1, above.


text:
    Raymond Warren HARDAGE, Appellant, v. The STATE of Texas, Appellee.
    No. 53633.
    Court of Criminal Appeals of Texas.
    June 29, 1977.

      Harold J. Laine, Jr., and Walter M. Sekaly, both court appointed, Beaumont, for appellant.
    Tom Hanna, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Jim D. Yollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for burglary of a habitation. Punishment was assessed by the jury at ninety-nine years.

In all six of appellant’s grounds of error, attack is made on the sufficiency of the evidence to support the conviction.

Circumstantial evidence is relied upon for conviction, and the court instructed the jury on the law relative to same. The State argues that the conviction is supported by evidence placing appellant in unexplained possession of property recently stolen from the burglarized premises.

Mrs. Angelina Landry testified that as she was “driving up” to her house on 11th Street in Port Arthur on the morning of October 3, 1974, she noticed that “my air conditioner was pushed out of my window.” Upon entry of the house, Mrs. Landry determined that the air conditioning unit was on the floor inside the house where it appeared to have been pushed by the burglar in gaining entry. “Things were scattered around” in the house, “drawers were pulled out of the dresser,” and a closet door which was shut when she left home had been opened. Mrs. Landry determined that a .410 gauge shotgun and case, a thirty-thirty caliber Winchester and the case it was in, a Panasonic tape recorder and the light to go with it, “my little boy’s eye glasses,” and some coins were missing.

Subsequently, Mrs. Landry saw a picture of appellant in the paper, recognized him as a person she had seen “around the house” and decided to go to the Port Arthur Police Department “to see if the stuff that he picked up — if any of the items recovered” by police might be items that belonged to her.

All items taken in the burglary with the exception of the coins were at the police station. Identifications were made of all articles taken except the “boy’s glasses,” which had been altered by removal of the nose pieces, the lenses and ear pieces. In spite of these changes, Mrs. Landry testified, “they looked like my boy’s glasses.” The serial number of the rifle was obtained from the store where it had been purchased and it matched the number on the rifle at the police station. The articles had been altered in some manner, pieces of red carpet had been placed on the tape player and light, the writing, “R.H. plus E.H.” appeared on the tape player, the shotgun had been sawed off and the scope had been removed from the rifle. Despite these changes, Mrs. Landry positively identified all articles as having been taken from her home in the burglary except the eye glasses.

On May 19, 1975, police officers searched the premises located at 2323 12th Street in Port Arthur where appellant “lived — with his mother and his wife.” Officer Wiley testified that appellant’s mother let them in the house and “took us back to Raymond’s [appellant’s] room.” Wiley stated that upon entry of the room, “we immediately saw a great deal of items in there. Four or five stereo sets, tape players and three, four, five television sets.” Appellant and his wife were in the room. A .22 pistol was removed from appellant’s pocket. All of the items identified by Mrs. Landry at the police station were found in appellant’s room except the rifle, which was found in a car in the garage on the premises. The shotgun and case were found “underneath a chest of drawers” in appellant’s room in a position where they were not visible. Appellant offered no explanation to officers regarding his possession of the items in question at the time of the search, nor did he offer any evidence at trial.

Despite the fact that appellant sets forth a number of grounds of error attacking the sufficiency of the evidence, a review of same reflects that his contentions can be narrowed to the argument that possession of stolen goods seven months after the articles were taken in a burglary does not constitute possession of “recently stolen property” and will not support a conviction.

Evidence that a house has been burglarized, together with defendant’s unexplained possession of some of the property recently stolen from the house, is sufficient to support a conviction for burglary. Hall v. State, Tex.Cr.App., 490 S.W.2d 589; Bernadett v. State, 166 Tex.Cr.R. 621, 317 S.W.2d 747. While unexplained possession of recently stolen property is a circumstance of guilt, it is not conclusive. To be sufficient, the circumstances relied upon must not only be consistent with each other and with the guilt of the accused, but must exclude every other reasonable hypothesis except the guilt of the accused. Ellard v. State, Tex.Cr.App., 509 S.W.2d 622. In Ellard, the defendant was found in unexplained possession of stolen property nearly five months after it was stolen. This Court found that under the circumstances of the case the evidence was sufficient to support the conviction. In Ellard, it was noted that this Court had previously held as a matter of law that an inference of guilt sufficient to support convictions was not raised by possession of stolen property after a lapse of time ranging from three and one-half months up to several years. See 55 Tex. Jur.2d Theft, Sec. 217. In Smith v. State, Tex.Cr.App., 518 S.W.2d 823, we said that whether the stolen property possessed was so recently stolen to raise the presumption of guilt is a question to be determined by the circumstances of each case.

In State v. Brightman, 252 Iowa 1278, 110 N.W.2d 315 (1961), the Supreme Court of Iowa rejected defendant’s contention that the finding of a stolen suit in his closet five months after it had been taken was not too long to meet the test of “recent” possession. In Brightman, the court quoted from 52A C.J.S., Larceny, Sec. 106, where it is stated:

“Whether the interval of time between the larceny of the property and its possession by accused is sufficiently short or long to render the possession recent or remote depends on the facts of the particular case, including the character of the property stolen, the test of recency being: was the interval so short as to render it morally or reasonably certain that there could have been no intermediate change of possession.”

The Iowa Supreme Court noted that in a very early case by that court, State v. Walker, 41 Iowa 217, it was stated:

“What is to be deemed recent possession depends very much upon the character of the goods stolen. If they are such as pass readily from hand to hand the possession, in order to raise a presumption of guilt should be much more recent than if they were of a class of property that circulated more slowly or is rarely transmitted.

We find the reasoning set forth in the authorities cited by the Iowa Supreme Court in Brightman to be sound and consistent with our holding in Smith and El-lard that whether the stolen property possessed was so recently stolen to raise the presumption of guilt is a question to be determined by the circumstances of each case.

In the instant case, six of the eight items found in appellant’s possession were positively identified as having been taken in the burglary. A seventh item, a boy’s eye glasses, was extremely altered, but nevertheless identified as looking like the glasses taken in the burglary. While any one or two of the items could have readily passed from one person to another, it is not as likely that the combination of the seven items herein would pass in that combination from the burglar to another person. While this is a significant circumstance, it is also noted that most of the articles taken had been altered in some manner, some of the items were concealed by appellant in his room, Mrs. Landry went to the police station after she saw appellant’s picture in the paper and recognized him as a person she had seen around her house, and one of the items recovered from appellant had his initials on it.

Under the foregoing circumstances, we find that appellant’s unexplained possession of the stolen articles seven months after the burglary was sufficiently “recent” to bring this case within the rule and support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


author: DALLY, Commissioner.

text:
    Richard DURAN, Appellant, v. The STATE of Texas, Appellee.
    Nos. 53651, 53652.
    Court of Criminal Appeals of Texas.
    June 29, 1977.

      Calvin A. Hartmann, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Larry P. Urquhart, Asst. Dist. At-tys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

Cause No. 53,651 is an appeal from an order revoking probation. Cause Number 53,652 is an appeal from a conviction for the possession of heroin.

CAUSE NUMBER 53,651

The appellant waived a jury trial, entered a plea of guilty, and was convicted for the offense of possession of heroin on September 19, 1973; the punishment assessed was imprisonment for 10 years; the imposition of sentence was suspended and the appellant was placed on probation.

On August 21, 1975, the court revoked probation after finding the appellant had possessed heroin on April 3, 1975, in violation of a condition of probation that he would commit no offenses against the laws of this State.

The appellant contends that the court abused its discretion in revoking probation; he asserts the heroin admitted in evidence was unlawfully obtained and that the evidence is insufficient to show that he was in possession of the heroin found by the officers.

At approximately 1:00 p. m. on April 3, 1975, a City of Houston police officer M. R. Wood received information that the appellant, accompanied by his wife, had just left a house at 1116 Brooks Street with heroin in his possession which he was going to sell. The informer told Wood the appellant would be driving a late model blue Mustang automobile and told Wood the license tag number of that automobile. Wood was given this information in a telephone conversation; Wood knew the informer who on three former occasions had given Wood information which was true about unlawful narcotic transactions. Wood was told by the informer he had personal knowledge of the information he gave.

Wood knew the appellant and knew that he had trafficked in narcotics. Wood and Officer N. B. Brumley, immediately after Wood received the information, drove from the police station toward the house at 1116 Brooks Street. About two blocks from that house they saw the appellant driving the car the informer had described; the officers stopped the car at approximately 1:30 p. m. Wood asked the appellant and his wife to get out of the car. Brumley opened the appellant’s car door on the driver’s side. He observed a piece of folded waxed paper on the floorboard carpet between the driver’s seat and the door.

The packet of waxed paper contained a brown powdered substance which was analyzed by Floyd McDonald, a chemist and toxicologist and the laboratory director for the City of Houston Police Department. He testified that the brown power in the waxed paper packet was about seven percent pure heroin and that it weighed 162 milligrams.

The facts and circumstances already recited show the officers had probable cause to stop and arrest the appellant. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Almendarez v. State, 460 S.W.2d 921 (Tex.Cr.App.1970); Sanders v. State, 482 S.W.2d 648 (Tex.Cr.App.1972); Buitron v. State, 519 S.W.2d 467 (Tex.Cr.App.1975); Roberts v. State, 545 S.W.2d 157 (Tex.Cr.App.1977).

The evidence is sufficient to show that the appellant himself or jointly with his wife possessed the heroin found in the automobile. See Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976); Brooks v. State, 529 S.W.2d 535 (Tex.Cr.App.1975).

CAUSE NUMBER 53,652

The appellant was charged by indictment with the possession of heroin on April 3, 1975. The appellant waived a jury trial and entered a plea of not guilty; the court found the appellant guilty and assessed punishment, which was enhanced by proof of a prior felony conviction, of imprisonment for 20 years.

The hearing on the motion to revoke probation in Cause Number 53,651 was on August 21,1975, while the trial in Cause Number 53,652 was on October 22, 1975. The evidence introduced in Cause Number 53,-651 is substantially the same as that introduced in Cause Number 53,652, except for one important difference. In Cause Number 53,652, the chemist and toxicologist did not testify. There was a stipulation that the contents of the paper packet found by Officer Brumley was heroin and a chemist’s laboratory report was admitted by stipulation.

On appeal the appellant in addition to the grounds urged in Cause Number 53,651 urges that the evidence in Cause Number 53,652 is insufficient to show that the powdered substance in the waxed paper was heroin. He argues that the stipulation may not be considered because he did not make a written agreement to stipulate evidence as provided by Article 1.15, V.A.C.C.P.

Article 1.15, Y.A.C.C.P., provides:

“No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless in felony cases less than capital, the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.”

This record does not contain a written waiver by which the appellant agreed to waive his right to the appearance, confrontation, and cross-examination of witnesses, and consenting to the introduction of stipulated testimony, nor any written approval by the court of such waiver and consent. Since the State did not follow the requirements of Article 1.15, V.A.C.C.P., the stipulation may not be considered and the evidence is insufficient to support the convictions. Rodriguez v. State, 442 S.W.2d 376 (Tex.Cr.App.1969); Alonzo v. State, 462 S.W.2d 603 (Tex.Cr.App.1971); Hughes v. State, 533 S.W.2d 824 (Tex.Cr.App.1976); Rodriquez v. State, 534 S.W.2d 335 (Tex.Cr.App.1976). Article 1.15, V.A.C.C.P. is applicable to pleas of not guilty before the court. Rodriguez v. State, 442 S.W.2d 376 (Tex.Cr.App.1969); Hughes v. State, supra; Rodriquez v. State, 534 S.W.2d 335 (Tex.Cr.App.1976).

The State argues that there is evidence other than the stipulation which is sufficient to prove that the substance in the paper packet was heroin. The State says that Officer Wood had two years’ experience as a narcotics officer and that he testified, “Officer Brumley returned to the front of the vehicle to the driver’s side, and there he found the heroin.”

Although an officer may be qualified as an expert and testify that a plant substance is marihuana, he may not be qualified as an expert to testify that a brown powdered substance is heroin. See Curtis v. State, 548 S.W.2d 57 (Tex.Cr.App.1977). See also Hughes v. State, supra, where the judgment was reversed for the same reason as in this case even though the officer on two occasions mentioned the word “heroin” without referring specifically to exhibits. The State proved the brown powdered substance was heroin on the motion to revoke probation, but failed to do so in the trial in Cause Number 53,652.

The Cause Number 53,651 is affirmed.

In Cause Number 53,652, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, J., dissents to the reversal of Cause Number 53,652, because evidence was introduced without objection that Officer Brumley found the heroin in the car.

ODOM, J., dissents to the reversal of Cause Number 53,652.