author: DOUGLAS, Judge.

text:
    James THOMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 54186.
    Court of Criminal Appeals of Texas. Panel No. 2.
    March 22, 1978.

      E. M. Bill Jordan, Kaufman, court appointed, for appellant.
    Arthur Miller, C. A., Kaufman, for the State.
   OPINION

Before ONION, P. J., and DOUGLAS and ODOM, JJ.

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of burglary under Y.T.C.A., Penal Code, Section 30.02(a)(1). The jury, having found that appellant had a previous noncapital felony conviction, assessed his punishment at twenty-five years.

The indictment alleges, in part, that on June 26, 1975, appellant “intentionally and knowingly and without the effective consent of Earnest Oatman, the owner thereof, enter a building not then and there open to the public, with intent to commit theft, to wit: with intent then and there to obtain property unlawfully from Earnest Oatman, without the effective consent of Earnest Oatman, the owner of said property, and with intent to deprive the said owner of said property, and that said building was then and there a habitation occupied by the said Earnest Oatman; . . .”

The jury found that these allegations were true and returned a verdict of guilty. Appellant contends the evidence is insufficient to support the verdict.

Ernest Oatman testified that on June 26, 1975, he lived in a house located at 305 East Temple Street in Terrell. He stated that he was at home for most of that day but at 4:30 or 5:00 o’clock in the afternoon he went to Levi Payne’s house which was located at a distance of about one and one-half blocks from Oatman’s house. Oatman could see his home clearly from Payne’s house. Oatman stated that while he was there he saw appellant leaving the premises of Oatman’s home. Appellant was proceeding across the road into a vacant field directly across the street from Oatman’s house. Oatman related that appellant was carrying something in his hands.

Oatman further testified that he immediately got into his truck and drove home. He saw appellant’s pickup truck on the wrong side of the road. It was parked in the vacant field. Oatman stated that he then observed appellant hiding in the grass by the pickup truck. The grass was high and was capable of camouflaging the truck.

Oatman stated that he went to a friend’s house on the next street and asked some people there whether they had observed appellant in the neighborhood and, if so, whether he was carrying anything. They replied that they had not seen him. At that time appellant got into his truck and drove away at a high rate of speed. Oatman testified that he returned to his house and discovered that someone had kicked in the back door and entered the home. The burglar had taken two shotguns, a rifle, barber clippers and several musical tapes. Oatman then called the police.

Oatman further testified that he had known appellant for seven or eight years and that appellant had occasionally worked for him. Oatman stated that his house was a private dwelling and that it was closed and locked when he left it to go to Payne’s home. Oatman had not given anyone permission to enter his house.

On cross-examination, Oatman testified that he observed appellant leaving the premises of Oatman’s house and walking toward a “weed patch” in the vacant field. Oatman testified that he did not see appellant come out of the house, however. Oat-man reiterated that appellant was carrying something, but Oatman was unable to determine whether it was a gun or a suitcase. Thereafter, while Oatman was talking to some neighbors, appellant “jumped in his truck and left the scene going to town. .” Oatman also stated that Officer Pitts recovered some of the stolen items in the weeds growing in the vacant field.

Oatman testified on re-direct that the tape carrying case taken from his house was designed to hold twelve musical tapes. The case was full when it was stolen. It had the appearance of a small suitcase. He further testified that he was watching his house while he was at Payne’s house from a chair in Payne’s front yard. During that time, Oatman saw no one other than appellant near or around his house or the field across the street.

Martin Pitts testified that he was an administrative officer with the Terrell Police Department on the date in question and that he and Officer Kerry investigated the burglary. Pitts stated that he found a fresh trail in the grass and weeds in the vacant field where someone had recently walked. The trail was plain because the surrounding weeds were “waist high.” During the search of the field Pitts discovered a .22 calibre rifle and two carrying cases. One of the cases contained ten or twelve “eight-track” musical tapes and the other contained hair clippers and other barber tools. The items were laying in close proximity to each other.

Pitts further testified that Ernest Oat-man owned the items and that they were returned to him. Pitts stated that he started searching the field and found the footprints there because Oatman had told Officer Kerry that he (Oatman) had seen someone traversing it.

Pitts confirmed on cross-examination that Levi Payne’s house was not more than one and one-half blocks from Oatman’s house. The Payne home faced west and the Oatman home faced south. Pitts stated on re-direct that the view between the two houses was not obstructed because that area was not densely populated.

Pitts testified that he did not find any type of shotgun. He also stated that he did not see any indication that anyone had been lying or hiding in the weeds where he found the footprints.

Thelma Hardin testified that she lived near the corner of Temple and Delvine Streets, about thirty-five feet from Ernest Oatman’s house. At five o’clock p. m. on the day in question she was working in her garden. As she went to a water hydrant to wash her hands she saw appellant leaving Oatman’s yard. He was walking toward Temple Street and carrying a small “case.” Hardin testified that she knew appellant personally and that she had not seen anyone else near Oatman’s house within the preceding two hours.

Hardin stated on cross-examination that she had not seen appellant go into or come out of the house. She again stated that she had observed him walking through Oat-man’s yard. Hardin further stated that Oatman directed his “car parts” business from his house and that it was not unusual for various people to come to the house.

Levi Payne testified that he was sitting with Oatman on his front lawn when he observed someone leaving the premises where Oatman lived. Payne determined that the person was carrying something or things which Payne believed were tires. Payne stated that Oatman said “that’s James Thompson” and got up and left. Payne admitted on cross-examination that he ordinarily wore glasses but was not wearing them during the incident he described.

William Kerry testified that he was a reserve police officer and that he investigated the burglary. He discovered that Oatman’s back door had been kicked in and that there were several items missing from the home. Kerry related that Oatman had told him that appellant was the burglar.

On cross-examination, Kerry testified that he noticed a distinct path through the vacant field across from Oatman’s house where the grass was knee to waist high. Kerry stated that Pitts found the stolen rifle and carrying cases in the field but did not find the two shotguns. Afterwards, Kerry and Pitts searched the field again but found nothing.

The State relies upon circumstantial evidence to sustain the conviction. 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 only to a strong suspicion or mere probability is insufficient. Young v. State, 544 S.W.2d 421 (Tex.Cr.App.1976); Indo v. State, 502 S.W.2d 166 (Tex.Cr.App. 1973). Further, in determining whether the incriminating circumstances are sufficient to support a conviction, each case must necessarily be tested by its own facts. Young v. State, supra; Moore v. State, 532 S.W.2d 333 (Tex.Cr.App.1976).

In the instant case, many incriminating circumstances connect appellant with the burglary. During the limited amount of time that the entry in Oatman’s dwelling could have been made, appellant was observed walking away from the scene and carrying a small case. No other person was observed in the area. While presence at the scene of the offense, without more, is insufficient to support a burglary conviction, it is a circumstance tending to connect one with the crime and taken in conjunction with other facts may be sufficient to show that he is guilty. Morgan v. State, 503 S.W.2d 770 (Tex.Cr.App.1974); Torres v. State, 491 S.W.2d 126 (Tex.Cr.App.1973).

In addition to appellant’s presence at the scene, there was evidence of flight, a circumstance tending to show a guilty consciousness. See Arivette v. State, 513 S.W.2d 857 (Tex.Cr.App.1974). Moreover, three items taken in the burglary were found in the field near where appellant was observed sitting and, perhaps, hiding. Viewing this evidence as a whole and in the light most favorable to the jury’s verdict, we conclude that the circumstances exclude every reasonable hypothesis except that of appellant’s guilt and that the proof is sufficient to support the verdict. Cf. Morgan v. State, supra.

In his second ground of error, appellant contends that the evidence offered at the punishment phase of the trial was insufficient to prove the prior conviction relied upon by the State for enhancement purposes. The indictment alleges, in part:

“And prior to the commission of the aforesaid offense by the said James Thompson, on the 17th day of October, 1972, in the 86th Judicial District Court of Kaufman County, Texas, in Cause No. 12,699 on the docket of said court the said James Thompson was duly and legally convicted in said last named court of a felony less than capital, to wit, Burglary, upon an indictment then legally pending in said last named court and of which said court had jurisdiction; and said conviction was a final conviction and was a conviction for an offense committed by him, the said James Thompson, prior to the commission of the offense hereinbe-fore charged against him, as set forth in the first paragraph;”

During the punishment phase, Mrs. Ray Vick testified that she was the Kaufman County District Clerk and that she was serving in the same capacity on October 17, 1972. She stated that she was present in the courthouse on that date when appellant was found guilty in Cause No. 12,699 for the felony offense of burglary. Vick testified that the 86th Judicial District Court of Kaufman County entered a judgment and sentence in that cause on October 19, 1972. She related, however, that the docket sheet showed the documents were entered on October 17. Vick further testified that the conviction became final prior to June 26, 1975, the date of the primary offense, and that the pertinent papers were sent to the Texas Department of Corrections.

Arthur Miller was the District Attorney for Kaufman County. Miller testified that he was the County Attorney for the same county on October 17,1972. He stated that he was present in court on that date when appellant pleaded guilty in Cause No. 12,699 to the offense of burglary, a noncapital felony. Miller further stated that the conviction was final prior to the offense alleged in the present indictment.

This Court has consistently held that a prior conviction is properly proved by introducing into evidence the indictment in the prior cause and the authenticated copies of the records of the Texas Department of Corrections including the certified copies of the judgment and sentence, a “mug shot”, and a set of fingerprints, and by then having a fingerprint expert testify that such set of fingerprints matched one recently taken from the defendant. See Rinehart v. State, 463 S.W.2d 216 (Tex.Cr.App.1971), and the authorities cited therein.

In Morgan v. State, 515 S.W.2d 278 (Tex.Cr.App.1974), a witness who had testified in another prosecution of the accused stated that the jury had returned a guilty verdict and assessed his punishment at three years, and another witness testified that the accused had been imprisoned. We held that this testimony was insufficient to establish a prior final conviction because there was no evidence the prior trial court had entered judgment and sentenced the accused. We reasoned that, even if the testimony proved a judgment of conviction, without a showing that the accused had been sentenced there would be no proof of the finality of that conviction.

In the instant case, however, it was established by the testimony of the Kaufman County District Clerk and of the District Attorney that the trial court had properly entered a judgment and sentence in Cause No. 12,699 wherein appellant had pleaded guilty to the offense of burglary, a felony less than capital. It was further established that the conviction had become final prior to the date of the primary offense, and that the penitentiary papers had been sent to the Department of Corrections. Since the State did not introduce the indictment or the authenticated copies of the judgment and sentence in Cause No. 12,699, the testimony of the District Clerk and District Attorney would certainly have been subject to an objection on “best evidence” grounds. However, appellant made no objection of any kind to the testimony offered by the State. In the absence of an objection, we hold that the evidence admitted at the punishment stage was competent and sufficient to prove the prior, final, noncapi-tal felony conviction in Cause No. 12,699 as alleged in the indictment.

We further hold that there is no fatal variance between the allegations in the indictment and the proof. The State alleges that the prior conviction was final on October 17, 1972, whereas the proof shows that the conviction was final on October 19, 1972, the date of the judgment and sentence. However, the District Clerk testified that the docket sheet showed, apparently incorrectly, that the judgment and sentence were entered on October 17. Appellant filed no motion to quash or exception to the indictment and there is no indication that he was misled or otherwise harmed.

No error is shown. The judgment is affirmed.


source: Caselaw Access Project

author: DOUGLAS, Judge. ROBERTS, Judge,

license: Public Domain

text:
    Ovide DUNCANTELL, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 51749.
    Court of Criminal Appeals of Texas, En Banc.
    March 15, 1978.
    Rehearing Denied April 5, 1978.

      Peter D. Williamson, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Alvin M. Titus and Jack Bodiford, Asst. Dist. Attys., Houston, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for possession of marihuana. The jury assessed punishment at seven years, probated.

At approximately three o’clock in the morning of November 12, 1971, Houston Police Officers Miller and Trumble observed appellant’s automobile slowly i enter Dowl-ing Street. Appellant was driving with his lights off although it was dark. Subsequently, he turned the lights on and accelerated to an excessive rate of speed. He was eventually clocked at 47 miles per hour in a thirty miles per hour zone.

The officers were forced to pursue appellant for several blocks before he stopped. As Trumble approached appellant’s automobile, appellant became angry and abusive and demanded to know why he was stopped. The automobile then “started to proceed forward from a dead stop” whereupon the officer removed the ignition key from appellant’s car. Appellant then struck Trumble on the head.

Both officers opened the car door and told appellant that he was under arrest. When he refused to get out of the car they pulled him out. A brief struggle ensued but the officers were able to wrestle appellant to the ground and place handcuffs on him.

Several other officers then arrived to give assistance in response to a call made by Trumble during the struggle. Miller asked Officer Bell to search the car. Bell testified that he was looking for “weapons or evidence.” He found several matchboxes on the dashboard, one of which contained a substance later identified as marihuana.

Appellant testified that he was driving only about twenty-five miles an hour. When he stopped, the officers started cursing and beating him with flashlights. While he was under arrest he told the officers that he was not drunk and that Officer Bell was not coming from the direction of appellant’s car when Bell showed appellant what he had found. On cross-examination he testified that Bell must have planted the marihuana on him.

Appellant initially complains of systematic exclusion of blacks from the jury. The thrust of his argument is that the State used its peremptory challenges to strike qualified blacks from the jury panel. The same argument was confronted and rejected in Ridley v. State, 475 S.W.2d 769, 772 (Tex.Cr.App.1972), wherein we stated:

“We hold that no systematic exclusion has been shown. To hold otherwise would in effect be abolishing our peremptory challenge practice which has always been a part of our system to help an accused as well as the State obtain an impartial jury and a fair trial.”

See also Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

Appellant next contends that the court erroneously admitted evidence of an extraneous offense. He complains of testimony given by two State witnesses that he was under the influence of alcohol when he was arrested and that he was given a breathalyzer test at the police station.

Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), is contrary to appellant’s position. In that case we stated that evidence of extraneous offenses may be admissible “[t]o show the context in which the criminal act occurred — what has been termed the ‘res gestae’ — under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence (footnote omitted). ...” 486 S.W.2d at 100. See also Williams v. State, 535 S.W.2d 637 (Tex.Cr.App.1976).

Next, appellant urges that the court improperly commented on the weight of the evidence. The court commented while Officer Miller was being cross-examined:

“Q. And you are as positive of that as you are of all of the other testimony that you have given up to this point?
“A. Yes, sir.
“Q. And then if you find out that you were not positive about that and you were wrong about that, then your testimony to this jury would be that you are wrong about everything else that you have stated? “THE COURT: That is argumentative.”

No objection was made. Thus, nothing is presented for review. Adams v. State, 165 Tex.Cr.R. 523, 309 S.W.2d 245 (1958); Sikes v. State, 500 S.W.2d 650 (Tex.Cr.App.1973).

Appellant contends the court erred in permitting the State to bolster the testimony of Officer Miller.

Miller testified on direct examination that he initially noticed appellant’s vehicle because its lights were off. Appellant attacked this testimony on cross-examination by having the officer read from his offense report. That report stated that the officers noticed appellant’s vehicle because it pulled onto the street at an excessive rate of speed. The State later introduced into evidence Miller’s relevant examining trial testimony as follows:

“Q. Do you remember being asked the question: ‘What called your attention to the defendant?’
“A. Yes, sir.
“Q. Would you read your answer?
“A. (Reading) ‘We were on routine patrol in that neighborhood, and I approached a station wagon backing onto Dowling Street headed into a southerly direction. The car seemed to halt without turning on his lights, and I did not know if he would turn on his lights or what, so I got in behind the vehicle.’
“Q. Do you remember being asked this question: ‘What else called your attention to the vehicle?’
“A. Yes, sir, I do.
“Q. Would you read your answer?
“A. (Reading) ‘When we got behind him, he seemed to speed up at a high rate of speed, and I was behind him to obtain a speed clock.’ ”

The court overruled the objection to the admission of this testimony.

Appellant attempted to impeach the witness by showing he made a prior inconsistent statement and the State then attempted to rehabilitate him by introduction of prior consistent testimony. In Kepley v. State, 167 Tex.Cr.R. 233, 320 S.W.2d 143 (1959), this Court held that where an attempt is made to impeach a witness by showing he made statements inconsistent with his trial testimony, he may be supported by showing that he made statements consistent with his trial testimony after the offense in question. See also 1 McCormick and Ray, Evidence, Section 774 (2d Ed. 1956).- No error is shown.

Appellant next urges that the search of his automobile was unlawful and that as a result the trial court erred in overruling the motion to suppress evidence.

Appellant argues that neither the traffic offenses nor the assault carried with them fruits or instrumentalities for which there was probable cause to search. Officer Miller testified that he smelled alcohol on appellant’s breath after the arrest. Miller observed “slow reaction, slurred speech, slow reaction and movement to the eyes.” When asked whether he had formed the opinion that appellant was under the influence of intoxicating liquors, the officer replied only that, in his opinion, appellant was under “a form of intoxication.”

It is common knowledge that usage of marihuana, or of a combination of marihuana and alcohol, often results in a form of intoxication. Such usage by appellant on the night of his arrest would explain his slow reactions and slurred speech as well as intoxication by alcohol only would explain them.

Therefore, Miller’s observation of appellant’s intoxicated condition, in conjunction with the evidence of flight and resistance of the arrest, established probable cause to search appellant’s automobile for alcohol or narcotics and other contraband. The marihuana found in the matchbox on the dashboard was thus secured as the result of a legal search. Cf. Attwood v. State, 509 S.W.2d 342 (Tex.Cr.App.1974); Cazares v. State, 488 S.W.2d 455 (Tex.Cr.App.1972). As this Court stated in Taylor v. State, 421 S.W.2d 403, 407 (Tex.Cr.App.1967):

“Once a bona fide stop or arrest has been made for a traffic offense, the police can make an additional arrest for any other offense unexpectedly discovered during the course of the investigation. If, while questioning a motorist regarding the operation of his vehicle, an officer sees evidence of a criminal violation in open view, or in some other manner acquires probable cause on a more serious charge he may arrest for that offense and incident thereto conduct an additional search for physical evidence. See Goodwin v. United States, 121 U.S.App.D.C. 9, 347 F.2d 793; Busby v. United States, 9 Cir., 296 F.2d 328; Riggins v. United States, D.C.Tex., 255 F.Supp. 777; United States v. Barnett, D.C.Tenn., 258 F.Supp. 455; United States v. Clark, D.C.Mont., 247 F.Supp. 958. Under these circumstances, neither the arrest nor the search is tied to the traffic charge, but rather to the violation later discovered. Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976; United States v. One Cadillac Hardtop, D.C.Wis., 224 F.Supp. 210. This is true even if no specific statement of fact of the second arrest is made. Brown v. United States, supra.” (First emphasis supplied.) See also Borner v. State, 521 S.W.2d 852 (Tex.Cr.App.1975).

In the instant case, probable cause to search appellant’s automobile developed after he had been arrested for the traffic offenses and the assault. Applying the principle enunciated in Taylor, we hold that the trial court did not err in denying the motion to suppress the seized evidence.

Appellant next complains of improper cross-examination regarding a post-arrest conversation he had with Lieutenant DeFoor at the police station. Appellant apparently told the lieutenant that he had no complaints regarding his treatment by the arresting officers.

On direct examination appellant testified that he was brutally beaten by the arresting officers. The State attempted to impeach him on cross-examination by showing that he gave a prior inconsistent statement to DeFoor. Such impeachment was proper even though appellant had not been given his Miranda warnings before he made the statement in question. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Small v. State, 466 S.W.2d 281 (Tex.Cr.App.1971). The contention is overruled.

Appellant again complains of improper impeachment.

The record shows that Lieutenant DeFoor testified about his conversation with appellant at the police station. According to the officer, appellant told him that Houston Mayor Louie Welch had conspired to have the marihuana planted on him. Appellant’s counsel objected to the admissibility of DeFoor’s testimony concerning that conversation because appellant’s Miranda rights were violated. On appeal, appellant contends that DeFoor’s testimony constituted improper impeachment. The ground of error presented on appeal must conform to the objection raised at trial. Cain v. State, 549 S.W.2d 707 (Tex.Cr.App.1977); Bouchillon v. State, 540 S.W.2d 319 (Tex.Cr.App.1976). Moreover, appellant made no objection whatsoever to the testimony of Police Inspector W. L. Williams, Police Chief Herman Short, or of Mayor Louie Welch insofar as they denied involvement in any conspiracy to have appellant arrested. Nothing is presented for review.

Appellant’s next contention is that the court admitted prejudicial testimony pertaining to a collateral matter. The record reflects:

“Q. (By Mr. Bodiford) Mayor, concerning this statement that the defendant made in your presence before the City Council of Houston, what was the statement that he made?
“A. That for every black who was killed in the streets of Houston, ten pigs would die.
“Q. Do you know who he was referring to when he spoke of pigs?
“A. Police officers.
“Q. That for every black that was killed, ten pigs would be killed. Was that his statement?
“A. That was his statement.
“Q. Did you answer him?
“A. Yes, I think we answered him.
“Q. Do you know what your answer was?
“A. We didn’t give much credibility to his threat.
“Q. Would it be advantageous to you at all to have Ovide Duncantell arrested?
“A. Politically, it was about as bad a thing that could have happened at that particular time. There was already—
“MR. CALDWELL: Your Honor, I am going to object to this as being irrelevant and immaterial.
“THE COURT: Yes, I sustain the objection.
“Q. (By Mr. Bodiford) You didn’t have any motive, then, for the arrest of Ovide Duncantell?
“A. None whatsoever.”

It was developed on cross-examination that appellant had appeared before the Houston City Council several years before to protest the shooting of a sixteen-year-old black male by a white police officer. Welch testified that he thought appellant’s statement was “more mouth than anything” and not a serious threat.

Appellant had previously testified that the arresting officers had beaten him and, after the State first developed the allegation, that the police were involved in a conspiracy to convict him for a crime he did not commit. The State, or any adverse party, may prove declarations of a witness which tend to show bias, interest, prejudice, motive, or any other mental state affecting credibility. 1 McCormick and Ray, Evidence, Sections 670 and 677 (2d Ed. 1956). See also Parsons v. State, 102 Tex.Cr.R. 524, 278 S.W. 444, 446 (1926), wherein this Court stated:

“No principle of evidence is more firmly settled than that which recognizes that the interest of a witness and the motive or animus which operates upon his mind is a subject of material inquiry. The receipt of such evidence is obviously to enable the jury to determine the weight to be given to the testimony and the credibility of the witnesses.”

The statement in the instant case disclosed appellant’s hostility toward the police and a possible motive for alleging a police conspiracy to have him “framed.” We hold that the court did not err in admitting the statement into evidence.

Appellant contends that the prosecutor improperly referred to an extraneous offense during jury argument. The record reflects:

“ . . . The testimony before you is that at the time the breathalyzer test was taken the alcoholic content of the defendant’s blood was .7. Now, the defendant told you that he had two drinks before he left on his tour at eight o’clock that night, only two drinks before eight o’clock that night. Now, Mr. McDonald, the City chemist, told you that the burn-off rate of alcohol is .2 percent per hour. If he only had two drinks before eight o’clock, with a burn off rate of two percent per hour, there wouldn’t have been one indication at all — ”

For the reasons previously stated, the evidence regarding appellant’s intoxication at the time of his arrest was properly before the jury. Albrecht v. State, supra; Williams v. State, supra. No error in the argument is shown.

We further observe that the objection made at trial was that there was no evidence as to the percentage of alcohol in appellant’s drinks. Such objection was not sufficient to bring the trial court’s attention to the error now complained of on appeal. Cain v. State, supra; Bouchillon v. State, supra.

Appellant again complains of improper jury argument. The record reflects:

“MR. BODIFORD: I ask that you recall his statement to the City Council. For every black killed, there will be ten pigs die."

This was in evidence. No objection was made to the argument now challenged. Thus, nothing is presented for review. Rodriguez v. State, 530 S.W.2d 944 (Tex.Cr.App.1975); Jackson v. State, 516 S.W.2d 167 (Tex.Cr.App.1974).

Appellant’s final contention is that the prosecutor’s jury argument at the punishment phase of the trial was improper. The record reveals that appellant was referred to as a “troublemaker” and as a “freeloader.”

The State had established during the guilt phase of the trial that appellant had assaulted the arresting officers and that he had once threatened the Houston Police Department with violence. The prosecutor’s reference to him as a “troublemaker” was a reasonable deduction from the evidence. Cf. Cain v. State, supra.

With regard to the argument that appellant was a “freeloader”, the State contends that such argument was a reasonable deduction from the evidence because appellant was going to school at the time and was apparently unemployed. We cannot agree that this type of argument is justified under these circumstances, but we find that the error was harmless.

No reversible error is shown. The judgment is affirmed.

YOLLERS, J., not participating.

ROBERTS, Judge,

dissenting.

This case is before us pursuant to an out-of-time appeal granted to appellant by per curiam opinion in No. 49,828 on April 2, 1975.

At 3:30 a. m. on November 12, 1971, Houston Police Officers Miller and Trumble noticed appellant, then a candidate for the Houston City Council, entering Dowling Street in his car with his headlights out. Appellant turned his lights on but then increased his speed to forty-seven miles-per-hour in a thirty mile-per:hour zone. After pursuing appellant for more than ten blocks, the officers finally stopped him and pulled up beside his car. Appellant resisted removal from his automobile and, after a struggle, the officers subdued and handcuffed him on the ground outside his car. Miller testified that appellant appeared to be “under a form of intoxication.”

In response to a call for assistance, other officers began arriving at the scene almost immediately. Officer Bell, in response to Miller’s request, conducted a search of the interior of appellant’s car, finding a penny matchbox containing marihuana on the driver’s side of the dashboard. Bell testified that this search commenced while appellant was still lying handcuffed face down on the ground with Miller and Trum-ble kneeling beside him. Miller testified that the search was conducted while appellant sat handcuffed in the back of his patrol car, with both officers standing next to him.

Appellant contends, among other things, that the search of his car was unlawful and that the State improperly impeached his testimony.

I cannot agree that the warrantless search which led to the discovery of the marihuana was constitutional, and I would reverse on this ground. I observe at the outset that this search cannot be justified as an automobile search based on probable cause and exigent circumstances. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Scott v. State, 531 S.W.2d 825 (Tex.Cr.App.1976); Stoddard v. State, 475 S.W.2d 744 (Tex.Cr.App.1972); Wilson v. State, 511 S.W.2d 531 (Tex.Cr.App.1974). Neither the traffic offenses nor the assault carried with them fruits or instrumentalities for which there was probable cause to search. Thomas v. State, - S.W.2d - (No. 50,941, delivered March 10, 1976 and now pending on rehearing). The liquor which Officer Miller smelled on appellant’s breath and his apparent intoxicated condition might have afforded cause to search for liquor. Thompson v. State, 398 S.W.2d 942 (Tex.Cr.App.1966); Adair v. State, 427 S.W.2d 67, 74 (Tex.Cr.App.1967) (dissenting opinion). But a search is reasonable only if its scope is limited to the purpose which justified its initiation. Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975); Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1971). A search for the purpose of discovering liquor should not extend into a matchbox. Compare Pace v. Beto, 469 F.2d 1389 (5th Cir. 1972). Nor did probable cause to search develop after appellant had been arrested and subdued. Cf. Taylor v. State, 421 S.W.2d 403 (Tex.Cr.App.1967); Attwood v. State, 509 S.W.2d 342 (Tex.Cr.App.1974); Borner v. State, 521 S.W.2d 852, 856 (Tex.Cr.App.1975).

Therefore, the search can only be upheld as a protective search for weapons or as a search incident to an arrest. It is well established that officers are justified in conducting a limited search for weapons after an investigatory detention, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970); or even after an arrest for a routine traffic offense if the officer has reason to believe that he is in danger of bodily harm or that the suspect is armed or dangerous. Lewis v. State, 502 S.W.2d 699 (Tex.Cr.App.1973); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974); Borner v. State, supra at 855; Wallace v. State, 467 S.W.2d 608 (Tex.Cr.App.1971). In this case, the appellant had already been either subdued and handcuffed on the ground or placed in the back of the patrol car, with two officers guarding him, before the car search by a third officer began. Appellant was scarcely in a position to harm anyone, even if he could have lunged back into the car for a weapon. Cf. Imhoff v. State, 494 S.W.2d 919 (Tex.Cr.App.1973). The officers testified at trial that they were not in fear of their lives at the time the search was conducted. Beck v. State, 547 S.W.2d 266 (Tex.Cr.App.1976); Keah v. State, 508 S.W.2d 836 (Tex.Cr.App.1974); cf. Wood v. State, supra. Furthermore, it is hard to imagine a dangerous weapon being concealed in a penny matchbox, although this was the justification advanced for the search by the officers. Pace v. Beto, supra. I conclude, therefore, that the car search cannot be justified as necessary for the protection of the arresting officers.

The exception to the warrant requirement for searches incident to arrest, however, is broader than the protective Terry-type search. For one thing, its objects can include destructible evidence as well as weapons. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). The search of the person permitted by United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), after a routine traffic arrest, was much broader than that permitted by Terry v. Ohio, supra, even extending into a crumpled cigarette package. And the scope of the search incident to arrest extends to areas under the arres-tee’s immediate control. Chimel, supra; Preston, supra. Clearly, the search could not extend to the locked glove compartment or the trunk of the car, since an arrestee could hardly reach these areas quickly and obtain a weapon or destroy evidence. Fry v. State, 493 S.W.2d 758, 761 (Tex.Cr.App.1972); Wilson v. State, 511 S.W.2d 531 (Tex.Cr.App.1974) (dissenting opinion, fn. 2).

There can be no question that appellant was under arrest at the time of the search. In contrast to the situations in Beck, supra, Thomas, supra, and Wilson, supra, he was not merely being detained during the writing of a traffic citation. The question becomes, then, was the scope of the search reasonably related to its purpose? The cases make it clear that the area searched must be under the arrestee’s immediate control, and be for the purpose of preventing him from obtaining weapons or destroying evidence. Appellant was either face down on the ground with his hands handcuffed behind him or he was sitting in the back of the patrol car in handcuffs when the search began. At this time, Officers Miller and Trumble were either both kneeling beside the appellant on the ground or standing between his seat in the patrol car and the car being searched. There is no way the appellant could have reached a weapon or evidence in his car, since the car was no longer under his immediate control. Beck, supra; and see Ghimel, supra. I would therefore hold that the search was not incident to appellant’s arrest.

From all of the foregoing, I conclude that the search was unlawful and hence in violation of the Fourth Amendment of the United States Constitution as well as Art. I, Sec. 9 of the Texas Constitution. It follows that the trial court erred in failing to suppress the seized evidence and that the judgment should be reversed for this reason.

PHILLIPS, J., joins in this dissent.

      . Neither can I agree that the search was legitimate as an “inventory search” or that the search was harmless because a later inventory might have been allowable. See South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Robertson v. State, 541 S.W.2d 608 (Tex.Cr.App.1976). There is simply nothing in this record to show that an inventory search was undertaken or that such searches were a part of routine police practice. See Opperman, supra, 428 U.S. at 366, 369, 375-376, 96 S.Ct. 3092.


author: TOM G. DAVIS, Judge.

text:
    Bernice MAYS, Appellant, v. The STATE of Texas, Appellee.
    No. 54200.
    Court of Criminal Appeals of Texas, En Banc.
    March 22, 1978.

      Ken J. McLean, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Sam D. Adamo, Asst. Dist. Attys., Houston, for the State.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for murder. Punishment was assessed by the jury at twenty years.

At the outset, appellant contends that the court erred over her timely objection in failing to charge the jury that “the defendant had the right to continue to shoot until the danger or apparent danger ceases. The danger being viewed from the defendant’s standpoint at the time of the difficulty.”

The testimony of appellant reflects that she and the deceased had been living together at 3022½ Lelia in Houston since sometime in 1971. Appellant stated that on December 25, 1972, she and the deceased spent the day visiting two of her sisters and going to bars. Appellant and the deceased argued throughout the day. After they returned home a fight ensued, appellant relating that the deceased “knocked me from the door into the living room clean across the couch onto the coffee table.” The deceased then got in bed. According to appellant, the deceased was facing the wall. The appellant “got in the bed and I laid down facing his back.” Deceased then turned on his left elbow in a “leaning position” with a gun in his hand and said, “I am tired of your b_s_, tonight it is going to be me or you.” Appellant jumped and the gun fell to the bed. Both the deceased and appellant reached for the gun. Appellant got the gun, “pulled the trigger twice and he said oh’ and laid back down just like he was.” In response to a question on direct examination about the period of time involved from the time the deceased raised up until “the gun went off,” appellant responded, “. . . just happened all of a . in a quick minute, it looked like to me, I just thro wed the pistol down and called the police.”

The court in its charge instructed the jury on the law of self-defense and murder without malice. Appellant’s objection to the court’s charge for failure to instruct the jury on the right of appellant to continue to shoot until the danger or apparent danger ceases was overruled, and this action by the court forms the basis of the ground of error.

In McElroy v. State, Tex.Cr.App., 455 S.W.2d 223, the rule regarding such charge set forth in Goodman v. State, Tex.Cr.App., 114 S.W.2d 885, was quoted with approval, where it was stated:

“the refusal to so charge was not error when there was (1) no evidence that the defendant fired shots after the deceased fell, (2) no evidence that the combatants changed position and (3) the shots were fired without any noticeable intermission, it being a continuous and rapid transaction.”

There is no evidence that there were any shots fired after the deceased fell or “laid back down just like he was” on the bed, nor is there any showing that after the appellant fired the two shots that the parties materially changed positions, and there is no evidence of continuing danger. As in McElroy, it is undisputed that the appellant fired the shots in rapid succession. We find that the court did not err in refusing to give the requested charge.

Appellant next contends that the trial court erred “in allowing the State’s expert witness to give his opinion as to the relative position of the parties at the time of the shooting.”

The record reflects that the State called Dr. Giles Sheldon Green as a witness. Green was employed as a pathologist by the Harris County Medical Examiner’s Office. The appellant stipulated to Dr. Green’s qualifications as an expert.

Dr. Green performed the autopsy on the deceased on December 26, 1972. This examination revealed that the deceased had suffered two gunshot wounds. One of these wounds was to the head, with the point of entry being in the area behind the right ear. The other wound was to the chest. This shot entered the upper left portion of the chest, passed directly through the heart, and exited from the left side of the back.

Before Green testified the jury had heard the testimony of John M. Donovon, one of the Houston Police Department homicide detectives. Donovon testified that he found the deceased’s body lying on its left side on a bed. Donovon’s investigation further revealed that “directly underneath the complainant’s body was a slug that had gone through the back, through his front and through the bed underneath on the floor.”

During the direct examination of Dr. Green, the following exchange occurred:

“Q Assume for a moment, if we may, Doctor, that the deceased was found in this position on his side, how do you account for the — and he is not moved, he received these two wounds, one to the chest from the front and one to the head from the back, is there any way you can account for his position in that manner?
“MR. McLEAN [defense counsel]: I object to speculation. If he has an opinion he has seen under similar conditions, I don’t object. But speculation, him not being there, is outside the scope of his expertise.
“THE COURT: ... Is that an opinion based on your professional experience?
“A Well, let’s say the opinion would be a logical reconstruction of events, though we must leave open the possibility other things could have happened.
“THE COURT: Do you have your opinion based on your personal experience?
“A Yes, sir, that is correct.”

Green then proceeded to testify that “if that bullet which exited the left side of his back then continued through the bed and onto the floor, he must without doubt have been on his back at that point.” In order to explain the deceased’s change of position between the two shots, Green testified that “even a through-and-through wound of the heart, though it may well be fatal, is not going to stop the brain from functioning at that instant, and he could have himself rolled towards the wall.”

We first note that appellant’s objection appears to be insufficient to preserve the error in question. Appellant’s attorney objected as follows: “I object to speculation. If he has an opinion he has seen under similar conditions, I don’t object.” In response to a question from the court, Green then testified that his opinion was based on “personal experience.” By determining that Green’s opinion was based on his professional experience, the trial judge appears to have granted appellant all of the relief that he sought.

Assuming that objection is properly preserved, we find there was no error in the admission of Dr. Green’s testimony. Appellant refers us to several decisions of this Court where we have held testimony from witnesses not present at the time of a homicide as to the relative position of the parties at the time inadmissible. See MeCullers v. State, 125 Tex.Cr.R. 357, 67 S.W.2d 879; Williams v. State, 30 Tex.App. 447, 17 S.W. 1971.

There are two justifications advanced in support of this rule. First, it is said that allowing such testimony invades the province of the jury. See Boles v. State, 108 Tex.Cr.R. 204, 299 S.W. 407. It is also said that such testimony is outside the knowledge of even expert witnesses. See Boles v. State, 109 Tex.Cr.R. 471, 5 S.W.2d 509 (“The relative position of the parties at the time of the shooting could not properly be determined by either a non-expert or expert witness.”).

The doctrine which prohibited testimony that would invade the province of the jury “is and has been long dead” as a proposition of law. Boyde v. State, Tex.Cr.App., 513 S.W.2d 588. This Court found the rule was no longer viable in Hopkins v. State, 480 S.W.2d 212. As we noted in Hopkins, we had long allowed many types of testimony that spoke directly to an “ultimate issue” in the case. Among the examples we referred to were: (1) medical testimony as to cause of death; (2) expert ballistics testimony identifying bullets as having been fired from a particular gun; and (3) expert testimony on the identity of fingerprints. Opinion testimony is required to prove intoxication. Kelley v. State, Tex.Cr.App., 529 S.W.2d 554; Padillo v. State, Tex.Cr.App., 420 S.W.2d 712.

It is no more an invasion of the province of the jury for an expert pathologist to express his professional opinion on the position of a body at the time a shot was fired than it is to allow all of the various types of testimony listed above.

As to the contention that such testimony is outside the range of expertise of expert witnesses, we hold that whatever validity this premise may have had at one time, it is no longer valid. So long as a person has been qualified as an expert in this field and is expressing an opinion based upon his professional expertise, we find no reason why such evidence should be excluded.

To the extent that our prior opinions have held that it was improper to admit testimony from a properly qualified expert witness as to the relative positions of the parties at the time of a homicide unless he was actually present at the time, they are hereby overruled. The lack of presence at the time of the homicide goes to the weight rather than the admissibility of the evidence.

In Hopkins v. State, supra, we set out the following criteria for expert opinion testimony:

“. . . (1) He must be competent and qualified to testify. (2) The subject must be one upon which the aid of an expert opinion will be of assistance to the jury. (3) His testimony may not state a legal conclusion.”

After reviewing the evidence in the instant case, we find all three of the criteria have been met. No error is shown in allowing Dr. Green to testify as he did.

Lastly, appellant complains that the court erred “by allowing prejudicial jury argument by the prosecutor.”

The record reflects the following complained-of argument occurred during the prosecutor’s argument at the punishment stage of the trial:

“Can you honestly give her probation and say to Harris County, T will dump it in the Judge’s lap.’ What happens if she cuts loose again with someone else, gets in an argument and says, ‘Hey, I got away with it once; why not again?’ Can you look at that family then and say, T am sorry’?
“MR. McLEAN: That is not evidence. Talking about the future. It is speculative.
“THE COURT: Overruled.”

The appellant had argued as follows:

“Then you have to think about the person. We don’t know Bernice Mays sitting over here; if it was someone else you don’t absolutely know for certain what they would do if granted probation, because after all, none of us are fortune tellers, we can’t look in the future. But you do know one thing. If she does have a sentence within the realm of probation, if she is granted probation, if she doesn’t live up to her probation, you don’t have to have another jury to come in. All you have to do is go before the Court and present what evidence there may be she has not lived up to probation, and the Judge has the right to revoke. So really how can twelve people really lose?”

Appellant had injected the subject of what the jury had to lose if they granted her motion for probation and appellant failed to live up to it. We find the complained-of argument was in response to the argument of opposing counsel. See Alejandro v. State, 493 S.W.2d 230. No error is shown.

The judgment is affirmed.

      . The conviction resulting from the first trial in which punishment was assessed at ten years was reversed by this Court in Mays v. State, 513 S.W.2d 846, for failure of the trial court to charge on murder without malice.

      . We note that while appellant is complaining about the State eliciting testimony from Green in regard to the position of the deceased when the shots were fired, he tried to elicit exactly this same type of testimony from Donovon on cross-examination:
      “Q At the time the shot was fired, the body must have been raised up to some extent? “A No, sir.
      “Q You weren’t there, so we have to guess, but wouldn’t the body really have been leaning on its left arm when he was shot?
      “A Pardon me?
      “Q I say the actual position at the time the shot was fired, like I say, we don’t know, we weren’t there, we only know what you found later.
      “He would have been propped up on this left arm to get the shot to go into his body very extensively. In other words, his side would have been off the bed some?
      “A Not necessarily, no, sir. The way he is laying, the hole is right — the hole is above the cover.”

      . We point out that our abandonment of the invasion of the province of the jury rule does not make opinion evidence admissible as to legal conclusions. For example, it is improper to allow any opinion evidence as to the guilt or innocence of a criminal defendant. Boyde v. State, Tex.Cr.App., 513 S.W.2d 588; Spaulding v. State, Tex.Cr.App., 505 S.W.2d 919.

      . Our holding today only applies to properly qualified expert witnesses. It is still improper for a non-expert witness to give an opinion of bodily position unless he was present at the shooting.

      . The following is a partial listing of the cases which are overruled insofar as they hold an expert witness cannot testify as to bodily position at the time of a homicide: Bailey v. State, Tex.Cr.App., 365 S.W.2d 170; Craig v. State, 171 Tex.Cr.R. 256, 347 S.W.2d 255; Ramsour v. State, 165 Tex.Cr.R. 481, 308 S.W.2d 56; Villareal v. State, 140 Tex.Cr.R. 675, 146 S.W.2d 406; McCullers v. State, 125 Tex.Cr.R. 357, 67 S.W.2d 879; Davis v. State, 114 Tex.Cr.R. 72, 24 S.W.2d 417; Boles v. State, 109 Tex.Cr.R. 471, 5 S.W.2d 509; Boles v. State, 108 Tex.Cr.R. 204, 299 S.W. 407; Bennett v. State, 95 Tex.Cr.R. 70, 252 S.W. 790; Pearson v. State, 56 Tex.Cr.R. 607, 120 S.W. 1004; Cavaness v. State, 45 Tex.Cr.R. 209, 74 S.W. 908; Morton v. State, 43 Tex.Cr.R. 533, 67 S.W. 115; Hardin v. State, 40 Tex.Cr.R. 208, 49 S.W. 607; Blain v. State, 33 Tex.Cr.R. 236, 26 S.W. 63; Champ v. State, 32 Tex.Cr.R. 87, 22 S.W. 678; Coyle v. State, 31 Tex.Cr.R. 604, 21 S.W. 765; Williams v. State, 30 Tex.App. 429, 17 S.W. 1971; Thompson v. State, 30 Tex.App. 325, 17 S.W. 448.


author: ROBERTS, Judge.

text:
    Thomas Earl DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 54575.
    Court of Criminal Appeals of Texas, En Banc.
    March 22, 1978.

      Ward Casey, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, Jack Heinemann, Jerry Buckner and Howard M. Fender, Asst. Dist. Attys., Fort Worth, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from an order of the court revoking the appellant’s probation. The trial judge found that the appellant had violated a condition of his probation, and sentenced the appellant to three years in the Texas Department of Corrections.

The appellant contends in one of his three grounds of error that the trial judge abused his discretion in revoking the appellant’s probation because the evidence was insufficient. We reverse.

On January 14, 1974, the appellant pleaded guilty to the offense of burglary. The appellant was assessed a three-year probationary term. One of the conditions of the appellant’s probation was that he “d. [rjeport to the Adult Probation Officer of Tarrant County, Texas, as directed: on the 25th day of January, 1974, and on the 25th day of each month thereafter, during probation.”

On December 12, 1975, the State filed its first amended motion to revoke probation, and alleged that:

“1. The Defendant, Thomas Earl Davis, was ordered by the Court to report to the Adult Probation Officer of Tarrant County, Texas, as directed: on the 25th day of January, 1974, and on the 25th day of each month thereafter during probation. The defendant failed to report on the 25th day or any other day in the months of June, July, August, September, October, November, December, 1974; January, February, March, April, May, June, July, August, September, October, November, 1975. . ”

On November 4,1976, a hearing was held on the State’s first amended motion to revoke. At the close of that hearing, the trial judge found that the appellant had violated a condition of his probation by failing to report to the adult probation officer as alleged in the first amended motion to revoke.

The appellant’s first contention challenges the sufficiency of the evidence.

The testimony reveals that the appellant was instructed to report to Gordon Shar-ratt, an adult probation officer for Tarrant County. The appellant reported to Shar-ratt from January 1974 until May 1974. Sharratt testified that the appellant failed to report to him during the months of June 1974 to November 1975.

On cross-examination, the following occurred:

“Q [DEFENSE COUNSEL] The policy and the procedure up there in the probation office is that when a defendant is assigned a probation officer to report to if he comes in there to report and his probation officer is out of pocket — if he’s in court like you are right now or has gone to visit some place or look into an employment situation — then the probationer makes his report to some other probation officer, is that right?
“A [MR. SHARRATT] To another officer assigned to that court.
“Q [DEFENSE COUNSEL] All right. Were there other officers assigned to Criminal District Court?
“A [MR. SHARRATT] We now have five.”

Apparently an insufficient predicate was laid to introduce business records to reflect whether the appellant had reported to any other probation officer during the period in question. This evidence was excluded by the trial judge. Without passing on the admissibility of the records in this case, we note that properly authenticated records of a probation department may be introduced into evidence. The record is devoid of any evidence relative to whether the appellant reported to any officer other than Sharratt during the months in question.

We find that the evidence fails to support the trial judge’s finding, and conclude that the trial judge abused his discretion in revoking the appellant’s probation. Hartsfield v. State, 523 S.W.2d 683 (Tex.Cr.App.1975).

In light of our disposition of the case, we need not reach the appellant’s other contentions. The judgment is reversed.

      . The State had filed an original motion to revoke on September 12, 1974, but apparently did not prosecute that motion.

      . The first amended motion to revoke alleged two other grounds, but the State presented no evidence regarding them, and the trial judge did not rely on them to revoke the appellant’s probation.

      . The record reflects that as of January 1974 there were four adult probation officers for the court in which the appellant was convicted.


author: PHILLIPS, Judge. VOLLERS, Judge,

text:
    Ex parte Joe Ben CANADY.
    No. 55503.
    Court of Criminal Appeals of Texas, En Banc.
    March 22, 1978.
    No appearance for appellant.
    Jerry Spencer Davis, Dist. Atty., Green-ville, for the State.
   OPINION

PHILLIPS, Judge.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.

On May 14,1970, petitioner was convicted by a jury of robbery with firearms in Cause No. 10,197 in the 196th Judicial District Court of Hunt County. Punishment was assessed at 45 years’ imprisonment, and the appeal was not perfected.

Petitioner’s application alleges the indictment upon which he was convicted is fundamentally defective, an issue which may be properly raised in a post conviction writ of habeas corpus. Ex parte Garcia, Tex.Cr.App., 544 S.W.2d 432; Ex parte Lopez, Tex.Cr.App., 549 S.W.2d 401; Ex parte Fontenot, Tex.Cr.App., 550 S.W.2d 87.

The indictment alleges, in pertinent part, that on or about February 19, 1970, petitioner:

“did then and there unlawfully and wil-fully make an assault upon the person of Pauline Taylor hereinafter styled injured party, and did then and there by the said assault and by violence to the said injured party, and by then and there putting the said injured party in fear of life and bodily injury and by then and there using and exhibiting a fire-arm, to-wit: .32 caliber revolver did then and there fraudulently take from the person and possession of said injured party, corporeal personal property then and there belonging to said injured party; without the consent and against the will of said injured party, and with the fraudulent intent then and there on the part of said defendant to deprive the said injured party of the value of the same, and with the intent to appropriate the same to the use and benefit of said defendant.”

Specifically, petitioner contends the description of the property taken as “corporeal personal property” is insufficient. In Mankin v. State, Tex.Cr.App., 451 S.W.2d 236, the defendant’s amended motion for rehearing raised, for the first time, the contention that the indictment was fundamentally defective because the property taken was described only as “corporeal personal property”. In upholding the defendant’s contention, this Court said:

“While the rule as to sufficiency of an indictment to advise the accused with reasonable certainty of the accusation he is called upon to meet at the trial is not applied in later decisions of this court as strictly as it once was, the common law rule that robbery is but an aggravated form of theft, and that in charging the offense or [sic] robbery, as in charging larceny or theft, a description of the property taken is essential has been uniformly applied. Wilson v. State, 171 Tex.Cr.R. 391, 356 S.W.2d 928; Holland v. State, 110 Tex.Cr.R. 384, 10 S.W.2d 561, and cases cited.
“The indictment which is found in the record on appeal contains no description of the corporeal personal property alleged to have been taken in the robbery.
“Wilson v. State, supra, is directly in point and supports appellant’s contention that the indictment herein is fundamentally defective and the conviction thereon cannot stand.” Mankin, supra, at page 241.

The dissent in this case cites and relies upon American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598, to stand for the proposition that a property description will not be deemed defective absent a motion to quash unless “the defect be of such a degree as to charge no offense . . . .” American Plant Food Corporation v. State, supra, at 604. We agree with this holding. However, the dissent states that a description of “corporeal personal property” is sufficient to charge an offense absent a motion to quash. With this we cannot agree.

In the recent case of Rhodes v. State, 560 S.W.2d 665 (delivered January 18, 1978), a case not cited by the dissent, we specifically interpreted our holding in American Plant Food with regard to property descriptions under Article 21.09, V.A.C.C.P. In Rhodes, we stated:

“This matter of the degree of deficiency referred to in general terms in American Plant Food is equally appropriate regarding claimed deficiencies in the description of property under Art. 21.09, supra. This line of demarcation between defects of substance and those of form explains why some descriptions of property are fundamentally defective and others must be challenged by motion to quash. ... An examination of the two cases decided after American Plant Food demonstrates proper application of these principles. These cases are Willis v. State, 544 S.W.2d 150 and Moore v. State, 532 S.W.2d 333.
“In Moore, supra, we reversed because the trial court ‘erred in failing to grant the motions to quash the indictment’ for felony theft in which the property was described as, ‘barbed wire of the value of over fifty dollars, the same then and there being the corporeal personal property of and belonging to Morris Peterson.’
“In Willis, supra, a theft indictment was held fundamentally defective in the absence of a motion to quash. The property was described simply as ‘merchandise.’
“ ‘Merchandise’ is so general and non-descriptive as to constitute no allegation of the property at all. It could as well have alleged merely ‘property.’
“Consequently, we hold that a defect in the description of property under Art. 21.09, supra, must be raised by a motion to quash, and may not be raised for the first time on appeal, unless the description is so deficient as to be no description at all and to constitute a jurisdictional defect, as was the case in Willis, supra.

It is apparent that “merchandise” is a more specific description than “corporeal personal property”; and yet, we have held “merchandise” a fatally defective description. We adhere to our decision in Rhodes v. State, supra, and Willis v. State, supra. For these reasons, we find the property description in the instant indictment so deficient as to be no description and hold the indictment fundamentally defective.

The relief is granted; the conviction in Cause No. 10197 is set aside and the indictment is ordered dismissed.

VOLLERS, Judge,

dissenting.

The majority holds that a description of property allegedly taken in a robbery with firearms indictment which reads “corporeal personal property” is “fundamentally” defective and therefore properly challenged for the first time by writ of habeas corpus. I disagree.

In American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598 (1974) it was pointed out that a defect in the State’s pleading for failure to allege facts sufficient to bar a subsequent prosecution for the same offense and sufficient to give the defendant notice of what he is charged with would not render an indictment or information void or insufficient to support a conviction, but merely subject it to being vulnerable to an exception as to form under Article 27.09(2) and 21.21(7) C.C.P. It was also noted that unless the deficiency under Article 21.21(7) be in such degree as to utterly fail to charge that an offense against the law was committed by the defendant, then it is objectionable only as to form and not as to substance. That appears to be precisely the issue which is presented here.

In this case the only defect alleged in the pleading is that the description of the property taken in the robbery was “corporeal personal property.” It should be noted that the provisions of Article 1408, Vernon’s Ann.P.C. (1925), in effect at the time of this offense, prohibit the taking from the person or possession of another by violence or threats “any property” with intent to appropriate the same. From an examination of this statute, it is clear that the element of taking property is covered by the allegation of the taking of any property, and the description of the property goes only to notice and sufficiency of the pleading. As pointed out in American Plant Food, supra, this must be raised by a motion to quash the indictment.

The majority relies on Wilson v. State, 171 Tex.Cr.R. 390, 356 S.W.2d 928 (1961) for its determination that the robbery indictment before us which describes the property taken as “corporeal personal property” is “fundamentally” defective. However, that case was before this Court on direct appeal and although the opinion does not recite whether such insufficiency was raised at the trial, the reason such description was found defective, as stated by this Court, was that “without a further description, the accused was not put on notice as to what he was alleged to have taken . . . 356 S.W.2d 928 at 929. (Emphasis added.)

The majority also relies upon Mankin v. State, 451 S.W.2d 236 (Tex.Cr.App.1970) as authority for its determination here. Notwithstanding the erroneous conclusion in Mankin at page 241 that “Wilson v. State . is directly in point,” this Court recited that the insufficiency of “corporeal personal property” as a description in a robbery indictment is that such fails “ . . .to advise the accused with reasonable certainty of the accusation he is called upon to meet at the trial . . . .” 451 S.W.2d 236 at 241. (Emphasis added.)

It should also be noted that insufficient property description of the robbery indictment has also been determined by this Court to be inadequate for the reason that it fails “ . . . to render available in the event of a second prosecution, a plea of once in jeopardy." Byrd v. State, 456 S.W.2d 931 at 932 (Tex.Cr.App.1970). (Emphasis added.)

Mankin v. State, supra, was decided prior to American Plant Food and is in direct contravention of the rule laid down in American Plant Food.

Failure of the defendant to object by motion to quash as to insufficiencies regarding notice and sufficiency of the pleading as a basis for a plea in jeopardy illustrates that he has found the charge adequate. “He may not wait to see whether the jury will acquit him, and then, upon an adverse verdict, claim for the first time that he had no notice or that the charge will not bar a subsequent conviction. Only if the defect be of such a degree as to charge no offense against the law, and thereby be void, will the exception to the substance be considered for the first time (after trial).” American Plant Food, supra.

I take no issue with the finding of the majority that the property description contained in the robbery indictment before us is insufficient. The appropriate objection to the property description, as stated in the majority opinion, is the failure to “ . . . advise the accused with reasonable certainty of the accusation he is called to meet at trial. . . .” The majority asserts neither that the indictment before us fails to allege the constituent elements of robbery, nor that it utterly fails to charge that an offense against the law was committed by the petitioner. Yet the majority labels the error “fundamental.” Such a conclusion is in error. The determination of fundamental defect in Mankin, supra, was apparently based on the gratuitous use in Wilson of the description of “fundamental” defect to describe the insufficiency of the property description in a robbery indictment. Because a motion to quash was improperly overruled by the trial court in Wilson, the use of the word “fundamental” was not merely gratuitous, it was erroneous.

The erroneous conclusion of Mankin that an indictment such as we have in this case is fundamentally defective is in direct conflict with the conclusion of this Court in American Plant Food, supra. Although American Plant Food in effect overruled Mankin, we should do so specifically here. The allegation of “corporeal personal property” alleges the necessary element in question, to-wit: a taking of property. It merely falls short of a sufficient description where there is a pretrial objection to such a description. This insufficiency was waived by the defendant’s failure to make a pretrial motion to quash. It cannot be said that this indictment charges “no offense against the law” or that it “fails to allege the constituent elements of the offense.” It is therefore not a void indictment. Such an indictment is not subject to collateral attack such as presented in this writ application and I would deny the writ.

DOUGLAS, J., joins.

      . A review of the original record on appeal reveals that a proper motion to quash was filed on behalf of Wilson, excepting to the failure of the indictment to describe the property taken with more specificity. The motion to quash was improperly overruled by the trial court, thus this Court correctly reversed on appeal.

      . Because the objection to the property description by motion to quash was erroneously overruled by the trial court in Wilson, that case was procedurally inapposite to making the determination of error in Mankin where objection to “corporeal personal property” as a description in the robbery indictment was raised for the first time on amended motion for rehearing. See, n.l, supra.

      . “The . . . two requirements that the State’s pleading must allege facts (1), sufficient to bar a subsequent prosecution for the same offense and (2) sufficient to give the defendant notice of precisely what he is charged with . . . are . . grounds for an exception to the form . . . , and not for an exception to the substance . Clearly any such defect would not render the information void.or insufficient to support a conviction.” 508 S.W.2d 598 at 603. (Emphasis added.)

      .It should be noted that in his Original Application for Writ of Habeas Corpus the petitioner recites as reasons for his present first objection to the indictment of this cause that “ . the description must be sufficient to inform the accused of the property in question and to render available in the event of a second prosecution, a plea of once in jeopardy.”


author: ODOM, Judge.

text:
    Ex parte Victor BRIONES.
    No. 56965.
    Court of Criminal Appeals of Texas, Panel No. 2.
    March 22, 1978.
    Tomas Garza, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty. and Clovis Michael Ward, Asst. Dist. Atty., Lubbock, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is an appeal from an order in a habeas corpus proceeding denying bail for petitioner pending the appeal of his conviction for robbery.

Appellant was convicted of robbery on October 3,1977, and a jury assessed punishment at thirteen years. Subsequently notice of appeal was given and appellant filed an application for habeas corpus requesting bail be set pursuant to Article 44.04, V.A.C. C.P, The court, after return was made on the writ, heard the application and refused to set bail on authority of Article 42.09, V.A.C.C.P. Appeal was taken from that denial of relief.

Appellant contends the trial court erred in not following the provisions of Art. 44.04, supra, and the State responds by relying on Art. 42.09, supra. The issue before us is one of statutory construction and harmonization. The statutes under examination provide:

“Art. 42.09. Indeterminate sentence; commencement of sentence and delivery to place of confinement
“Sec. 2. Except as provided in Sections 3 and 4, a defendant shall be delivered to jail or to the Department of Corrections when his sentence to imprisonment is pronounced, or his sentence to death is announced, by the court. The defendant’s sentence begins to run on the day it is pronounced, but with all credits, if any, allowed by Article 42.03.
“Sec. 3. If a defendant appeals his conviction and is released on bail pending disposition of his appeal, when his conviction is affirmed, the clerk of the trial court, on receipt of the mandate from the appellate court, shall issue a commitment against the defendant. The officer executing the commitment shall endorse thereon the date he takes the defendant into custody and the defendant’s sentence begins to run from the date endorsed on the commitment. The Department of Corrections shall admit the defendant named in the commitment on the basis of the commitment.
“See. 4. If a defendant is convicted of a felony and sentenced to death, life, or a term of more than ten years in the Department of Corrections and he gives notice of appeal, he shall be transferred to the Department of Corrections on a commitment pending a mandate from the Court of Criminal Appeals.
“Sec. 5. If a defendant is convicted of a felony and his sentence is a term of ten years or less and he gives notice of appeal, he shall be transferred to the Department of Corrections on a commitment pending a mandate from the Court of Criminal Appeals upon request in open court or upon written request to the sentencing court. Upon a valid transfer to the Department of Corrections under this section, the defendant may not thereafter be released on bail pending his appeal.”
“Art. 44.04. Bond pending appeal
“(b) The defendant may not be released on bail pending the appeal from any felony conviction where the punishment exceeds 15 years confinement but shall immediately be placed in custody and the bail discharged.
“(c) Pending the appeal from any felony conviction where the punishment does not exceed 15 years confinement, the trial court may deny bail and commit the defendant to custody if there then exists good cause to believe that the defendant would not appear when his conviction became final or is likely to commit another offense while on bail, permit the defendant to remain at large on the existing bail, or, if not then on bail, admit him to reasonable bail until his conviction becomes final. The court may impose reasonable conditions on bail pending the finality of his conviction. On a finding by the court on a preponderance of the evidence of a violation of a condition, the court may revoke the bail.
“(g) The right of appeal to the Court of Criminal Appeals of this state is expressly accorded the defendant for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals.”

The apparent conflict is between the language of Art. 42.09, Sec. 4, and that of Art. 44.04(c). The State contends the language of Art. 42.09, Sec. 4, is mandatory and prohibits bail if punishment is over ten years. Appellant argues that Art. 44.04(c) contemplates bail during appeal if the punishment does not exceed fifteen years, that the Legislature did not intend by its amendment of Art. 42.09 to deny the right of bail to persons receiving punishment over ten years, and that any apparent conflict between the provisions can and should be harmonized under the Code Construction Act, Art. 5429b-2, V.A.C.S.

On the surface the statutes do appear to be in conflict as to cases where punishment is over ten years and not over fifteen years. Furthermore, both statutes were amended and the questioned language added at the same session of the Legislature. Acts 1977, 65th Leg., p. 636, ch. 234, and p. 2018, ch. 806.

In our examination of these provisions, we are guided by the Code Construction Act, supra. See, sec. 1.02(2) thereof. The construction aids in Sec. 3.03 are:

“In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the
“(1) object sought to be attained;
“(2) circumstances under which the statute was enacted;
“(3) legislative history;
“(4) common law or former statutory provisions, including laws upon the same or similar subjects;
“(5) consequences of a particular construction;
“(6) administrative construction of the statute; and
“(7) title, preamble, and emergency provision.”

The dates of passage in the Session Laws reflect that the amendments to Art. 42.09 (H.B. 39) passed the House on April 21 and passed the Senate on May 28. The amendments to Art. 44.04 (S.B. 52), on the other hand, passed the Senate on March 28, passed the House, with amendments, on May 12, and finally passed the Senate, with House amendments, on May 13. Thus, the House approved the amendment to Art. 44.-04 after it approved the amendment to Art. 42.09, whereas the Senate acted in the reverse order.

An examination of the bill history files preserved at the Legislative Reference Library in Austin reveals H.B. 39 (amending Art. 42.09) was before the House Committee on Criminal Jurisprudence from January 12 through March 30, and that S.B. 52 (amending Art. 44.04) was before the same committee from March 29 through May 4. Thus both bills were before the same committee, and it is to be presumed the legislators were aware of the matters before them, and any possibility of conflict. The only express statements of legislative intent to be found in the bill history files are contained in the Bill Analyses of the House Committee Reports on these two bills, under the heading “What the Bill Proposes to Do.” The report on H.B. 39 states:

“Amends Article 42.09 C.C.P. by providing that a defendant sentenced to death, life or a term of more than 10 years shall be transferred to T.D.C. pending appeal unless he is released on bail, and further providing that time spent at T.D.C. pending appeal be computed as if no appeal had been made. A person sentenced to a term of less than 10 years and who appeals his case shall be transferred to T.D.C. upon his written request in open court.” (Emphasis added.)

The report on S.B. 52 states:

“Amends Article 44.04 C.C.P. by giving the trial court discretion to set or deny bond during the pending of an appeal where punishment does not exceed fifteen (15) years. Also, procedures would be set up whereby a defendant who commits a crime while on bail would be denied appeal bond.” (Emphasis added.)

These expressions of legislative intent were not part of the bills and do not have the force of law. Nevertheless, they may aid us in construing these statutes. Art. 5429b-2, Sec. 3.03(2) and (3), supra.

Another matter we may look to is the object sought to be attained. Art. 5429b-2, Sec. 3.03(1), supra. Article 42.09, Secs. 2-5, supra, concerns delivery to the place of confinement. The caption to H.B. 30 states in part that the act relates to the commitment and delivery to the place of confinement of a convicted defendant. Art. 44.04, supra, on the other hand, relates to bond pending appeal, and the caption to S.B. 52 so states. See, Art. 5429b-2, Sec. 3.03(7), supra. These are distinct matters, and the provision addressing the manner of delivery of a convicted defendant for confinement pending disposition of his appeal does not necessarily foreclose the question of whether to confine him during the appeal. This distinction is also supported by a comparison of Art. 42.09, Sec.. 3 with Secs. 4 and 5. Section 3 speaks to the manner of delivery for confinement when the defendant is released on bail, regardless of the term assessed, while Sections 4 and 5 address by implication the manner of delivery for confinement, according to the term assessed, when he is not released on bail. These three sections do not address whether to release him on bail; that is the subject of Art. 44.04.

It is presumed the Legislature intended that both amendments be given effect, and we will give both statutes effect if a reasonable construction may be found to produce harmony rather than conflict between them. See, Art. 5429b-2, Sec. 3.03(5), supra. Construing Art. 42.09 to address only the manner of delivery of appellant for confinement, and construing Art. 44.04(c) to control the determination of whether to confine appellant, we hold the apparent conflict is thereby resolved, and both statutes may be given effect. These constructions we find to be in accord with the legislative intent. We therefore set aside the order of the trial court denying bail under Art. 42.09, supra. The provisions of Art. 44.04(c), supra, should have been applied by the trial court to determine whether to grant or to deny bail.

The judgment denying bail is set aside and the cause is remanded for proceedings consistent with this opinion.

      . It would be entirely proper for such statements of legislative intent to be made a part of the bill, even though not a part of the Code amendment. Such acts would carry greater weight, and, as part of the Session Laws, would be more accessible to the public and the bench and bar than the reports on file in the Legisla-five Reference Library. In the past this was more commonly the practice. See, e. g., Acts 1955, 54th Leg., pp. 386, 1174, chs. 107 Sec. 5,. 453 Sec. 3 (on successive amendments of same statute in same session); id. p. 486, ch. 138 Sec. 3 (on appellate record in criminal cases).


author: GUITTARD, Chief Justice.

text:
    A & S DISTRIBUTING COMPANY, INC., Appellant, v. PROVIDENCE PILE FABRIC CORPORATION, Appellee.
    No. 19326.
    Court of Civil Appeals of Texas, Dallas.
    Dec. 19, 1977.
    Rehearing Denied March 2, 1978.

      Philip R. Russ, Dallas, for appellant.
    Dennis N. Ryan, Jackson, Walker, Win-stead, Cantwell & Miller, Dallas, for appel-lee.
   GUITTARD, Chief Justice.

In this suit on a New York judgment, the trial court rendered summary judgment for plaintiff. Defendant appeals on the ground that the validity of the New York judgment is not established by competent summary-judgment evidence. We hold that the authenticated copy of the New York judgment attached to plaintiff’s motion raises a presumption of validity shifting to defendant the burden to show lack of personal jurisdiction or other grounds of invalidity, and that defendant failed to present summary-judgment evidence raising a fact issue in this respect. Consequently, we affirm.

Defendant’s first point asserts that the summary judgment was erroneous because the motion on which it was based was not supported by summary-judgment proof by way of affidavits or other extrinsic evidence. We hold that no such proof was required. Under authority of the full faith and credit clause of the United States Constitution, article IV § 1, the Congress long ago enacted a statute, now designated 28 U.S.C. § 1738, which prescribes the manner of proving the records of judicial proceedings of other states and also provides that copies of such proceedings, when authenticated as so prescribed, “shall have and the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State . . . from which they are taken.” Under this statute, when a judgment of another state is authenticated as prescribed and appears to be a record of a court of general jurisdiction, the court’s jurisdiction over the cause and the parties is presumed unless disproved by extrinsic evidence or by the record itself. Cook v. Cook, 342 U.S. 126, 128, 72 S.Ct. 157, 159, 96 L.Ed. 146 (1951); Adam v. Saenger, 303 U.S. 59, 62, 58 S.Ct. 454, 456, 82 L.Ed. 649 (1938); Thomas v. Frosty Morn Meats, 266 N.C. 523, 146 S.E.2d 397, 400 (1966). The judgment in question appears to be within this rule. The copy of the judgment attached to the motion for summary judgment is authenticated as prescribed by § 1738. It is regular on its face and appears to be a judgment of the supreme court of the state of New York, which we judicially know to be a court of general jurisdiction. See Perrenoud v. Perrenoud, 206 Kan. 559, 480 P.2d 749, 760 (1971) (general civil jurisdiction of California superior court judicially noticed). Consequently, no affidavit or extrinsic summary-judgment proof is required.

Defendant contends also that there is no summary-judgment proof that the judgment is final, valid, and subsisting, that it has not been vacated or set aside, or that plaintiff is the owner and holder of it. We hold that such proof is not required because of the presumption applicable to a foreign judgment when authenticated as prescribed by § 1738. Such an authenticated copy is sufficient in itself to establish a prima facie case, and the burden is on the defendant to show that the judgment is not final or subsisting or that the court did not have jurisdiction to render it. Mitchim v. Mitchim, 518 S.W.2d 362, 364 (Tex.1975); Country Clubs, Inc. v. Ward, 461 S.W.2d 651, 655 (Tex.Civ.App.—Dallas 1970, no writ). Although on this appeal from a summary judgment all questions of fact must be resolved against the trial court’s ruling, the foreign judgment sued on is nevertheless entitled to all the presumptions arising from the full faith and credit clause and 28 U.S.C. § 1738. Accordingly, defendant’s attack on the foreign judgment is in the nature of an affirmative defense, on which defendant has the burden to offer some summary-judgment proof raising a fact issue. Hungate v. Hungate, 531 S.W.2d 650, 653 (Tex.Civ.App.—El Paso 1975, no writ); L. C. Russell Co. v. Pipeguard Corp., 504 S.W.2d 596, 640 (Tex.Civ.App.—Beaumont 1973, no writ); Thomas v. Frosty Morn Meats, Inc., 266 N.C. 523, 146 S.E.2d 397, 400 (1966). Cf. Gulf, C. & S. F. Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500 (1959) (when plaintiff’s summary-judgment proof establishes elements of claim, defendant has burden to show fact issue on affirmative defense).

Moreover, it has been held that when the plaintiff named in a foreign judgment brings suit on it in this state, he is not required to show that he is the owner and holder of the judgment, as if he were suing on a promissory note in which he is named as payee. L. C. Russell Co. v. Pipeguard Corp., supra at 600.

Defendant further contends that any presumption in favor of the New York judgment has been rebutted by his verified pleadings and summary-judgment proof challenging the jurisdiction of the New York court. The pleadings, of course, raise no fact issue in themselves, since pleadings, even if sworn, are not competent summary-judgment proof. Hidalgo v. Surety Savings & Loan Ass’n, 462 S.W.2d 540 (Tex.1971). Defendant relies also, however, on an affidavit of the defendant’s president filed in response to the motion for summary judgment. This affidavit denies that defendant had subjected itself to the jurisdiction of the New York courts and also denies that defendant had ever had any business transactions with plaintiff’s agent, Quaker Fabric Corporation, in the state of New York.

We conclude that this affidavit is insufficient to raise a fact issue. The statement that defendant has never subjected itself to the jurisdiction of the New York court is not competent summary-judgment proof because it is no more than a legal conclusion. Bates v. Smith, 155 Tex. 443, 289 S.W.2d 215 (1956). Neither is a fact issue raised by the denial that defendant had had any business transactions with plaintiff’s agent, Quaker Fabric Corporation, in the state of New York. In this connection, defendant argues that New York has “no substantial interest” in granting relief between a Texas corporation (defendant) and a Massachusetts corporation (plaintiff). This argument is untenable because in this case personal jurisdiction does not depend on defendant’s participation in business transactions in New York, but on defendant’s alleged voluntary agreement to submit any dispute arising out of its contracts with plaintiff to arbitration in the state of New York. The judgment recites that it is rendered pursuant to an arbitration award. The sworn petition alleges that plaintiff and defendant had entered into a series of contracts by which plaintiff sold to defendant certain goods, and that each of these contracts contained a provision that all controversies under them “shall be settled by arbitration in New York in accordance with the Rules of the American Arbitration Association.” The petition further alleges that arbitration proceedings under these contracts were originally instituted by defendant, as shown by an attached demand for arbitration by defendant against Quaker Fabric Corporation. Exhibits attached to the petition further show that plaintiff had answered this demand for arbitration, stating that Quaker was its sales agent, and that plaintiff had counterclaimed for monies alleged to be due to it under its contracts with defendant. The petition states that both plaintiff and defendant were represented by counsel at a hearing in New York before the arbitrators, who made an award in favor of plaintiff. Finally, the petition prays for recovery of the amount of the award.

According to New York law, an agreement to arbitrate a commercial dispute in New York, such as is alleged in the New York petition, constitutes a voluntary submission to the jurisdiction of the New York courts. N.Y. Civ.Prac. Law and Rules § 7501 (McKinney 1963); S. M. Wolff Co. v. Tulkoff, 9 N.Y.2d 356, 214 N.Y.S.2d 374, 174 N.E.2d 478 (1961); Terminal Auxiliar Maritima v. Cocotos S.S. Co., 11 Misc.2d 697, 178 N.Y.S.2d 298 (Sup.Ct.1957). Consequently, the allegations of the New York petition present a ground of jurisdiction of the New York court that does not depend on any other contacts by the defendant with the state of New York. In view of the presumption of regularity of the New York judgment created by the authenticated copy of the New York proceedings under 28 U.S.C. § 1738, defendant had the burden, in response to plaintiff’s motion for summary judgment, to present summary-judgment proof negating the ground of jurisdiction recited in the New York judgment and alleged in the petition before the New York court. Since the defendant failed to offer any summary-judgment proof raising a fact issue as to whether defendant did, in fact, submit itself to the jurisdiction of the New York court by agreeing to submit to arbitration in New York disputes arising out of contracts with plaintiff or its agent, we hold that the presumption of regularity supported the summary judgment for plaintiff in enforcing the New York judgment.

Defendant insists that the law of New York has not been properly pleaded and proved, and, consequently, that we must presume that New York law is the same as Texas law. The record shows, however, that plaintiff filed in support of its motion for summary judgment a memorandum of authorities citing the pertinent New York law, including the authorities cited herein for voluntary submission to the jurisdiction of the New York courts and the validity of service by mail. The records shows that this memorandum was filed and a copy was furnished to counsel for defendant before the motion was heard. In the absence of any objection to this memorandum for lack of notice, we hold that it was sufficient as a motion requesting the court to take judicial notice of the New York law under rule 184a, Texas Rules of Civil Procedure. Consequently, the trial court was authorized, and this court is authorized as well, to take judicial notice of the New York authorities cited in the memorandum.

New York law also governs the sufficiency of the service of process in the New York suit. Mitchim v. Mitchim, 518 S.W.2d 362, 364 (Tex.1975); O’Brien v. Lanpar Co., 399 S.W.2d 340, 341 (Tex.1966); Fox v. Fox, 526 S.W.2d 180, 183 (Tex.Civ.App.—Dallas 1975, no writ). The presumption of regularity of duly authenticated foreign judgments under 28 U.S.C. § 1738 requires us to presume that process has been properly served under New York law. Hungate v. Hungate, 531 S.W.2d 650, 653 (Tex.Civ.App.—El Paso 1975, no writ). Defendant asserts that a fact issue concerning service of process in the New York suit is raised by the affidavit of defendant’s president, which denies that defendant had ever “been served by an officer in an effort to serve process in any litigation pending between A & S Distributing Co., Inc. and Quaker Fabric Corp. and/or Providence Pile Fabric Corp.” This averment does not raise a material fact issue because under New York law no personal service of process by an officer is necessary in a case of this sort. The New York petition alleges that the parties agreed that the rules of the American Arbitration Association were to govern the New York arbitration between the parties. Quoted in the petition is § 39(b) of these rules which provides as follows:

“Each party to an agreement which provides for arbitration under these Rules shall be deemed to have consented that any papers, notices or process necessary or proper for the initiation or continuation of an arbitration under these Rules and for any court action in connection therewith or for the entry of judgment on any award thereunder may be served upon such party by mail addressed to such party or his attorney at his last known address or by personal service, within or without the state wherein the arbitration is to be held (whether such party be within or without the United States of America), provided that reasonable opportunity to be heard with regard thereto has been granted such party.”

If the defendant has voluntarily submitted itself to the jurisdiction of the New York courts by agreeing to arbitrate a commercial dispute in New York in accordance with the AAA Rules, and a suit is brought to confirm the award of the arbitration, notice by mail is sufficient. Mulcahy v. Whitehili, 48 F.Supp. 917 (D.Mass.1943). See Varley v. Tarrytown Associates, Inc., 477 F.2d 208, 210 (2d Cir. 1973). Cf. Gilbert v. Burnstine, 255 N.Y. 348, 174 N.E. 706 (1931) (agreement to arbitrate in Britain pursuant to British Arbitration Act was a submission to all procedural machinery in aid of act’s provisions).

Such voluntary submission to the jurisdiction of the New York court is affirmatively shown by the authenticated proceedings. The New York judgment recites that it is rendered on an arbitration award and that “proof of service” of the filing of the petition to confirm the award has been made. The petition filed in the New York court alleges, in addition to defendant’s appearance in the arbitration proceeding, that defendant had been served by mail with a notice of the petition to confirm the award. The facts so recited and so alleged, would be sufficient under the New York statutes and decisions cited to establish jurisdiction of the New York court over the person of the defendant without any personal service of process by an officer. Again, the full faith and credit clause and 28 U.S.C. § 1738 require us to presume the regularity of the New York judgment unless lack of jurisdiction is affirmatively shown. Since the affidavit of defendant’s president does not deny that defendant made an agreement to arbitrate with plaintiff or plaintiff’s agent in New York, and it does not deny that defendant received mail notice of the filing of the petition in New York to confirm the award, we hold that no fact issue is raised concerning lack of service.

This holding should not be taken as implying that the petition in the New York suit is in itself competent summary-judgment proof under rule 166-A(e), Texas Rules of Civil Procedure. Our holding is rather that since the New York judgment on its face appears to be based on an arbitration award, and since the facts alleged in the authenticated proceedings accompanying the judgment appear to be sufficient to support the judgment under New York law, the presumption of regularity applies, and defendant had the burden in the present case to raise a fact issue concerning the jurisdictional basis alleged in the New York petition.

The same presumption forecloses defendant’s contention that the New York proceedings “are irregular and defective on their face, in that they are incomplete and in large part illegible.” This contention is untenable because the New York judgment and the petition on which it is based are both complete and fully legible. The only problem with respect to illegibility or incompleteness is the attached copy of the alleged contract between the parties, which is poorly reproduced. The substance of the contract, however, is alleged in the petition, and since the burden was on defendant to show lack of jurisdiction, defendant had the burden to establish that the illegible documents did not contain the provisions alleged in the petition. Because of defendant’s failure to offer any summary-judgment proof in this respect, we must hold that no fact issue is raised.

We note that the New York judgment recites that no appearance was made in the New York court in opposition to the petition to confirm the award of the arbitrators. We have been concerned, therefore, with certain Texas opinions that seem to adopt the view that there is no presumption in favor of a foreign default judgment. See Jackson v. Randall, 544 S.W.2d 439, 441 (Tex.Civ.App.—Texarkana 1976, no writ); Country Clubs, Inc. v. Ward, 461 S.W.2d 651, 655 (Tex.Civ.App.—Dallas 1970, writ ref’d n. r. e.). The actual decisions in these cases, however, are consistent with the presumption, since in each case the court held that there were facts in the record rebutting the presumption of personal jurisdiction. In these cases, the courts cited McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965) and other Texas decisions holding that on a direct appeal from a default judgment there is no presumption in favor of the judgment. In our view, that rule cannot properly be applied to a foreign default judgment in view of the full faith and credit clause and 28 U.S.C. § 1738, since in a suit brought in this state, an attack on the foreign judgment is a collateral attack, and the presumption of regularity applies. Mitchim v. Mitchim, 518 S.W.2d 362 (Tex.1975).

We also find no merit in defendant’s contention that plaintiff lacks capacity to sue because it is a foreign corporation and has not established its authority to do business in Texas. Such lack of authority is a matter of defense on which defendant had the burden or proof. Wallace v. Lincoln Leasing Corporation, 547 S.W.2d 56, 57 (Tex.Civ.App.—Dallas 1977, no writ). Defendant has presented no summary-judgment proof showing that plaintiff lacks authority to do business in Texas or that it is doing any business in Texas that would require it to obtain such authority. Consequently, we hold that no fact issue was raised in this respect.

Affirmed.