author: POPE, Justice.

text:
    Roy M. HUFFINGTON et al., Petitioners, v. Haden J. UPCHURCH, Respondent.
    No. B-5342.
    Supreme Court of Texas.
    Jan. 21, 1976.
    Rehearing Denied Feb. 18, 1976.
    Andrews, Kurth, Campbell & Jones, Alfred H. Ebert, Jr., V. Camp Cuthrell, III and Edith H. Jones, Baker & Botts, Frank G. Harmon, Richard B. Miller and Richard A. Brooks, Houston, for petitioners.
    Fred Parks, Houston, Sloan B. Blair, Howard G. Barker, Gantey, Hanger, Gooch, Cravens & Munn, Fort Worth, for respondent.
   POPE, Justice.

Haden J. Upchurch sued Roy Huffington, Inc. and Roy Huffington individually to impress a constructive trust upon the legal and beneficial interests in a partnership opportunity which Upchurch claimed was misappropriated for defendants’ exclusive benefit. Haden Upchurch, Roy Huffington, R. E. Warren, and Paul Scott were partners in an oil and gas investment firm. On the basis of the jury’s answers to special issues and the evidence, the trial court rendered judgment impressing a trust in favor of Upchurch to the extent of 14.285% of the beneficial interest created or retained by defendants in a joint venture agreement for an Indonesian oil and' gas venture. The court of civil appeals affirmed the judgment but modified it so that Upchurch’s recovery was raised from 14.285% to 20%. The basis for the additional recovery was that Warren and Scott had, as a matter of law, abandoned their interests in the Indonesian venture and that Upchurch was also entitled to a pro rata share of their abandoned interests. A full statement of the facts is contained in the opinion of the court of civil appeals. 523 S.W.2d 44. We reverse that part of the judgment of the court of civil appeals which awarded Up-church a part of the partnership interest of Warren and Scott, but we affirm the judgment of the court of civil appeals and that of the trial court which allowed Upchurch his own partnership interest in the Indonesian venture.

The Partnership Agreement

Roy Huffington was the sole owner of Huffington, Inc., a diversified corporation with interests in oil and gas, real estate and shrimping. Huffington, Inc. engaged in the oil and gas business by locating oil and gas projects and then financing investments in them with funds obtained from outside individual investors. If the venture was successful, Huffington, Inc. would pay the outside investor a large percentage of the profits and keep a small reversionary interest for itself. In 1963, Huffington, Inc. employed Haden Upchurch as a landman, R. E. Warren as chief geologist and Paul Scott as production engineer. Although Huffington was a trained geologist, he had also demonstrated considerable talent for finding the outside investors who were necessary to finance costly oil and gas ventures. Upchurch, Warren and Scott were all paid $1,500 per month, and as an additional incentive, they were given a percentage of certain interests retained by Huff-ington, Inc. in the oil and gas ventures.

In 1965 the Fifth Circuit decided the case of United States v, Frazell, 335 F.2d 487 (5th Cir. 1964), cert. denied, 380 U.S. 961, 85 S.Ct. 1104, 14 L.Ed.2d 152 (1965), in which the court indicated that the full value of a reversionary interest received by an employee as compensation could be taxed in the year the interest vested. Huffington claims that the only reason a partnership was formed was to shelter Upchurch, Warren and Scott from the extra tax liability which the Frazell case threatened to impose. Upchurch disputes this contention and claims that the tax consequences only played a part in their decision to form the partnership. Whatever the motives may have been, the fact is that the partnership of Huffington Associates was formed in January, 1966, consisting of Huffington, Upchurch, Warren and Scott, and their rights and duties were controlled by the partnership agreement. Huffington, Inc. remained as an independent business entity. Upchurch, Warren and Scott continued to do the same jobs at the same salaries, and they received the same percentages of any reversionary interest as they had as employees of Huffington, Inc. Huffington was designated as the managing partner. The purpose of the partnership was explicitly stated in the partnership contract:

The purposes of the partnership shall be to acquire, own, develop and operate oil, gas and mineral leases, mineral interests and royalty interests, properties and prospects and to produce therefrom and treat, transport and market oil or gas, or both of them, or production derived therefrom.

Apparently the parties realized that there were some areas of business which Huffing-ton would want to pursue independently of the partnership. Thus the agreement provided that the partners were “free to conduct, in their individual capacities, or in association with others, any other business transaction not directly related to the business of acquiring mineral leases and other mineral or royalty interests and the exploration for and production of oil, gas and other minerals.” (Emphasis added.) The full text of the partnership agreement is set out in an appendix to the opinion of the court of civil appeals.

The Indonesian Venture

In early 1968, and while the partnership agreement was operative, Huffington learned that Virginia International Company (VICO) had contacts with the Indonesian government concerning oil and gas matters. VICO’s Vice President arranged several meetings in Indonesia for Huffington. During the time of these negotiations, Up-church asked Huffington “would we be in the Indonesian deal” and at that time, Huffington replied, “Yes.” Upchurch offered to pay his share of the costs which up to that time only amounted to travel expenses. On August 8, 1968, a deal was made with the Indonesian government, and through a series of complicated business transactions Huffington eventually acquired for Huffington, Inc. a ten percent working interest and a one percent overriding royalty interest in a highly profitable Indonesian oil and gas project. At this point Huffington refused to recognize Up-church’s right to participate and Upchurch filed suit. Neither Warren nor Scott are parties to this suit.

The Partnership’s Ability to Finance the Indonesian Venture

It is undisputed that the Indonesian venture fell within the nature of the partnership business as defined by the written contract. However, it was defendants’ contention that Upchurch failed to plead and prove the partnership’s financial capability to take advantage of this particular venture.

In International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 571 (Tex.1963), the principal officers of International Bankers Life sold some of their personal shares of stock in competition with a stock offered by Bankers Life. The defendants in that case claimed that “there must be findings that plaintiff could or would have sold its new issue stock to purchasers of the stock of the defendants.” We rejected that notion and held “the burden is upon the defendants to establish the fairness of the personal sales transaction to the corporation, and that plaintiff does not have the burden of establishing that the corporation could or would have sold its stock had the defendants not engaged in their competitive sales activities. The latter is no more than evidentiary upon the question of fairness, and upon the question of exemplary damages.” See also Perlman v. Feldmann, 219 F.2d 173 (2d Cir. 1955); Irving Trust Co. v. Deutsch, 73 F.2d 121 (2d Cir. 1934); Comment, The Corporate Opportunity Doctrine, 18 Sw.L.J. 96 (1964). Although the Holloway case dealt with the fiduciary duties of corporate officers and directors, the above quoted principle of law is equally applicable to partnerships.

The defendants urge that Upchurch only made $1,500 per month and that Huffing-ton Associates lacked the resources to finance this multimillion Indonesian project. This really misses the point. One of the talents which Roy Huffington was obligated to contribute to the partnership was his proven ability to find outside investors for the oil and gas ventures. Whether the venture was undertaken in the name of Roy Huffington, Inc. or the partnership, it was necessary to find outside investors who would finance the project. While it is true that Huffington, Inc. obligated itself to put several million dollars into this venture over a period of years, Huffington, Inc. only advanced $50,000 “front money” to seal the bargain. Most of the other funds were secured from outside investors by selling off part of the valuable acquired interest.

The partnership contract obligated Roy Huffington to “give his attendance to, and to the utmost of his skill and power shall exert himself for, the joint interest, benefit and advantage of said partnership business.” In a ease of this kind, where the partner who has misappropriated a particular opportunity is also the partner who is primarily responsible for finding financial backing, the burden of proving financial incapability should be on him so as to encourage the exertion of his best efforts. Judge Swan spoke of this aspect of the financial capability defense in Irving Trust Co. v. Deutsch, 73 F.2d 121 (2d Cir. 1934):

If directors are permitted to justify their conduct on such a theory, there will be a temptation to refrain from exerting their strongest efforts on behalf of the corporation since, if it does not meet the obligations, an opportunity of profit will be open to them personally. Cf. Trice v. Comstock, 121 F. 620, 623, 61 L.R.A. 176 (C.C.A. 8). Indeed, in the present suit it is at least open to question whether a stronger effort might not have been made on the part of the management to procure for Acoustic the necessary funds or credit.

As managing partner of Huffington Associates, Roy Huffington owed to his co-partners one of the highest fiduciary duties recognized in the law. In Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93, 96 (1954), this court quoted at length from Justice Cardozo’s opinion in Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545 (1928) concerning the fiduciary duties of managing partners.

As managing partner of their partnership enterprise, respondent owed his partners even a greater duty of loyalty than is normally required. In the Meinhard v. Salmon case, supra, the court said: “Salmon had put himself in a position in which thought of self was to be renounced, however hard the abnegation. He was much more than a coadventurer. He was a managing coadventurer. * * For him and for those like him the rule of undivided loyalty is relentless and supreme”. MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d 334.

Abandonment by Warren and Scott

Upchurch claimed in his pleadings that he was also entitled to a pro rata share of Warren and Scott’s partnership interest in the Indonesian venture. The basis for his claim was that those partners had abandoned their rights to the venture, and that their abandoned rights should belong equally to the two remaining partners. The evidence of abandonment consists of letters signed by Warren and Scott, on November 11, 1968, which purported to list all the partnership assets and opportunities in which they had a right to participate. The Indonesian venture was not among the listed projects. The court of civil appeals with little discussion sustained Upchurch’s cross-point and modified the judgment so as to give Upchurch a pro rata share of Warren and Scott’s interest.

The action of the court of civil appeals amounted to a holding that as a matter of law Warren and Scott had abandoned any interest in the Indonesian project. One who relies upon abandonment has the burden of establishing it. Gulf Insurance Co. v. Ball, 324 S.W.2d 605 (Tex.Civ.App.1959, writ ref’d n. r. e.); Evans v. Evans, 50 S.W.2d 842 (Tex.Civ.App.1932, writ ref’d). In order to establish abandonment, there must be proof of an intent to relinquish a known right. Dallas County v. Miller, 140 Tex. 242, 166 S.W.2d 922 (1943); Shosid v. Hughes Tool Co., 258 S.W.2d 945 (Tex.Civ.App.1953, writ ref’d n. r. e.); Evans v. Evans, supra.

The letters do not establish, as a matter of law, the absence of any partnership interest by Warren and Scott in the Indonesian venture. The letters recognized that the partnership was not yet terminated and that it would continue for several more months. The letters are also subject to the meaning that Warren and Scott did not know that they held rights in that venture, and they are also consistent with the idea that Huffington may have acquired their rights.

While the court of civil appeals incorrectly concluded that Upchurch, as a matter of law, held a proportionate part of the abandoned Warren and Scott interests; the trial court also erred in its conclusion that Upchurch, as a matter of law, held no part of those interests. There was an issue of fact which should have been resolved by the jury. Upchurch requested, and the trial court refused, two special issues which inquired whether Scott and Warren relinquished the rights that each may have had in the Indonesian contract. In our opinion, Upchurch was entitled to a submission of the abandonment issues.

An additional problem confronted the trial court. Neither Warren nor Scott were joined as parties to this lawsuit. The defendants did not seek to abate the action for that reason nor did they complain of the non-joinder. Warren and Scott were not indispensable parties, Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex.1974), but that does not mean that the trial court was required to proceed to judgment which adjudicated their rights in their absence. Rule 39 accords discretion to the trial court in determining whether to proceed to trial in the absence of parties, and to consider “the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided.” The trial court did more than that; it wholly rejected Up-church’s claim to the Warren and Scott interest. In our opinion, Upchurch is entitled to a trial of the fact issue whether Warren and Scott abandoned a known right or otherwise divested themselves of any right they may have had in the Indonesian venture.

Rules 503, 434 and 320 were changed, effective January 1, 1976, to permit partial remands and partial retrials in limited kinds of cases, i. e., when an “error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties.” It is our opinion that the cause of action between Upchurch as plaintiff and Huffington individually and Huffington, Inc., as defendant, has been correctly tried and need not be tried again. On the other hand the issues which concern the rights, if any, which belonged to Warren and Scott have not been properly tried. As to that action, we order a severance and a partial remand.

We affirm that part of the judgment of the court of civil appeals which awarded Upchurch a judgment against Huffington and Huffington, Inc. for 14.285 percent of the interest created by the joint' venture agreement standing in the name of Roy M. Huffington, Inc. We reverse that part of the judgment of the court of civil appeals which awarded Upchurch a proportional share of the interests of Warren and Scott, and as to that part of the judgment, we order a severance of the cause and a remand to the trial court.

Costs are adjudged against the respondents.


source: Caselaw Access Project

author: ODOM, Judge. DOUGLAS, Judge ROBERTS, Judge ONION, Presiding Judge. DOUGLAS, Judge.

license: Public Domain

text:
    David LECHUGA, Appellant, v. The STATE of Texas, Appellee.
    No. 50426.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1975.
    On Rehearing Feb. 11, 1976.
    Rehearing Denied March 3, 1976.
    William J. McGowan, II, Court-appointed, Brownfield, for appellant.

      E. W. Boedeker, Dist. Atty., Levelland, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

On May 23, 1972, appellant plead guilty before the court to the offense of defrauding with a worthless check. Punishment was assessed by the court at three years. A motion for new trial was thereafter filed by appellant and granted by the court. On August 2,1972, appellant again plead guilty before the court in this cause, and the court assessed punishment at five years. Appellant was then placed on probation, which was subsequently revoked. Appeal is taken from the order revoking probation.

Although not raised in appellant’s brief, we observe constitutional error which should be reviewed in the interest of justice. Art. 40.09(13), V.A.C.C.P. Appellant, upon his second conviction in this cause, was assessed a greater punishment than that assessed upon his first conviction. Both proceedings were before the same trial judge, and no factual data appears in the record which would constitute a legitimate basis for increased punishment.

In Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975), the prerequisites for increased punishment upon retrial in a case such as the one before us were quoted from North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. It was there stated:

“. . . whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.”

Because the record contains neither reasons for the increase in punishment nor factual data upon which such an increase could have been based, the judgment of the court assessing punishment must be vacated. Ex parte Bowman, supra.

The dissents say five years, probated, is not a more severe sentence than three years. Actually, probation is no sentence at all: the five year sentence is not imposed at all, unless the probation is revoked. But whether imposition of sentence is suspended or not, the punishment assessed was 3 years at the first trial and 5 years at the second. Following revocation of probation the harsher sentence finally was imposed, and no reasons for its greater severity appear in the record.

The judgment, as to punishment, is reversed, and the cause is remanded for assessment of punishment by the trial court in accordance with North Carolina v. Pearce, supra.

DOUGLAS, Judge

(dissenting).

The majority holds that a five years’ probation is a greater punishment than three years’ confinement in the Texas Department of Corrections. In doing so, it treats a year of probation as equivalent to a years’ confinement.

The matter has not been raised by anyone except the majority of this Court in its own collateral attack upon the judgment of probation.

The majority apparently reasons that probation will be revoked after it is granted. If not, then it apparently reasons that it is possible that the punishment will be greater if probationer commits another or other crimes and the probation is revoked. This is not the case at the time punishment was assessed. The trial judge would not have granted probation if he thought that appellant would fail to live up to its conditions.

Under the law at the time this case was tried, the punishment of five years’ probation could have been reduced or terminated after appellant had satisfactorily completed one third of the original probationary period. This, of course, is somewhat less than three years. See Art. 42.12, Sec. 7, V.A.C. C.P.

At the time of revocation, Art. 42.12, Sec. 8(a), V.A.C.C.P. provided that if probation were revoked, the court could have reduced the term of imprisonment to not less than the minimum prescribed for the offense for which he had been convicted.

From the above provisions of probation statutes, it was not mandatory that five years had to be served even if probation were revoked. The probation could have been set aside without serving any time.

Nearly every person charged except perhaps a professional criminal who accepts the risk of getting caught as a part of his business risk, would rather have five years probated than three years’ confinement.

If there could be a question that a judgment of five years probated is less than three years’ confinement, just ask the man who has one or ask a person who has just committed his first felony and been charged with that crime, or ask a lawyer who has represented first offenders.

North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, which holds that the same judge should not assess a greater punishment after a case has been reversed on appeal unless certain facts are shown, has been misconstrued and misapplied by the majority, because in the present case the trial judge assessed appellant a lesser punishment of probation at the time of trial.

In North Carolina v. Pearce, supra, the reason for not permitting a trial judge to assess a higher punishment after a defendant’s cause had been reversed in an appellate court was to prevent a vindictive judge from penalizing a defendant for appealing. In the present case the judge showed compassion, not vindictiveness, in giving appellant probation and another chance.

Let us consider the facts of the case in connection with appellant’s sole contention.

He was convicted May 23, 1972, for defrauding with a worthless check; his punishment was assessed at three years. His motion for new trial was granted August 2, 1972; he entered another plea of guilty and asked for probation. He was assessed a punishment at five years probated. Two of the conditions of probation were that he “(a) commit no offense against the laws of this State or any other State or the United States, (b) avoid injurious and vicious habits, and particularly not become intoxicated in a public place or operate a motor vehicle while under the influence of intoxicating liquors.”

On November 27, 1974, an amended motion to revoke probation was filed. It alleged that the terms and conditions of said probation have been violated as follows:

“a) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas knowingly and intentionally cause physical contact with another, to-wit: Mrs. Robert Robertson, when he, the said defendant knew and should have reasonably believed that the said Mrs. Robert Robertson would regard the said contact as offensive and provocative.
b) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas knowingly and intentionally cause physical contact with another, to-wit: Deola Lechuga, when he, the said defendant knew and should have reasonably believed that the said Deola Lechuga would regard the said contact as offensive and provocative.
c) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas with the intent to damage and destroy furniture and a telephone without the effective consent of Mrs. Robert Robertson, the owner thereof.
d) That on or about the 20th day of October, 1974, David Lechuga, was intoxicated in a public place in Terry County, Texas.
e) That David Lechuga on or about the 10th day of January 1974, in Lubbock County, Texas did then and there while in the course of committing theft of good and lawful United States Currency hereafter called the property from Mark Cor-ley, with intent to obtain and maintain control of the property, knowingly and intentionally threaten and place JaNette Hodges in fear of imminent bodily injury and death.”

A “Judgment Revoking Probation” dated December 2, 1974, was entered.

It recited that appellant violated the terms of probation as follows:

“a) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas did knowingly and intentionally cause physical contact with another, to-wit: Deola Lechuga, when he, the said David Lechuga, knew and should have reasonable believed that the said Deola Lechuga would regard the said contact as offensive and provocative.
b) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas did damage and destroy furniture and a telephone without the effective consent of Mrs. Robert Robertson, the owner thereof.
c) That on or about the 20th day of October, 1974, David Lechuga, in Terry County, Texas was intoxicated in a public place in Terry County, Texas.”

Theresa Robertson testified that appellant had been married to her sister Deola, but they were divorced at the time in question. Deola and her children were at the Robertson house while appellant and Theresa’s husband went to a club in Brownfield. Robert Robertson returned to the house at approximately 11:30 or 12:00 o’clock that night. Later appellant came to the house and knocked on the door. He was told to go away. He cursed and beat on the door. She went to the hall to call the officers. Appellant “knocked the door in”. After entering, he dragged Deola out of bed and started striking her with his fists. Theresa again tried to call the officers, but appellant pushed her against the wall and was attempting to hit her when Deola stepped between them.

He then took Deola and the three children outside and stayed a few minutes. Robert Robertson tried to call the police, but appellant came back inside and pulled the telephone off the wall. He tore up the screen and the door. He threw a high chair at Deola and hit a light fixture and broke it.

She did not smell his breath, but he staggered real bad and she believed that he was intoxicated.

Deola Lechuga testified that appellant came to the door of the Robertson house and knocked. She told them not to let him in. He broke in the door and entered. He then struck her “all over” her face and body with his fists. He shoved her and then doubled up his fists to hit Theresa and she stepped between them and got hit in the mouth. She smelled alcoholic beverages on his breath and believed that he was intoxicated. She had seen him on other occasions. She was again asked what was her opinion. She answered, “That he was just drunk, Dog drunk.”

She further related that appellant took their baby and fell down with it.

Robert Robertson testified that on the night in question he and appellant went to the Farmer’s Club in Brownfield. While there he saw appellant have four drinks, maybe more. Robertson left the club at approximately 6:30 and tried to get appellant to leave, but he would not. At that time, “I would say he was pretty well on his way to being intoxicated.” He related that he would not let appellant enter the house. Appellant cursed, tore the screen door loose, broke the glass out of the door, tried to unlock it and then kicked the door open and in doing so, broke the facing on the door. His testimony about the assaults was substantially the same as that of the two women.

In revoking probation the judge stated:

“. . . I find that you did, on or about the 20th day of October, strike your former wife, Deola Lechuga, and that you did, intentionally cause physical contact with her and that you should have known and probably did know and believe that this contact with her was offensive and provocative.
I also find that you did, with intent, damage and destroy the light fixture in the house and the telephone and also from a preponderance of the evidence, that you were intoxicated in a public place on or about that day. Although the testimony is rather vague, the Court finds that since you offered none, hereby preponderates that you were intoxicated in a public place on this date.
About taking the money and threatene ing Janetta Hodges, the court finds that the evidence to sustain that part is insufficient.
I will enter a Judgment to this effect.”

It is apparent that the judge did not consider the fact that appellant did not testify when he found in effect that he assaulted Deola Lechuga and destroyed the property in the house.

The only issue in a revocation of probation case is did the trial court abuse its discretion. Here, without considering intoxication, there were two grounds upon which probation was revoked in which the judge did not say that appellant offered no evidence.

Without discussing fully the question about the judge’s statement that appellant offered no evidence being an allusion to appellant’s failure to testify, there was evidence to show that he was with other people at the Farmer’s Club who could have been called.

No error or abuse of discretion has been shown. The judgment should be affirmed.

ROBERTS, Judge

(dissenting).

I cannot agree with the opinion of the majority that five years’ probation is “a more severe sentence” than three years’ imprisonment for purposes of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

Probation is imposed for the purpose of rehabilitation without confinement, at least in theory. Probation permits an individual found guilty of a crime to continue his education, hold a job, and remain in the supportive company of family and friends. The trial judge here was not being vindictive in changing appellant’s sentence from three years’ imprisonment to five years’ probation after granting his motion for new trial. In fact, he was being more lenient. Probation is not granted on the assumption that it will be revoked, but rather on the assumption that it will be carried to a successful conclusion.

The five-year probated sentence here looks harsher than three years’ imprisonment only when the probation is revoked. North Carolina v. Pearce is aimed at preventing vindictiveness in the imposition of a new sentence, not at a possible subsequent revocation hearing.

For these reasons, I dissent to the majority’s disposition of this case, and proceed to address the ground of error brought forward in appellant’s brief.

In his only ground of error, appellant complains that the trial judge took into consideration his failure to testify in revoking his probation, in violation of Art. 38.08, V.A.C.C.P. We find this contention to be without merit. Although a probation revocation hearing must be attended by due process of law, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970), it is not a trial in all constitutional senses. Hill v. State, 480 S.W.2d 200 (Tex.Cr.App.1972); cf. Fariss v. Tipps, 463 S.W.2d 176 (Tex.1971); Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975). The accused in such a proceeding is not entitled to trial by jury, Barrow v. State, 505 S.W.2d 808 (Tex.Cr.App.1974); the benefits of the accomplice witness rule of Art. 38.14, V.A.C. C.P., Hulsey v. State, 447 S.W.2d 165 (Tex.Cr.App.1969); the ten-day preparation time provided for appointed attorneys by Art. 26.04(b), V.A.C.C.P., Hill v. State, 480 S.W.2d 200 (Tex.Cr.App.1972); or a jeopardy bar to further prosecution, Settles v. State, 403 S.W.2d 417 (Tex.Cr.App.1966). And a violation of the probationary terms need only be shown by a preponderance of the evidence, not beyond a reasonable doubt. This being a case of first impression, I would hold that the prohibition of Art. 38.08 applies only to criminal trials and not to probation revocation proceedings. The trial court therefore committed no error when he considered appellant’s failure to offer testimony.

The judgment should be affirmed.

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

On rehearing the State vigorously urges that the majority was wrong in holding that a five (5) year assessment of punishment by the court with probation at the second trial was a “more severe” punishment than the three (8) years without probation assessed by the court at the first trial, and that North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), does not call for such result. If the three (3) years assessed at the first trial and the five (5) years assessed at the second trial had both been “straight time,” there would be no question but that North Carolina v. Pearce, supra, had application. Ex parte Bowman, 523 S.W.2d 677 (Tex.Cr.App.1975); Payton v. State, 506 S.W.2d 912 (Tex.Cr.App.1974); Miller v. State, 472 S.W.2d 269 (Tex.Cr.App.1971). In the above cases, as well as the instant case, the increase in punishment was not based upon objective information concerning identifiable conduct on the part of the accused occurring after the time the original punishment was assessed. The State urges, however, that the interjection of a grant of probation along with the assessment of five (5) years at the second trial in the instant case calls for a different result.

At first blush, the State’s position is most appealing. This is so because it may be stated that any defendant standing before a court would opt for any sentence with probation rather than one without probation — for it would, at least temporarily, permit him to be a free man — over any punishment that requires immediate confinement. Our inquiry cannot stop here.

The question presented arises out of the decision in North Carolina v. Pearce, supra. There, the court stated in part:

“. . . [D]ue process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial . In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.”

It should be clear that the term “more severe sentence” should be read as synonymous with “more severe punishment or penalty” rather than the formal pronouncement of sentence as provided in Articles 42.02 and 42.03 of our Code of Criminal Procedure. It is also clear that Pearce is not to be applied retroactively, Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973), and that it normally would not apply to jury trial where the jury assesses punishment, Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). This is particularly true where the jury is unaware of the first penalty assessed and there is no showing of vindictiveness. See Curlin v. State, 505 S.W.2d 889 (Tex.Cr.App.1974); Fuery v. State, 464 S.W.2d 666 (Tex.Cr.App.1971). Further, Pearce has no application where the more severe punishment is assessed upon a trial de novo in a court of general jurisdiction following an appeal from a conviction in an inferior court for a lesser criminal offense. Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). The court found the possibility of vindictiveness found to exist in Pearce was not inherent in the Kentucky two-tier system.

None of these areas of the inapplicability of Pearce have relevancy in the instant case.

In McCulley v. State, 486 S.W.2d 419 (S.Ct. Mo.Div. # 1, 1972), the Missouri Supreme Court was confronted with a question of whether a seven year sentence without probation was a “more severe” sentence than two years without probation in light of North Carolina v. Pearce, supra, and concluded that it was. After discussing the broad discretion a trial judge in Missouri is given in fashioning punishment after the determination of guilt, “probation,” “sentence” and punishment, the court concluded that “sentence” or the penalty does not include as a part of its definition such conditional orders as the court makes for the amelioration of the punishment — probation. Probation lessens the immediate impact of the sentence on the defendant, but probation does not, per se, shorten or lengthen the sentence. It was then added, “The court holds that probation ... is not part of the sentence imposed upon a defendant.”

Rejecting the reasoning of Thurman v. United States, 423 F.2d 988 (9th Cir. 1970), that “more severe” as used in Pearce means something more than longer sentence and that “totality of the impact of the sentence upon the defendant must be considered,” the Missouri Supreme Court adopted the reasoning of United States v. Barash, 428 F.2d 328 (2nd Cir. 1970), that any attempt to compare one kind of punishment with another under circumstances similar to the question presented in McCulley was wholly impractical. The court observed that to give the words “more severe” as used in Pearce a different meaning than longer sentence would make every question of whether Pearce has been violated “purely subjective” defying “objective application.”

The court then held that any sentence imposed in a second trial before a judge cannot be greater than a sentence imposed by the judge at the first trial except in those instances noted in Pearce. The court found, however, that Pearce was not to be applied retroactively and that McCulley’s second trial occurred prior to Pearce. Nevertheless, the holding in McGulley as to the procedure to be used after the date of the Pearce decision is in accord with the majority opinion on original submission in the instant case.

In the instant case the punishment assessed by the judge was three (3) years for the offense of defrauding by a worthless check. Upon retrial, after granting appellant’s motion for new trial, the court assessed punishment at five (5) years for the same offense. The judge made no affirmative showing for his reasons for increasing the penalty as required by Pearce. Thus, at that point the procedure was in violation of Pearce. Does the granting of probation for five (5) years cure such constitutional error? We think not.

Remaining convinced that the correct results were reached on original submission, the State’s motion for rehearing is overruled.

DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

The majority still holds that five years of probation is more punishment than three years in the penitentiary. The majority is correct in that five years are more than three years. But this is like saying that five pennies are worth more than three dollars. Five blows in a spanking would be more punishment than three blows provided they are uniformly applied. Which would be greater: five soft blows applied with a folded newspaper by a compassionate mother or three hard blows applied with a razor strap by an enraged father? Measured at the time punishment is assessed, five years of probation would not be more punishment than three years’ confinement.

When probation was revoked and the sentence was executed, appellant’s time of confinement was increased because he had committed several other offenses. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, relied upon by the majority, has been misapplied by the majority because there was new conduct that could be considered. Such was not the case in North Carolina v. Pearce. There was no vindictiveness by the trial judge when he assessed or revoked probation.

No error has been shown. The State’s motion for rehearing should be granted and the judgment affirmed.

ROBERTS, J., joins in this dissent.

      . By virtue of the provisions of Article 42.12, Vernon’s Ann.C.C.P., the period of probation cannot exceed ten (10) years.

      . In Texas can it be said that any “straight time” in the Department of Corrections is a “more severe” punishment than any term of probation? Is 10 years’ probation (the maximum under Article 42.12, Vernon’s Ann.C. C.P.) “more severe” than two years’ “straight time”? If it is, then where do you draw the line on possible probation periods and say they are more and less severe than two years’ “straight time”? If it is not, do you take into consideration that a person imprisoned in the Department of Corrections may earn “good time credits” (Article 61841) and may be eligible for parole after having credit for ⅝ of his sentence? Do you counter with the fact that, although a 10 year probationer at any time during the period may have his probation revoked and be called upon to serve his 10 year sentence, such probationer may also (1) successfully serve his 10 year probation, or (2) if revoked, may have the time to be served reduced (Article 42.12, Sec. 8, Vernon’s Ann. C.C.P.), or (3) may upon successful completion of two years or V3 of his probationary period have probation terminated (Article 42.12, Sec. 7, Vernon’s Ann.C.C.P.)? It would be easy to get into never-never land.


author: DAVIS, Commissioner.

text:
    Richard Bryce WARREN, Appellant, v. The STATE of Texas, Appellee.
    No. 50908.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1976.

      Harris Hampton, Canyon, for appellant.
    Clarence L. Darter, County Atty., Chil-dress, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a misdemeanor conviction of operating a motor vehicle upon a public road while under the influence of intoxicating liquor. The court assessed punishment at a fine of $100.00 and fifteen days in jail, but ordered that no judgment be rendered thereon and that appellant be placed on probation for a period of six months.

Appellant contends that “when the guilty plea was taken, he was not present in court nor was any attorney who represented him present.”

The record reflects the following sequence of events:

(1) A judgment bearing the date of January 15, 1975 recites that appellant appeared before the court, waived a trial by jury and entered a plea of guilty to the offense of “driving while intoxicated as charged herein.” The court found appellant guilty and assessed punishment at a fine of $100 and 3 days in jail.
(2) A sentence bearing the date of January 15, 1975 reflects that appellant appeared in court for pronouncement of sentence in accordance with the judgment of the court.
(3) An order of the court, dated January 16, 1975, recites:
“it was called to the attention of the court that there was new evidence that would justify the court in setting aside its previous judgment rendered on the 15th day of January, 1975 and the court finds that said judgment should be set aside,” and “IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the judgment rendered on the 15th day of January, 1975 be set aside and held for naught.”
(4) A motion for probation bearing appellant’s signature was filed on January 16, 1975.
(5) A judgment of the court bearing the date of January 16, 1975 recites that appellant “appeared in person and his attorney” and after waiving a trial by jury entered a plea of guilty to the offense of operating a motor vehicle upon a public road while intoxicated and under the influence of intoxicating liquor. The judgment further reflects that the court found appellant guilty, assessed punishment at a fine of $100 and 15 days confinement in jail and ordered “That the finding of guilty herein shall not be final, that no judgment be rendered thereon, and that Defendant be, and he is hereby placed on probation in this cause for a period of six months from this date, on the following terms and conditions, to wit: . . .

An “agreed statement of facts,” bearing the approval of the court, reflects in pertinent part:

“That the Defendant now stands convicted of the offense of DWI after a plea of guilty which was entered while the Defendant was in a hospital, while under medication, and at no time after the first judgment was assessed against the Defendant was he before the court nor was he ever personally before the court on his application for probation, nor was an attorney representing him before the court.”

Article 33.03, V.A.C.C.P. provides in pertinent part:

“In all prosecutions for felonies, the defendant must be present at trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; .(emphasis supplied) See Lusk v. State, Tex.Cr.App., 432 S.W.2d 923; Millman v. State, Tex.Cr.App., 487 S.W.2d 750; Casias v. State, Tex.Cr.App., 503 S.W.2d 262.

A portion of the punishment prescribed upon conviction for the instant offense is “by confinement in the county jail for not less than three (3) days nor more than two (2) years. ...” Art. 67017-1, V.A. C.S.

The State argues that there was no second trial, and that the action of the court amounted to a continuation of the first trial for the purpose of granting appellant probation.

While the terminology of the court in its order of January 16, 1975 was “setting aside its previous judgment rendered on the 15th day of January, 1975,” it would appear that the court’s action had the effect of granting appellant a new trial. The order not only reflects a basis for granting a new trial, the discovery of new evidence, the judgment or order entered on January 16, 1975 recites appearance of appellant and his attorney, waiver of jury, plea to the information, the hearing of evidence, the finding of guilt and assessment of punishment. The recitation of these events purported to have occurred on January 16 recites the cause was “in the same position [on January 16] in which it was before any trial had taken place” and is consistent with the court having granted a new trial. Further, it is noted that judgment and sentence were entered after the trial on January 15th. The judgment and sentence of January 15 would be at odds with the granting of probation on January 16 since Art. 42.13, Sec. 4, V.A.C.C.P. provides that when a defendant is granted probation under the terms of the Misdemeanor Probation Law “the finding of guilt does not become final, nor may the court render judgment thereon.”

Since the instant offense was one which provided for imprisonment in jail as part of the punishment upon conviction, it was necessary that appellant be present at trial. The trial of appellant in his absence on January 16,1975 was violative of Art. 33.03, V.A.C.C.P. and amounted to the denial to appellant of his day in court. Cramer v. State, 133 Tex.Cr.R. 213, 109 S.W.2d 1054.

For the error discussed, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . We call attention to Lechuga v. State, 532 S.W.2d 581 (1975), where a penalty of three years was initially assessed and upon retrial the penalty was set at five years probated, and the record contained neither reasons for the increase in punishment nor factual data upon which such an increase could have been based. It was held that the assessment of punishment at the second trial was violative of the principle announced by the United States Supreme Court in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656.

      . Art. 40.08, V.A.C.C.P. provides in pertinent part:
      “The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place.”

      . See Arts. 40.04 and 40.03, V.A.C.C.P.


author: BROWN, Commissioner.

text:
    Harold Loyd LONG, Appellant, v. The STATE of Texas, Appellee.
    No. 50164.
    Court of Criminal Appeals of Texas.
    Dec. 10, 1975.
    Rehearing Denied Jan. 21, 1976.

      George E. Milner, Jr., Lawrence B. Mitchell, Dallas, for appellant.
    Jerry W. Woodlock, Dist. Atty., Gaines-ville, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for possession of marihuana. The jury assessed punishment at ten years’ imprisonment and a fine of five thousand dollars.

Appellant initially contends that the evidence is insufficient to support the conviction. The facts will therefore be set forth in some detail.

Eldon D. Moyers, the Sheriff of Wise County, testified that he had received reports on two prior occasions of aircraft circling and landing in a rural section of Wise County near what was described as the “Spann place.” Approximately two weeks before the appellant was arrested, the Sheriff again received a report of aircraft circling and landing in the same area. The Sheriff proceeded to a point where he could observe the area. He testified that the time was about 11:45 p. m. and he saw one aircraft take off while another aircraft circled overhead. The departing aircraft only used its landing lights for a very brief period to allow it to clear the ground. The runway lights were also on only during the aircraft’s take-off and then were turned off. At this point, the circling aircraft turned toward Decatur and was followed by the aircraft that had just taken off.

Sheriff Moyers further testified that about two weeks after his observations he and a deputy decided to visit the airstrip site to conduct further investigation. The Sheriff stated that he did not know who lived on the property, but that the name on the mailbox was Spann. The Sheriff and his deputy arrived at about 5:00 p. m., parked in the driveway, and went to the door of the house intending to inquire about the aircraft flights. The Sheriff knocked on the door facing the carport and received no answer. The Sheriff and the deputy then walked to the back door of the house and knocked. Again they received no answer. The Sheriff testified that at this point he said to the deputy, “Well, we’ll have to come back later.” They continued around the house intending to return to their car.

Sheriff Moyers testified that as they came around the west side of the house they felt a blast of heat and a strong smell coming from an open window. The smell was described as that of freshly cut marihuana. The blinds on the window were also open and when they looked into the room they saw something covering the floor and stacked around the walls. In the doorway they saw an electric heater with an electric floor fan behind it. The Sheriff stated that at this point he and the deputy returned to Decatur to obtain a search warrant.

After a search warrant was obtained, the Sheriff called the Department of Public Safety and received the assistance of several DPS narcotics agents. They returned to the property in question and set up surveillance.

Dale Hampton, a Department of Public Safety narcotics agent, testified that during the surveillance of the property he saw the appellant drive up to the residence, take some keys from his pocket, unlock the back door and enter the house. Appellant was in the house for a short period of time. A car then drove into the front yard, appellant came out of the house, locked the door, and spoke with the man in the car for several minutes. Appellant was then observed returning to the house. A short time later the appellant was observed coming back out of the house. He then drove his car out into the barnyard and hooked a two-wheel trailer to the car. Appellant then drove the car and trailer back into the yard near the house. The appellant then made several trips between the house and the trailer. The appellant was then observed to stand up in the trailer and shake out something that appeared to be a blanket or small tarp, cover the trailer with this, and tie it down. A few minutes later the appellant left the property in his car and returned a few minutes later, reentered the house, returned to the car and left again. Appellant returned to the property later in the evening with a female companion. Later still, another man and woman with a small child arrived at the house. Agent Hampton further testified that he continued to conduct surveillance of the property through the hours of darkness with the aid of a night vision scope. There was an old school bus parked in the yard of the farmstead which had apparently been converted into a camper. At about 11:20 p. m., the bus was moved around in the yard. The appellant, together with the others present, was observed making numerous trips from the house to the bus and back. This activity continued until about 8:30 a. m., when the lights in the house were turned off and all activity ceased. The surveillance continued throughout the night.

The search warrant which had been obtained on the 9th of October, 1973, was executed at approximately 7:00 a. m. on the morning of October 11, 1973, the morning after the observations testified to by Agent Hampton. When the Sheriff and the DPS agents entered the house, they found the appellant and his female companion in the east bedroom. In the front room of the house they found another couple and a small child. The small child was the only member of the household that was dressed. Agent Hampton described the house as “a mess.” “There was stuff scattered everywhere.” Marihuana was found under the dinette table and on the top of the dinette table. In the northwest bedroom the agents found marihuana all over the floor and stacked against the wall. There was no furniture in that room. In the doorway to the room with the large quantity of marihuana there were two electric heaters with a large floor fan behind them; all were running at the time, apparently for the purpose of drying the marihuana.

After making the discoveries described above, the agents proceeded to search the bus which was located within thirty or thirty-five feet of the house. In the bus the agents found what appeared to be marihuana spread out on the bunks that had been built into the bus. Next, the agents searched the two-wheel trailer, which was located approximately two hundred and fifty feet from the house. In the trailer the agents found the bottom covered with about twelve to sixteen inches of what was later shown to be marihuana.

Sheriff Moyers testified that during the search the party discovered three hundred and fifty-five pounds of what was shown to be marihuana. A qualified chemist testified that the substance found at the property was in fact marihuana.

Possession of marihuana need not be exclusive and evidence which shows that the appellant jointly possessed the marihuana with another is sufficient. Williams v. State, 524 S.W.2d 705 (Tex.Cr.App.1975); Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1975). Mere presence at a place where narcotics or dangerous drugs are possessed does not in itself justify a finding of joint possession. Curtis v. State, supra; Valdez v. State, 481 S.W.2d 904 (Tex.Cr.App.1972). The evidence must affirmatively link the appellant to the contraband in such a manner that a reasonable inference arises that the accused knew of its existence. Hineline v. State, 502 S.W.2d 703 (Tex.Cr.App.1973); Williams v. State, supra. Where the accused is not in the exclusive possession of the premises, it cannot be concluded that he had knowledge of the contraband and control of it unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Barnes v. State, 504 S.W.2d 450 (Tex.Cr.App.1974); Wright v. State, 500 S.W.2d 170 (Tex.Cr.App.1973); Williams v. State, 498 S.W.2d 340 (Tex.Cr.App.1973).

In this case, the evidence indicates that the appellant had a key to the house. He was observed entering and leaving the house on several occasions, locking and unlocking the door each time as he did so. He was observed entering and leaving the bus the night before the search. He was observed moving the two-wheel trailer and taking it off the property and bringing it back later. The record reflects that the property was under surveillance during the period in question and that no other party had control of the house or vehicles after they left the control of the appellant.

The evidence supports the verdict of the jury.

Appellant’s second ground of error is that the trial court erred in overruling his motion to suppress. It is the appellant’s contention that the search warrant was issued as the result of a prior warrantless search. Appellant contends that the first warrant-less search was illegal and that the subsequent search warrant, and the fruits thereof, were fatally tainted. We disagree. The record in this case shows that in fact no search was conducted.

The Fourth Amendment protects people and not places. What a person knowingly exposes to the public, even in his own home or office, is not subject to Fourth Amendment protection. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; Turner v. State, 499 S.W.2d 182 (Tex.Cr.App.1973). A search means, of necessity, a quest for, a looking for, or a seeking out of that which offends against the law. This implies a prying into hidden places for that which is concealed. It is simply not a search to observe that which is open to view. Turner v. State, supra; Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343 (1944).

The testimony shows that the Sheriff had received reports of aircraft landing and departing at unusual hours. The Sheriff himself observed the departure of an aircraft from the property under what can only be described as unusual circumstances. It was altogether proper that the Sheriff should at least make inquiries. The property was in a rural portion of Wise County that was sparsely settled. The Sheriff drove to the property and tried to make inquiries. The rest is stated in some detail above. It should be further noted that a photo of the house is included in the record and it is a very small frame house with a carport attached, and it does not seem at all unreasonable for the Sheriff and his deputy to have continued around the structure after receiving no answer at the rear door. The windows were open and so were the blinds. The Sheriff testified that he felt the heat and smelled the drying marihuana.

Appellant relies on the case of Texas v. Gonzales, 388 F.2d 145 (5th Cir., 1968) for his contention that the Sheriff was conducting an illegal search by looking through the window. The facts are distinguishable. In Gonzales, the officers made three trips to the window from a hiding place nearby hoping to see some narcotics. On the third trip to the window the officer stood on a drain pipe to see into the window. In Gonzales, the window was closed and the blinds were closed. This should be contrasted with Gil v. Beto, 440 F.2d 666 (5th Cir., 1971), where the Fifth Circuit denied habe-as corpus relief. In the same case on initial appeal [Gil v. State, 394 S.W.2d 810 (Tex.Cr.App.1965)], this Court held the rule to be that when one is so foolish as to leave his window open he may not complain if another observes illegal activity.

In Johnson v. State, 469 S.W.2d 581 (Tex.Cr.App.1971), officers went to the defendant’s apartment, knocked on the door and, when no one answered, looked through a window whose draperies were open and observed stolen merchandise. This Court held that looking through the window was not an illegal search, saying:

“Under this set of facts, we cannot say that appellants could ‘reasonably assume that they were free from uninvited inspection through the window’ and we must hold that no search protected by the Fourth Amendment occurred.”

Sheriff Moyers was investigating suspicious circumstances when he observed the marihuana. He then had probable cause to search and commendably sought to obtain a search warrant. As this Court stated in Turner v. State, 499 S.W.2d 182:

“(I)t is the duty of a policeman to investigate, and we cannot say that in striking a balance between the rights of the individual and the needs of law enforcement the Fourth Amendment itself draws the blinds the occupant could have drawn but did not.”

Appellant’s second ground of error is overruled.

Appellant’s third and fourth grounds of error will be discussed together as they both relate to the scope of the search authorized by the warrant. Ground of error three relates to the search of the school bus, while ground of error four relates to the search of the two-wheel trailer. It should be remembered that the appellant was charged with the possession of over four ounces of marihuana and the record reflects that significantly more than four ounces were found within the house.

The search warrant commanded the Sheriff to “enter the suspected place described in said Affidavit and to there search.” The “suspected place” was described in the warrant as follows:

“Approximately 2.5-3 miles West of State Highway 114, as it goes North from Chico, Texas, on FM 2265, going West from said highway intersection, a white frame house with gray trim; a yellow and black school bus having the name of Schulenburg (See attached exhibit # 1)
EXHIBIT # 1 .
Independent School District, partly blocked out, said school bus now having pink curtains on the windows. The mailbox at said house bears the name ‘Spann’. The location lies just Easterly, approximately 2-3 hundred yards of a house and property belonging to W. D. Martin.”

The authorities cited by the appellant are not directly in point. Certainly if the warrant in this case had contained the phrase “including all other structures, vehicles, and places on the premises,” appellant’s third and fourth grounds of error would be clearly without merit. However, the warrant before us contains no such phrase.

Clearly the “suspected place” was the farmstead, not simply the house as the appellant contends. After finding contraband in the house, we cannot say that the search of the bus located only a few yards from the house was unreasonable. The bus had been moved the night before the search warrant was executed and the appellant had been seen in and around the bus. Only after more contraband had been found in the bus was the scope of the search widened to the trailer which was located some 250 feet from the house and was within the curtilage of the farmstead.

The test to be applied in searches without a warrant or beyond the scope of a search warrant is whether the search was unreasonable since only unreasonable searches are prohibited by the Fourth Amendment. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. What is reasonable cannot be determined by a rigidly fixed formula. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653. Nor can the test be stated in rigid and absolute terms. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399. In short, what is reasonable within the meaning of the Fourth Amendment depends on the facts and circumstances of each case. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (Harlan, J., concurring).

Under the facts and circumstances of this case, the search was not unreasonably broad in its scope. Therefore, the appellant’s third and fourth grounds of error are overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Herbert Lee JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 50769.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.

      Jim B. Brown, Canyon, for appellant.
    Randall Sherrod, Dist. Atty., Richard L. Wilcox, Asst. Dist. Atty., Canyon, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction in a bench trial for the burglary of a habitation under V.T.C.A. Penal Code, Sec. 30.02, wherein the punishment was assessed at ten (10) years’ confinement in the Department of Corrections.

Among appellant’s grounds of error are contentions that testimony of the accomplice witnesses was not corroborated and that the evidence was insufficient to show that the structure involved was in fact a habitation as defined by the Penal Code.

In connection with the corroboration question, we observe that appellant took the stand in support of his motion, for probation and made a judicial confession he had burglarized the structure involved. This would clearly meet the requirements of Article 38.14, Vernon’s Ann.C.C.P. See Kennedy v. State, 78 Tex.Cr.R. 24, 180 S.W. 238 (1915); Scott v. State, 167 Tex.Cr.R. 77, 318 S.W.2d 650 (1958); Ward v. State, 399 S.W.2d 567 (Tex.Cr.App.1966).

The structure shown to have been burglarized was owned by Richard Farrell, a general contractor who lived at 2617 South Hughes in Amarillo. The burglarized structure was located at 5301 Hall, Amarillo, in Randall County. Farrell testified the house was completed and he had entered a contract of sale for the house the day before the burglary, but that possession had not changed hands. He admitted that no one was living there or had lived there. He related that there was no furniture in the house, no refrigerator, and while there were light fixtures, there may not have been “power,” although there was a water connection. Farrell testified that the burglars had taken carpeting from the floor. John Wesley Wooten, an accomplice witness, testified he and the appellant and others at night took carpeting from the house which was vacant and had no furniture.

V.T.C.A. Penal Code, Sec. 30.02 (Burglary), in pertinent part provides:

“(a) A person commits an offense if, without the effective consent of the owner, he:
“(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; or . . ..”

This statute also provides that all burglaries under this section are felonies of the second degree except that an offense under the section is a felony of the first degree if:

“(1) the premises are a habitation; or
“(2) any party to the offense is armed with explosives or a deadly weapon; or
“(3) any party to the offense injures or attempts to injure anyone in effecting entry or while in the building or in immediate flight from the building.”

V.T.C.A. Penal Code, Sec. 30.01 (Definitions), provides:

“In this chapter:
“(1) ‘Habitation’ means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes:
“(A) each separately secured or occupied portion of the structure or vehicle; and
“(B) each structure appurtenant to or connected with the structure or vehicle.
“(2) ‘Building’ means any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.
“(3) ‘Vehicle’ includes any device in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation, except such devices as are classified as ‘habitation.’ ” (Emphasis Supplied)

Under the former Code there was the separate and distinct offense of burglary of a private residence at night. See Article 1391, Vernon’s Ann.P.C., 1925. It provided for a penalty of “any term not less than five years,” which was considerably higher than the punishment for ordinary burglary. See Article 1397, Vernon’s Ann.P.C., 1925. The statute expressly provided the “term ‘private residence,’ as used herein, means any building or room occupied and actually used at the time of the offense by any person as a place of residence.” An essential element of the offense was that it occurred at night. The daytime burglary of a private residence was not affected by enactment of the statute, but was left an offense as a burglary of a house. 4 Branch’s Ann.P.C., 2d ed., Sec. 2524.1, p. 842, and cases there cited. It was also essential under Article 1391, supra, that the evidence show that the house was a “private residence” as defined by the statute even though no one was present at the time of the offense. See Smith v. State, 126 Tex.Cr.R. 226, 70 S.W.2d 595 (1934); White v. State, 166 Tex.Cr.R. 267, 312 S.W.2d 639 (1958); Kizer v. State, 400 S.W.2d 333 (Tex.Cr.App.1966).

We must try to determine how closely analogous the term “habitation” in the new Penal Code is to the phrase “private residence” as defined in the former Code.

In the Explanatory Comment on said Section 80.01 of the new Penal Code in 2 Branch’s Ann.P.C., 3rd ed., p. 333, it is stated the definition of “habitation” was derived from the Model Penal Code and covers house trailers, many boats and other forms of conveyances adapted for overnight accommodations, as well as garages and outbuildings. Such comment further observed that the “concept of an increased penalty for a burglary committed in a dwelling is retained.”

In the proposed official draft of the Model Penal Code, May 4,1962, is found Section 221.0(1) which provides:

“In this Article, unless a different meaning plainly is required:
“(1) ‘occupied structure’ means any structure, vehicle or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present.”

Under the “Status of Section” relating to said Section 221.0(1) it was observed that the definition of “occupied structure” derives from subsection (1) of Section 221.1— Burglary in Tentative Draft # 11, Model Penal Code. Said Section 221.1(1) of such proposed tentative draft provides:

“A person is guilty of burglary if, without privilege to do so, he enters any building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit any crime. Occupied structure includes a ship, trailer, sleeping car, or other vehicle adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present. It is an affirmative defense to prosecution for burglary of a building that it was abandoned or so deteriorated as to be manifestly unsuited for occupancy.”

In addition, it is observed a few statutes employ the concept “inhabited dwelling,” which like the “occupied structure” of the Model Penal Code does not require actual presence. E. g., Ala.Code Ann., Title 14, Sec. 84 (1940); Ohio Rev.Code, Sec. 2907.09 (1959).

In the proposed revision of the Texas Penal Code by the State Bar Committee, the Preliminary Final Draft, September, 1970, defines “habitation” just as the Legislature subsequently did in the enactment of the 1974 Penal Code, which definition the Committee Comment stated was derived from Minn.Stat.Ann., Sec. 609.58, Subd. 1(2); New Hampshire Prop.Crim.Code, Sec. 580:1(111) (now repealed), as well as from the Model Penal Code. The Committee Comment in said Preliminary Final Draft states:

“ ‘Habitation’ is broader than ‘building’ in that it includes vehicles that are ‘adapted for the overnight accommodation of persons,’ Section 30.01(1). ‘Habitation’ also includes garages and other outbuildings, Section 30.01(1)(B), and ‘separately secured and occupied portions’ of a habitation, to cover those who, while legally in an apartment building or hotel, for example, enter another’s room, Section 3Q.01(1)(A).”

See Practice Commentary to said Sec. 30.02 to the same effect.

The Committee Comment also noted that, because the need for security is most exigent in a “habitation,” the Committee graded burglary of a “habitation” a first degree felony.

With this background, we now turn to the question of whether the completed but vacant and unused house in the instant case with no furniture and where water but no other utilities had been connected was a “habitation” within the meaning of V.T. C.A. Penal Code, Sec. 30.02. The question would appear to turn on the phrase “adapted for the overnight accommodation of persons” or more precisely on the word “adapted.”

The State cites Black’s Law Dictionary for the proposition that “adapted” means “capable of use.” Greater Webster Encyclopedic Dictionary of English Language (1967) defines the term as meaning “made suitable.” Accord: The Random House Dictionary of the English Language, Unabridged Edition (1967); The Reader’s Digest Great Encyclopedic Dictionary (1966). Neither phrase is particularly helpful in and of itself. Considering the background of the statute, we cannot conclude the Legislature intended for the purpose of the offense to make a “habitation” out of every structure or vehicle that could be converted in the future into overnight accommodation of persons or was “capable of use” as such. To so hold would mean that every pickup truck capable sometime in the future of having bedrolls spread in the “bed” of the truck could be subject of the offense of burglary of a “habitation.” Followed to its logical conclusion, such holding would mean that almost all burglaries would be indictable as burglaries of habitations, first degree felonies. We cannot conclude the Legislature intended such result.

As the “Practice Commentary” following V.T.C.A. Penal Code, Sec. 30.02, suggests, the protection of private homes is the traditional basis for treating burglary as a separate offense from trespass, theft or felony committed after a burglarious entry. It is upon reflecting on the historical purpose of the burglary statutes and the background of the instant statute that we must reject the broadest possible interpretation of the word “adapted” used in V.T.C.A. Penal Code, Sec. 31.01, and instead conclude the term should be considered in a manner consonant with the reasons for holding that a burglar of a “habitation” should receive a higher penalty than a burglar of a “building.” Though it appears that “habitation” was meant to be broader than the term “private residence” as used in the former Code, we cannot conclude that its definition is broad enough to hold that the structure in the present case was “adapted for the overnight accommodation of persons.” To hold otherwise would raise the question of when a house under construction becomes a “habitation.” Does it become a habitation as soon as the walls are up, the rafters in place, the siding on, or framing completed, etc., etc.? We hold that the structure or vehicle must at the time of the alleged offense have been actually “adapted for the overnight accommodation of persons” or at least at some prior time used for the overnight accommodation of persons and still “adapted for the overnight accommodation of persons.”

Support for this interpretation is found in the definition of a “building” in Sec. 30.-01(2), supra. There, it was stated: “ ‘Building’ means any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.” Thus, if the definition of a “building” as a structure “intended for use or occupation as a habitation” can have any meaning, then “habitation” cannot be construed as meaning a structure or a vehicle intended to be used as a residence or a dwelling. The conviction for burglary of a habitation in the instant case cannot stand, but we must now determine if the conviction can be upheld as a burglary of a building since the punishment assessed (10 years) is applicable to both a first and second degree felony.

It should be remembered that burglary of a private residence at night under Article 1391 of the former Penal Code was a separate and distinct offense from burglary at night of a house other than private residence as defined by Article 1390 and was a separate and distinct offense from a burglary committed in the daytime by breaking and entering any house, whether a private residence or not. 4 Branch’s Ann.P.C., 3rd ed., Sec. 2524.1, p. 842, and numerous cases there cited.

Further, it was the consistent holding of this court that a conviction could not be sustained under an indictment which charged only ordinary burglary where the proof showed burglary of a private residence at night. Foster v. State, 110 Tex.Cr.R. 594, 9 S.W.2d 1037 (1928); Martin v. State, 123 Tex.Cr.R. 82, 57 S.W.2d 1104 (1933); Crawford v. State, 127 Tex.Cr.R. 550, 78 S.W.2d 623 (1935); Converse v. State, 141 Tex.Cr.R. 273, 148 S.W.2d 424 (1941). Likewise, a conviction for ordinary burglary could not be supported by an indictment charging burglary of a private residence at night. Robinson v. State, 82 Tex.Cr.R. 570, 200 S.W. 162, 166 (1918); Bowie v. State, 401 S.W.2d 829 (Tex.Cr.App.1966).

It is clear that under the former Code burglary was not a lesser included offense of burglary of a private residence at night.

In addition to eliminating any distinction between nighttime and daytime burglaries, the present Penal Code contains no language that would render burglary of a habitation such a separate and distinct offense that there could not be lesser included offenses if all other requirements are met.

At the same time the 1974 Penal Code was enacted there was a conforming amendment to Article 37.09, Vernon’s Ann. C.C.P. It now reads:

“An offense is a lesser included offense if:
“(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
“(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
“(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
“(4) it consists of an attempt to commit the offense charged or an otherwise included offense.”

In light of the above statute and the provisions of V.T.C.A. Penal Code, Sec. 30.-02, we conclude that burglary of a “building” is a lesser included offense of burglary of a “habitation” where the proof shows an enclosed structure.

In the instant case, while the conviction cannot be sustained as a burglary of a habitation under the facts proved, the proof is sufficient to sustain a conviction for burglary of a building. Since the penalty was assessed by the trial judge and since the punishment was ten (10) years, which falls both within the range of punishment for both a first degree felony (V.T.C.A. Penal Code, Sec. 12.32) and a second degree felony (V.T.C.A. Penal Code, Sec. 12.33), the conviction can be affirmed as a conviction for burglary of a building with the judgment and sentence reformed accordingly.

In light of our conclusion, we must consider appellant’s contention, otherwise irrelevant, that V.T.C.A. Penal Code, Sec. 30.01, Subsection (2) is unconstitutional because it is too vague “to determine the meaning of a building intended for use or occupation as a habitation.” No authority is cited, and we cannot conclude from the argument advanced that the contention has merit.

As reformed, the judgment is affirmed.

      . It is true that the trial judge permitted the bench trial to be bifurcated without objection and that the appellant did not testify until the “penalty” stage of the trial. While Article 37.07, Vernon’s Ann.C.C.P., does not require a bench trial to be bifurcated, cf. Morales v. State, 416 S.W.2d 403 (Tex.Cr.App.1967), we cannot conclude a different result should be reached in light of the authorities cited because the appellant testified after the court had found him guilty at the “guilt” stage of the trial. See and cf. Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1971); Garcia v. State, 522 S.W.2d 203 (Tex.Cr.App.1975). We find no merit in appellant’s contention that in his attempt to obtain probation by taking the stand he was denied his constitutional right to remain silent and was thus required to give evidence against himself and by his testimony cured any errors occurring during the “guilt” stage of the trial.

      . Article 1391, supra, provides as follows: “The offense of burglary of a private residence at night is constituted by entering a private residence by force, threats or fraud, at night, or in any manner by entering a private residence at any time, either day or night, and remaining concealed therein until night, with the intent, in either case, of committing a felony, or the crime of theft. The term ‘private residence,’ as used herein, means any building or room occupied and actually used at the time of the offense by any person as a place of residence. One guilty of burglary of a private residence at night shall be confined in the penitentiary for any term not less than five years. Such burglary is a distinct offense, and nothing making it such shall alter or repeal the two preceding articles.”

      . Said Section 12.32 provides that the punishment for a first degree felony shall be by confinement in the Department of Corrections for any term of not more than 99 years or less than five years. Burglary of a habitation is a first degree felony. See V.T.C.A. ■Penal Code, Sec. 30.02.

      . Said Section 12.33 provides that the punishment for a second degree felony shall be by confinement in the Department of Corrections for any term of not more than 20 years or less than two years. In addition, a fine of $10,000 or less may be imposed. Burglary of a building is a second degree felony. V.T.C.A. Penal Code, Sec. 30.02.


author: DALLY, Commissioner. ONION, Presiding Judge

text:
    Osvaldo Rivera SUAREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 51096.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.
    See also Tex.Cr.App., 532 S.W.2d 606.
    Percy Foreman and Dick DeGuerin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Gerard Guerinot, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of delivery of marihuana. After the appellant waived a jury trial, entered a plea of guilty, and was found guilty, the court assessed appellant’s punishment at imprisonment for 5 years.

We have in this appeal a question of the sufficiency of the indictment. The indictment alleged in the first count that the appellant “on or about March 27, 1974, did then and there unlawfully, knowingly and intentionally, deliver to Tom Garner marihuana.” The second count of the indictment alleged that the appellant possessed on the same day a usable quantity of marihuana of more than four ounces. However, the State dismissed and abandoned the second count of the indictment.

This prosecution is under Section 4.05 of the Controlled Substances Act (Art. 4476-15, V.A.C.S.), which in part provides:

“(d) Except as otherwise provided by this Act, a person commits an offense if he knowingly or intentionally delivers marihuana.
“(e) Except as provided in Subsection (f) of this section, an offense under Subsection (d) of this section is a felony of the third degree.
“(f) An offense under Subsection (d) is a Class B misdemeanor if the actor delivers one-fourth ounce or less without receiving remuneration.”

The proper interpretation of these statutory provisions is that (1) delivery of more than one-fourth ounce of marihuana is a felony of the third degree regardless of whether the delivery was for remuneration; (2)the delivery of any amount of marihuana for remuneration is a felony of the third degree; and (3) the delivery of less than one-fourth ounce of marihuana without remuneration is a Class B misdemeanor. Gonzales v. State, Tex.Cr.App., 530 S.W.2d 570 (Nos. 51,166 and 51,167, delivered December 10, 1975).

Since the indictment in this case failed to allege the quantity of marihuana delivered or whether the delivery was for remuneration, it does not allege a felony offense. See Wilson v. State, 520 S.W.2d 377 (Tex.Cr.App.1975); Mears v. State, 520 S.W.2d 380 (Tex.Cr.App.1975); Medrano v. State, 524 S.W.2d 719 (Tex.Cr.App.1975); Tribble v. State, 525 S.W.2d 29 (Tex.Cr.App.1975); Wirges v. State, 521 S.W.2d 251 (Tex.Cr.App.1975); Saunders v. State, 528 S.W.2d 843 (Tex.Cr.App.1975); Finley v. State, 528 S.W.2d 854 (Tex.Cr.App.1975).

In the cases just cited the indictments failed to allege that the delivery of marihuana was for remuneration and failed to allege that the delivery was of more than one-fourth ounce. These indictments were held to be fundamentally defective and the prosecution was ordered dismissed. We reaffirm the holding of these cases except that we have now concluded and hold that an indictment which fails to allege the quantity of marihuana delivered or that it was delivered for remuneration alleges an offense punishable as a Class B misdemeaner. The proper disposition of this ease requires that we reverse the judgment of conviction for the felony offense and we remand the cause to the trial court to be transferred to a court having jurisdiction of the misdemeanor offense of the delivery of marihuana. Article V, Section 17, Texas Constitution; Article 21.26, V.A.C.C.P.

The judgment is reversed and the cause is remanded for disposition consistent with this opinion.

Opinion approved by the Court.

ONION, Presiding Judge

(concurring in part and dissenting in part).

I concur in the reversal, but not for the reasons stated.

PART I

Until today this court had consistently held that failure of an indictment to allege that the delivery of marihuana (under Sec. 4.05, Texas Controlled Substances Act) without alleging the amount or that the delivery was with remuneration rendered the indictment fatally defective; that such allegations did not reflect what possible punishment was involved, whether the offense is a misdemeanor or a felony, or whether the district court had jurisdiction. Under the previous cases it became clear, as will be shown, that such indictment was fundamentally defective and the question could be raised on appeal for the first time without a motion to quash filed in the court below.

Today the majority expressly states:

“We reaffirm the holding of these cases except that we have now concluded and hold that an indictment which fails to allege the quantity of marihuana delivered or that it was delivered for remuneration alleges an offense punishable as a Class B misdemeanor.”

It is difficult to see how the cases are being “reaffirmed” when they are so seriously eroded by the statement that allegations formerly thought to be fatally defective are now sufficient to allege a Class B misdemeanor. This effectively destroys the meaning of the former cases and is accomplished simply with a statement, “. we have now concluded . . . .” No rhyme or reason is given for the change. No explanation is made why the former reasoning was in error, totally or in part. The majority, because it has the authority to do so, simply makes the bald-faced statement involving their present conclusion and says no more. Surely the bench and the bar are entitled to more than this. The allegation of delivery of marihuana without reference to amount or whether it was with remuneration comes far closer under the statute to alleging a felony rather than a misdemeanor, but, nonetheless, I would adhere to the former holdings of this court now so clearly undermined by “reaffir-mance.”

The offense of delivery of marihuana is governed by the provisions of Section 4.05, Subsections (d), (e) and (f) of the Texas Controlled Substances Act (Article 4476-15, Vernon’s Ann.C.S.), which provides:

“(d) Except as otherwise provided by this Act, a person commits an offense if he knowingly or intentionally delivers marihuana.
“(e) Except as provided in Subsection (f) of this section, an offense under Subsection (d) of this section is a felony of the third degree.
“(f) An offense under Subsection (d) is a Class B misdemeanor if the actor delivers one-fourth ounce or less without receiving remuneration.”

Means v. State, 520 S.W.2d 380 (Tex.Cr.App.1975), was actually the first case in which this court was confronted with the sufficiency of an indictment which merely alleged that the defendant knowingly and intentionally delivered marihuana. On appeal the question raised was whether the indictment was fundamentally defective because it did not allege the quantity of marihuana delivered or allege the delivery was for remuneration. The court simply concluded that the indictment was fundamentally defective for failure to allege the amount of marihuana delivered.

Wilson v. State, 520 S.W.2d 377 (Tex.Cr.App.1975), handed down the same day as Means, held that the subsections of said Section 4.05, above cited, provide for a third degree felony offense for the delivery of any amount of marihuana above the amount of one-fourth ounce, regardless of whether there was remuneration or not. If the amount delivered is one-fourth ounce or less and the actor does not receive remuneration, the offense is a Class B misdemeanor. The opinion held that if the delivery of one-fourth ounce or less was with remuneration, the offense was a third degree felony.

The opinion then stated:

“Therefore, to allege a felony under these subsections, the indictment should allege that the defendant did knowlingly (sic) or intentionally deliver marihuana of more than or in excess of one-fourth ounce or allege that the delivery was one-fourth ounce or less with remuneration.”

The court further stated:

“We conclude that the failure of the indictment in the instant case to allege the amount of marihuana delivered or other allegations of remuneration so as to reflect what punishment was involved, whether the offense is a misdemeanor or felony, or whether the District Court had jurisdiction renders the indictment fundamentally defective.”

Subsequently, in Wirges v. State, 521 S.W.2d 251 (Tex.Cr.App.1975), the felony information, following waiver of indictment, charged the defendant “did then and there knowingly deliver to Steve E. Dun-ham a useable quantity of marihuana.” Such information was held fundamentally defective for failure to allege the amount of marihuana. The concurring opinion noted that the allegation “useable quantity” is a necessary allegation in a possession of marihuana case under said Section 4.05, but was not a necessary allegation in a delivery of marihuana case under the same section.

In Medrano v. State, 524 S.W.2d 719 (Tex.Cr.App.1975), the indictment was held fatally defective for failure to allege the quantity delivered or that delivery was for remuneration. The court noted it was not significant that a motion to quash the indictment was not filed in the trial court since the error goes to the very jurisdiction of the district court. Mears and Wilson were cited.

Again in Tribble v. State, 525 S.W.2d 29 (Tex.Cr.App.1975), this court held the indictment was fatally defective in that it failed to allege the amount of marihuana delivered or to allege that the marihuana was delivered for remuneration so as to reflect what punishment was involved, whether the offense was a misdemeanor or a felony, or whether the district court has jurisdiction. To the same effect are the recent cases of Saunders v. State, 528 S.W.2d 843 (Tex.Cr.App.1975), and Finley v. State, 528 S.W.2d 854 (Tex.Cr.App.1975).

More recently in Gonzales v. State, 530 S.W.2d 570 (Tex.Cr.App., Nos. 51,166 and 51,167, delivered December 10, 1975), we were confronted with an indictment which did not allege the amount or quantity of marihuana but alleged only that the marihuana was delivered with remuneration. We concluded that the indictment was sufficient to allege a third degree felony and overruled the contention the indictment was fatally defective.

I would adhere to the foregoing cases and would find the indictment in the instant case fatally defective not alleging either a felony or a misdemeanor.

The majority, by concluding without explanation that the instant indictment charges a misdemeanor, destroys most of the underpinnings of the above described cases. No longer can it be said that such an indictment does not charge either a felony or misdemeanor, nor that the indictment is fatally defective not requiring a motion to quash. The only thing left is that such an indictment does not show on its face that the district court has jurisdiction, but even this wouldn’t be true in all cases since some district courts have been given misdemean- or jurisdiction. Today’s decision effectively overrules the above described cases, although the majority oddly says the cases are being reaffirmed.

If the majority is determined to retreat from the above described cases with or without acknowledgement, it would be far more logical to hold that an indictment such as in the instant case alleges a felony offense of delivery of marihuana. By virtue of Subsection (a) of Section 4.05 of the Texas Controlled Substances Act, it is made clear that any delivery of marihuana is an offense, and it is clear from earlier cases all deliveries are third degree felonies except for the narrow exception provided in Subsection (f) which stated that the offense is a Class B misdemeanor if the delivery consists of one-fourth ounce or less and it is done without remuneration. Thus, an indictment that merely alleges a knowing or intentional delivery of marihuana comes far closer to alleging a felony than a misdemeanor. The majority should take note.

PART II

In addition to adhering to the above described cases which hold that the instant indictment is fundamentally defective and which would call for reversal, I would also reverse for the failure of the evidence to support the plea of guilty to the felony offense of delivery of marihuana as required by Article 1.15, Vernon’s Ann.C.C.P. There was a sworn written “judicial confession” entered as a part of the stipulation, but it tracked the indictment and did not show that the delivery involved one-fourth ounce or more of marihuana or that the delivery was with remuneration. There was no other evidence offered by the State to support the plea and the appellant offered none. The majority considers the indictment question “in the interest of justice.” See Article 40.09, Sec. 13, Vernon’s Ann.C.C.P. Likewise, I would consider the sufficiency of the evidence question and reverse.

Further, it should be observed that appellant on appeal complains only that he was not properly admonished in accordance with Article 26.13, Vernon’s Ann.C.C.P., at the time of his guilty plea on June 19, 1974, in that the court improperly admonished him as to the range of punishment (consequences of his plea). The court obviously treated the offense as a third degree felony and admonished appellant the punishment would be confinement in the Department of Corrections for not less than two nor more than 10 years. Appellant complains that the court failed to inform him that in addition he could under the provisions of V.T. C.A. Penal Code, Sec. 12.34 (Third Degree Felony Punishment) have received a fine not to exceed $5,000. While the State relies upon Tellez v. State, 522 S.W.2d 500 (Tex.Cr.App.1975), which overruled Alvarez v. State, 511 S.W.2d 521 (Tex.Cr.App.1974), I would also reverse this conviction, however, for the same reasons stated in the dissenting opinion in Tellez v. State, supra.

For the reasons set forth, I concur only in the reversal reached by the majority.

      . Nothing herein precludes re-indictment consistent herewith.

      . The majority indicates the indictment may upon remand be transferred to a court having misdemeanor jurisdiction or that the State may seek re-indictment.


author: GREEN, Commissioner. ONION, Presiding Judge

text:
    David John DURHAM, Appellant, v. The STATE of Texas, Appellee.
    Nos. 50530, 50531.
    Court of Criminal Appeals of Texas.
    Jan. 21, 1976.
    Joe Slator Petsch, Del Rio, for appellant.
    John F. Pettit, Dist. Atty., Durwood Edwards, Asst. Dist. Atty., Del Rio, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In the two cases, appellant was convicted of delivery of marihuana. Punishment in each case was assessed at three years.

The indictments in both cases allege that on or about the named date (October 19, 1973 in No. 50,530, and November 2,1973 in No. 50,531) appellant “did then and there unlawfully, knowingly and intentionally deliver marihuana to Richard Cantwell.”

Section 4.05 of the Texas Controlled Substances Act provides for offenses involving both the possession and delivery of marihuana. The portions of Sec. 4.05 applicable to offenses relating to the delivery of marihuana are subsections (d), (e), and (f), providing as follows:

“(d) Except as otherwise provided by this Act, a person commits an offense if he knowingly or intentionally delivers marihuana.
“(e) Except as provided in Subsection (f) of this section, an offense under Subsection (d) of this section is a felony of the third degree.
“(f) An offense under Subsection (d) is a Class B misdemeanor if the actor delivers one-fourth ounce or less without receiving remuneration.”

This appeal will be disposed of on the insufficiency of the indictments to allege a felony offense.

As we stated in Suarez v. State, Tex.Cr.App., 532 S.W.2d 602 (No. 51,096, January 21, 1976),

“The proper interpretation of these statutory provisions is that (1) delivery of more than one-fourth ounce of marihuana is a felony of the third degree regardless of whether the delivery was for remuneration; (2) the delivery of any amount of marihuana for remuneration is a felony of the third degree; and (3) the delivery of less than one-fourth ounce of marihuana without remuneration is a Class B misdemeanor. Gonzales v. State, Tex.Cr.App., 530 S.W.2d 570 (Nos. 51,166 and 51,167, delivered December 10, 1975).”

Since the indictments in the instant cases do not allege the quantity of marihuana delivered, or whether the delivery was for remuneration, they do not allege a felony offense. Suarez v. State, supra, and authorities there cited; Gonzales v. State, supra; Wilson v. State, Tex.Cr.App., 520 S.W.2d 377. However, for the reasons stated in Suarez, we hold, as we held in that case, that an indictment which alleges the offense of delivery of marihuana, but fails to allege the quantity of marihuana delivered or that it was delivered for remuneration, alleges an offense punishable as a Class B misdemeanor.

We accordingly reverse the judgments of conviction for felony offenses, and remand the causes to the trial court for transfer to a court having jurisdiction of the misdemeanor offense of delivery of marihuana. See Suarez v. State, supra.

Opinion approved by the Court.

ONION, Presiding Judge

(concurring in part and dissenting in part).

For reasons stated in Part I of my opinion concurring in part and dissenting in part in Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App. # 51,096, delivered January 21, 1976), I concur in part and dissent in part.

      . Nothing herein precludes reindictment consistent herewith.