author: ODOM, Judge. DOUGLAS, Judge. ODOM, Judge,

text:
    Robert JOHNSON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 54058.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 21, 1977.
    Opinion on State’s Motion for Rehearing April 26, 1978.
    Joseph C. Hawthorn, Beaumont, court appointed on appeal, for appellant.
    Tom Hanna-, Dist. Atty., John R. DeWitt, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated assault upon a police officer; punishment was assessed at two years.

The sufficiency of the evidence is not challenged; therefore, only a brief version of the facts is necessary. The evidence reflects that Deputy Constable Mike Mason had an outstanding arrest warrant for one Robert Johnson, Jr. On July 1,1975, Mason located appellant at his place of employment, identified himself as a peace officer, and informed appellant that he had a warrant for his arrest. Appellant became agitated and made an unsuccessful attempt to show Mason that he was not the person named in the warrant. Appellant refused to go with Mason in response to the warrant, so Mason attempted to handcuff him. Appellant resisted the arrest, and a five to ten minute struggle ensued during which Mason received a blow to the face and a cut on his hand. Appellant denied striking the officer and testified that he had been jumped by five police officers without just cause. The jury rejected appellant’s defense.

In his brief appellant contends, “The trial court erred in failing to halt the trial on the merits and obtain a finding as to the Appellant’s competency to stand trial.” Citing Bonner v. State, Tex.Cr.App., 520 S.W.2d 901, he argues that where evidence of incompetency becomes manifest during the trial, due process requires the trial judge on his own initiative to halt the trial and conduct a hearing.

At the time of trial in June 1976 this due process requirement had been incorporated into the statutory law of this state. Article 46.02, Sec. 2(b), V.A.C.C.P., provides:

“If during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.” (Emphasis added.)

This language is mandatory. The hearing by the court mandated by this provision is not the incompetency hearing itself, but is for the purpose of determining whether an incompetency hearing will be held.

In the instant case, during the ten months prior to trial, appellant’s court-appointed counsel filed three separate motions requesting psychiatric examinations, all of which were granted by the trial court. Two psychiatrists reported that appellant was competent to stand trial, even though there were some indications of delusions and paranoia. Another psychiatrist’s report indicated that he believed appellant was competent, but that he had refused to cooperate with the examinations. A clinical psychologist’s report was inconclusive due to appellant’s failure to cooperate. The last of these reports was submitted to the trial court approximately three weeks prior to trial. Defense counsel also filed with the court a motion for a preliminary hearing on the issue of competency to stand trial, indicating that he was of the opinion that appellant was unable to assist in the preparation of his defense. The record does not reflect that this motion was acted upon by the trial court.

While these pre-trial reports indicate appellant was competent and would be evidence of that fact, the existence of evidence that an accused is competent does not dilute or remove the unambiguous language of Sec. 2(b), supra, that requires a hearing by the court if evidence of incompetency is brought to its attention during the trial. We must therefore look beyond these pretrial reports and examine the evidence appellant contends triggered the due process requirements now found in Sec. 2(b), supra. In weighing this evidence, however, it should be kept in mind that the statutory standard that required the court’s hearing is, “If during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source . ” Under prior case law a higher standard governed:

“If the evidence which comes before the Court from any source is sufficient to create in the Judge’s mind a reasonable ground to doubt the competency of the accused to stand trial he should conduct a hearing out of the presence of the jury to determine whether or not there is in fact an issue as to the competency of the accused to stand trial.” (Emphasis added.) Quintanilla v. State, Tex.Cr.App., 508 S.W.2d 647.

Under the plain language of the controlling statute, it is no longer necessary that the evidence be sufficient to create a reasonable doubt in the judge’s mind before a hearing is required; it is sufficient to require such a hearing that any evidence of incompetency from any source is brought to the attention of the court during the trial. We turn now to the evidence presented to the court during the trial.

In the case at bar counsel had indicated his belief that appellant was incompetent prior to trial, and within the first few moments of the trial counsel told the court that he did not believe that appellant “fully realizes the consequences of what could happen to him” concerning pre-trial procedural requirements.

Appellant’s brother, James Johnson, testified that appellant had had several nervous breakdowns; that his condition was “out of control” and that he had been hospitalized in two mental hospitals in California. The brother related that the arrest warrant that officer Mason served was based upon a charge he had filed because “that’s the only way I can seek help for him.”

When testifying in his own behalf, appellant lapsed into a rambling narrative stating that he had been “under surveillance for five years” by certain law enforcement officials; that certain documents and pieces of his private mail had been stolen from him; that there was a conspiracy among certain parties to keep him from informing the public that the “water in the city of Beaumont was drugged,” and also that there was a conspiracy among the trial officials, including the trial judge and his attorney, to send him to the penitentiary unjustly. Appellant’s actions and his testimony do not appear to us to be “clear and lucid.”

We hold that under the standard of Art. 46.02, Sec. 2(b), supra, this evidence was sufficient to require the trial court to “conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.”

For failure to follow this mandatory statute, the judgment is reversed and the cause remanded.

Before the Court en banc.

OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

On original submission, we reversed appellant’s conviction holding that sufficient evidence existed to require the trial court on its own motion to halt the trial on the merits and conduct a hearing to determine his competency to stand trial. We now conclude that the evidence was insufficient to create reasonable grounds to doubt the present competency of the appellant.

Prior to the amendment of Article 46.02, V.A.C.C.P., we consistently held that before a court will be required to halt proceedings on its own motion it is necessary that evidence come before it, from some source, of sufficient force to create in the judge’s mind reasonable grounds to doubt a defendant’s competency. Bonner v. State, 520 S.W.2d 901 (Tex.Cr.App.1975); Ballard v. State, 514 S.W.2d 267 (Tex.Cr.App.1974); King v. State, 511 S.W.2d 32 (Tex.Cr.App.1974); Quintanilla v. State, 508 S.W.2d 647 (Tex.Cr.App.1974); Perryman v. State, 507 S.W.2d 541 (Tex.Cr.App.1974). Our holdings have followed the decision of the Supreme Court of the United States in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), and have, on occasion, adopted Justice Clark’s expression that the evidence must raise a “bona fide doubt” as to a defendant’s competency to stand trial. Ex parte Halford, 536 S.W.2d 230 (Tex.Cr.App.1976); Wilborn v. State, 491 S.W.2d 432 (Tex.Cr.App.1973); Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968).

Article 46.02(2)(b), V.A.C.C.P., provides:

“If during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.”

By its enactment of Article 46.-02(2)(b), the Legislature did not intend to enlarge upon Pate v. Robinson but sought to codify its holding as well as prior Texas case law. By its use of the terms “evidence from any source,” Article 46.-02(2)(b) merely reiterated the language of Townsend v. State, supra, in which we noted that a bona fide doubt in the mind of a trial judge as to a defendant’s competency may stem “from personal observations, or facts known to him, or from evidence presented, or by motion of the accused or his counsel, or by affidavit or from any reasonable claim or credible source.” Thus, the words “any source” as they are employed in Article 46.02(2)(b) and the decisions of this Court speak to the origin of proof, not to its probative weight.

That the judge may consider evidence from any source should not be construed to mean that just any evidence will require the court to halt a defendant’s trial and determine whether an issue as to his competency exists. In enacting Article 46.-02(2)(b), the Legislature neglected to specify the standard of proof which must be met before an interruption of trial proceedings will be required. By its omission, however, the Legislature did not intend to abrogate the “bona fide doubt” standard to which this Court has so long adhered. As we stated in Lovell v. State, 525 S.W.2d 511 (Tex.Cr.App.1975):

“In enacting a statute [it is presumed that] ... a just and reasonable result is intended and a result feasible of execution is intended.”

An interpretation of Article 46.02(2)(b) to mean that any evidence will be sufficient to require a halting of proceedings and a separate determination on competency would produce unreasonable results not anticipated by the Legislature. Such a construction necessitates that a judge conduct a competency hearing on the basis of even the most insubstantial and inconsequential evidence and where no reasonable grounds exist for him to doubt the present mental capacity of the accused. The burden thus thrust upon trial courts, and the potential for abuse of the statute by defendants feigning mental illness, is evident. We do not believe the Legislature intended to mandate such an interruption of a trial on the merits in response to baseless claims of incompetency but only in cases where evidence of incompetency becomes so manifest as to raise a bona fide doubt.

We stated in Newsom v. State, 372 S.W.2d 681 (Tex.Cr.App.1963):

“[I]n construing a statute its subject matter, reason and effect must be looked to and when a literal enforcement would lead to consequences which the Legislature could not have contemplated, the Courts are bound to presume that such consequences were not intended and adopt a construction which will promote the purpose for which the legislation was passed.”

We conclude that the Legislature could not have contemplated the consequences attendant upon a literal interpretation of Article 46.02(2)(b). In determining what the Legislature intended, we are guided by the Code Construction Act, V.A.T.S., Article 5429b-2, Section 3.03(4), which provides for the consideration of the common law in ascertaining legislative intent. See also Calvert v. Fort Worth National Bank, 163 Tex. 504, 356 S.W.2d 918 (1961). The common law of this state concerning manifestations of mental incompetency at trial leads us to conclude that the Legislature intended to preserve bona fide doubt in the mind of the trial judge as the standard of proof to be met before a separate, mid-trial determination of the accused’s competency will be required. Article 46.02, Section 4(a), V.A.C.C.P., provides:

“If the court determines that there is evidence to support a finding of incompetency to stand trial, a jury shall be impaneled to determine the defendant’s competency to stand trial. This determination shall be made by a jury that has not been selected to determine the guilt or innocence of the defendant.”

The issue remaining is whether sufficient evidence existed to create in the mind of the court reasonable grounds to doubt the competency of appellant to stand trial. The test for competency is whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Paul v. State, 544 S.W.2d 668 (Tex.Cr.App.1976); Bonner v. State, supra.

Prior to trial, appellant underwent psychiatric and psychological evaluation on four separate occasions. Three of these examinations were ordered by the district court pursuant to the requests of appellant’s appointed counsel. Contrary to assertions in appellant’s brief, however, the fact that psychiatric examinations are ordered by a court does not constitute a determination that an issue as to the defendant’s competency exists. Garza v. State, 522 S.W.2d 693 (Tex.Cr.App.1975).

The reports of two examining psychiatrists reflect that, although uncooperative at times, appellant was a well-oriented individual who suffered from no physical or emotional distress and was able to express himself in a logical and coherent fashion. While one physician noted some “questionable delusional content with no factual basis,” this variance was diagnosed as temporary and was not stated to be a form of psychosis. Both doctors found that he understood the charges against him and was capable of cooperating with his attorney in the preparation of his defense. An inconclusive examination by a clinical psychologist revealed that, with the exception of appellant’s uncooperative attitude, no unusual behaviors or peculiarities were manifested. He was described as “certainly articulate” and able to express himself clearly and to the point. The report of a fourth examining physician concluded that appellant did not suffer from any mental illness and was able to understand the charges against him and deal adequately with his attorney. His “rather paranoid” approach to life was noted; it was stated, however, that these paranoid tendencies did not constitute a mental illness. During the course of this final examination approximately three weeks prior to trial, appellant insisted on having a jury trial in order to establish his mental competency.

Prior to trial, appellant refused to submit an application for probation. His dialogue with the trial judge reflects that he clearly understood the ramifications of this action but that as a matter of personal preference he did not under any circumstances desire or ask for probation. There are instances when a defendant or his counsel might think that he will be acquitted, but if he asks for probation, he will be convicted and placed on probation. This has been used as a matter of strategy.

At trial, James Johnson testified that his brother had twice been treated in mental hospitals for what Johnson described as “nervous breakdowns.” This testimony, which was descriptive only of appellant’s past mental condition, did not indicate that he was mentally incompetent at the time of trial. This Court has held that the fact of previous institutionalization does not require a finding of present incompetence. Almand v. State, 536 S.W.2d 377 (Tex.Cr.App.1976); Bledsoe v. State, 519 S.W.2d 646 (Tex.Cr.App.1975). See also, Ainsworth v. State, 493 S.W.2d 517 (Tex.Cr.App.1973).

Johnson further testified that appellant’s condition was “out of control”, but failed to describe any behavior on the part of his brother which indicated an abnormal mental state. Such testimony, concerning appellant’s behavior more than nine months prior to trial, was insufficient to create a bona fide doubt as to his present mental condition, particularly when contrasted with recent psychiatric evaluations attesting to his mental competency.

Appellant’s testimony in his own behalf was articulate and reflected his understanding of the charges against him. Such clear and lucid testimony on the part of a defendant has often been viewed as important in determining that he is competent to stand trial. Zapata v. State, 493 S.W.2d 801 (Tex.Cr.App.1973), cert. denied 414 U.S. 1128, 94 S.Ct. 865, 38 L.Ed.2d 752; Quintanilla v. State, supra; Ballard v. State, supra; Perryman v. State, supra.

The record reveals that appellant is an opinionated individual greatly concerned with political and social change. While testifying he was permitted to expound at some length on these concerns, including his belief that the water supply of Beaumont was being intentionally polluted and that he himself had been under the surveillance of law enforcement officials because of his efforts to establish a small newspaper. Appellant’s beliefs, however mistaken or unconventional, did not reflect mental incompetence. On the contrary, he presented his views with clarity and fluency. No showing was made that his social or political convictions impeded either his ability to understand the charges against him or to consult with his attorney. The record shows that appellant bore some hostility toward his attorney; such hostility is not, however, evidence of mental incompetency. Ballard v. State, supra.

There was more testimony to warrant a hearing on competency in Paul v. State, 544 S.W.2d 668 (Tex.Cr.App.1976) than there is in this case, but this Court a year ago held that no hearing was required.

Having reviewed the record we find that the evidence was insufficient to create a bona fide doubt as to appellant’s mental competency to stand trial. The State’s motion for rehearing is granted and the judgment is now affirmed.

ODOM, Judge,

dissenting.

The majority on rehearing have misread Article 46.02, V.A.C.C.P., and confused two separate and distinct provisions of that article.

Section 2(b) addresses raising the issue of incompetency to stand trial and provides:

“If during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.”

Section 4(a), on the other hand, addresses the incompetency issue itself and provides in part:

“If the court determines that there is evidence to support a finding of incompetency to stand trial, a jury shall be impaneled to determine the defendant’s competency to stand trial.”

Obviously, less is required for a Sec. 2(b) inquiry than for a Sec. 4(a) hearing. In the case at bar the trial judge should have conducted an inquiry. On original submission this Court unanimously held that Sec. 2(b) was triggered by the evidence presented. The majority grossly misstate the issue in this case when it states, “[T]he Legislature intended to preserve bona fide doubt in the mind of the trial judge as the standard of proof to be met before a separate mid- trial determination of the accused’s competency will be required.” (Emphasis added.) This is no slight misstatement; Sec. 4(a) is quoted in the next statement by the majority. But a Section 4(a) determination of appellant’s competency is not the issue! The Section 2(b) inquiry of whether to determine appellant’s competency is the issue before this Court and the issue upon which the case was reversed on original submission. The majority’s confusion is manifest.

The majority also express unfounded fears of frivolous claims of incompetency. They claim the Legislature did not intend Section 2(b) inquiries “in response to baseless claims of incompetency.” The whole purpose of a Section 2(b) inquiry is to determine whether the claims are baseless. If only well-founded claims trigger Sec. 2(b), then a Sec. 4(a) hearing will always follow, and the Sec. 2(b) inquiry would be a wasteful formality. The majority again reveal their confusion of Sec. 2(b) with Sec. 4(a), and the result is a wholly unconvincing effort at statutory construction.

I vigorously dissent.

ROBERTS and PHILLIPS, JJ., join this opinion.

      . Art. 46.02, Sec. 4(a), V.A.C.C.P. provides in part:
      “If the court determines that there is evidence to support a finding of incompetency to stand trial, a jury shall be impaneled to determine the defendant’s competency to stand trial.”

      . See, Art. 46.02, Sec. 2(a), V.A.C.C.P.

      . During appellant’s diatribe about the “drugging” of the water system, apparently based upon a belief that the water supply in that city was being intentionally polluted, the appellant exhibited a hand-drawn sketch of what he perceived to represent the water table area underlying the city of Beaumont. This document was completely irrelevant and immaterial to any issue in the case, but same was admitted into evidence at appellant’s insistence.

      . It has been made known to this Court that the appellant has remained in the Jefferson County jail since the date of his arrest and that he has discharged this present sentence. See Article 42.03, Sections 2, 3 and 4, V.A.C.C.P. Since appellant has discharged the sentence in this case, we need not comment as to whether the case could be remanded for a nunc pro tunc hearing to determine petitioner’s competency in a retroactive fashion, at this time. See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, at page 909, 43 L.Ed.2d 103; Bruce v. Estelle, 536 F.2d 1051 (5th Cir. 1976).


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Ex parte Gerald Charles GRAY.
    No. 56966.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 22, 1978.
    James E. Davis, Texarkana, Ark., for appellant.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ONION, Presiding Judge.

Appellant gave written notice of appeal on November 3, 1977, from an order of the trial court dated November 2, 1977, in which appellant’s unsworn motion for bail pending appeal of his felony conviction was denied.

The record before us is meager at best. On June 29, 1976, appellant received a 10-year probated sentence for possession of heroin. That probation was later revoked on October 25, 1977. On November 3, 1977, appellant gave notice of appeal. This notice was premature, as it does not appear that appellant was formally sentenced until November 16, 1977. Art. 44.-08(c) Vernon’s Ann.C.C.P., provides that notice of appeal shall be given or filed within 10 days after sentence is pronounced. It does not appear from the record before us, however, that appellant again gave notice of appeal within 10-day period after the pronouncement of sentence. Consequently, the giving of notice of appeal before the pronouncement of formal sentence upon the order revoking probation did not perfect an appeal in that case. Dullnig v. State, 504 S.W.2d 495 (Tex.Cr.App.1974).

But, even if appellant had timely perfected an appeal from the probation revocation proceeding wherein he stands convicted of the unlawful possession of heroin, we do not believe that the instant proceeding is properly before us. The proper method for challenging the denial or excessiveness of bail, whether prior to trial or after conviction, is by habeas corpus. Although every provision relating to habeas corpus is to be most favorably construed in order to give effect to the remedy and to protect the rights of the person seeking relief under it, Art. 11.04, Vernon’s Ann.C.C.P., the unverified motion which was filed in the instant case, even if construed in that light, does not substantially state or contain the requisites of a petition for writ of habeas corpus as set forth in Art. 11.14, Vernon’s Ann.C. C.P. Moreover, it does not appear that the trial judge treated the motion as a petition in habeas corpus, because the trial judge did not issue a writ of habeas corpus in response to the motion filed. See Ex parte Mayes, 538 S.W.2d 637 (Tex.Cr.App.1976). Consequently, we cannot treat the instant proceeding as an appeal in habeas corpus under Art. 44.34, Vernon’s Ann.C.C.P., because that statute applies when a “defendant appeals from the judgment rendered on the hearing of an application under habeas corpus, . . . ”

We conclude that no appeal lies from the order entered by the trial court in the instant case. Therefore, the purported appeal from the order entered must be dismissed. The dismissal of the appeal, however, will be without prejudice to appellant’s applying for appropriate habeas corpus relief in the trial court.

The appeal is dismissed.


author: ODOM, Judge.

text:
    James L. NORTON, Appellant, v. The STATE of Texas, Appellee.
    No. 54081.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 5, 1978.
    Rehearing En Banc Denied May 3, 1978.

      James L. Norton, pro se.
    Carol S. Vance, Dist. Atty., James T. Jordan and John S. Holleman, Asst. Dist. At-tys., Houston, for the State.

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

ODOM, Judge.

This is an appeal from a conviction for making a false report to a peace officer, proscribed by V.T.C.A., Penal Code Sec. 37.-08(a). Trial was before a jury which found appellant guilty and assessed the maximum penalty provided by statute.

The facts adduced at trial established that on April 7, 1975, appellant approached J. L. Carter and asked him to procure enough marihuana to constitute a felony offense so that appellant could plant it on his ex-wife, Mrs. Mary Norton, or have it planted on her. On April 11,1975, at about 12:15 p.m., Carter, along with Wilbur Austin, drove to Mrs. Norton’s house and Carter informed Mrs. Norton that her ex-husband was trying to make trouble for her. Evidently Carter was of the opinion that some narcotics had been placed in Mrs. Norton’s ear and she allowed him to search the vehicle for it. Under the passenger side of the front seat four baggies of marihuana and a bottle of pills were found. Carter asked Mrs. Norton if he could have the drugs, to which she replied that he could, except for one baggie of marihuana which she wanted to give to the police.

On the same day, Officer J. M. Smith testified that he was assigned as desk officer in the narcotics division and that at about 9:30 a.m. he had received a phone call from a man who refused to identify himself who stated that a lady living at 13807 Tay-lorcrest (the residence of Mrs. Norton) was selling narcotics out of her car. Two undercover narcotic agents were sent to investigate the report and were conducting their surveillance when Carter and Austin arrived at Mrs. Norton’s house at noon on April 11. After observing what appeared to them to be a narcotics sale, they arrested Carter and Austin a short distance from Mrs. Norton’s residence. The marihuana and pills were seized. The narcotic agents then went to Mrs. Norton’s residence and questioned her regarding the incident. Mrs. Norton testified that after Carter and Austin left she called the police department and the district attorney’s office concerning the matter. She then drove down to police headquarters to make out a report.

The evidence reflects that the informer had made several phone calls to the police on April the eleventh and the last call was made at approximately 3:00 p.m. Mrs. Norton was at the police station when this last phone call was made and listened in on the conversation between the informer and Officer Smith. Mrs. Norton testified that she recognized the voice of the informer as being that of the appellant. She was then asked by the police officers to speak to him on the phone. She related that she asked the appellant why he was doing this and “hadn’t he already done enough.” Officer Smith testified that the individual who called this last time at 3:00 p.m. was the same individual he had previously talked to. Lieutenant Rivera of the Houston Police Department testified that he talked to the informer and said: “Mr. Norton, did your wife get the license number of the vehicle,” to which the informer stated, “No, she didn’t.” He further asked the informer whether he had taken down the license plate number, to which the informer replied that he did not because he was not at home.

In his first two grounds of error appellant complains of the trial court’s action in overruling his oral motion for continuance. We note that the court had granted appellant’s two prior written motions for continuance. The third motion for continuance, of which appellant complains, was not in writing, was not sworn to by appellant, nor were the requirements of Article 29.07, V.A.C.C.P., met. Therefore, nothing is presented for review. Lopez v. State, Tex.Cr.App., 535 S.W.2d 643; Gonzales v. State, Tex.Cr.App., 470 S.W.2d 700; Stubbs v. State, Tex.Cr.App., 457 S.W.2d 563. See also Allen v. State, Tex.Cr.App., 505 S.W.2d 923. Moreover, the record affirmatively reflects that the appellant did not apply for process of witness until two days before trial.

In Peoples v. State, Tex.Cr.App., 477 S.W.2d 889, we held:

“If a defendant does not apply for process of a witness until a day or two before his trial, he has failed to exercise the due diligence which is necessary to support a motion for continuance, particularly where several months have elapsed between the date of the indictment and the date of the trial.”

The first two grounds of error are overruled.

In his next three grounds of error the appellant complains that the trial court erred by admitting over timely objection hearsay evidence pertaining to his alleged commission of the crime and that, because of the nature of this evidence, the evidence was insufficient to show his involvement in the crime. We overrule these contentions. The evidence clearly established that Officer Smith recognized the voice of the informer when Mrs. Norton listened in on the last telephone conversation as being that of the person who had called previously. Mrs. Norton testified that she recognized the voice as that of the appellant. Lieutenant Rivera testified that he called the appellant by his name and appellant responded. The foregoing evidence was sufficient to establish the requisite identity of the informer as being the appellant.

In Locke v. State, Tex.Cr.App., 453 S.W.2d 484, we quoted from Collins v. State, 77 Tex.Cr.R. 156, 178 S.W. 345, 355, wherein we held:

“Voice is a competent means of identification if the witness had any previous acquaintance with the person identified. It is sufficient that the witness has heard such person’s voice but once previous to the time in question.” See also Schwartz v. State, 158 Tex.Cr.R. 171, 246 S.W.2d 174.

As to the argument that the evidence of the conversations was inadmissible as being hearsay, our response is that the conversations did not constitute hearsay at all. Whether the law of evidence denominates such statements as being operative facts or verbal acts, it is clear that “[I]f the fact in controversy is whether a communication was made and not its truth or falsity, the writing, words or other communications is original evidence and not hearsay.” Burchfield v. State, Tex.Cr.App., 475 S.W.2d 275, 277, and cases cited therein.

In Herndon v. State, Tex.Cr.App., 543 S.W.2d 109, 119, we quoted with approval a statement from Wigmore’s treatise on evidence:

“Where the utterance of specific words is itself a part of the details of the issue under the substantive law and pleadings, their utterance may be proved without violation of the hearsay rule because they are not offered to evidence the truth of the matter that may be asserted therein.”

See also Christ v. State, Tex.Cr.App., 480 S.W.2d 394; Wharton’s Criminal Evidence, 13th Edition, Sec. 274, 1972; McCormick and Ray, Texas Law of Evidence, Sec. 795 (1956).

The evidence is sufficient and the grounds of error are overruled.

Finally, the appellant argues that the trial court erred in denying defense counsel’s request to make an opening statement to the jury concerning the nature of the defenses upon which appellant relied as provided by Art. 36.01, subd. 5, V.A.C.C.P.

The record reflects that after the State had rested at the guilt-innocence stage of the trial defense counsel sought to make a statement to the jury and the trial court ruled:

“THE COURT: The Court here and now will permit you to make an opening statement outlining to the jury what you expect the testimony from your witnesses to show. I will now give you an opportunity to check and see if you have any witness to put on and if you do, you may make your opening statement, but if you do not, the Court will not permit you to make an opening statement telling the jury what you expect a witness to testify to when you don’t expect to put any witness on.
“Now, you check to see what witnesses you have here to put testimony on and the Court will permit it.
“MR. WILLIAMS: Okay. We object to the Court’s ruling.”

Shortly thereafter, the trial court stated the following:

“THE COURT: All right. Let the record show that now in the presence of the defendant and the attorneys in the case, that the Court is going to change a previous ruling, the previous ruling being that I denied defense counsel the right to make an opening statement to the jury.
“I am here and now going to permit the defense counsel to make an opening statement to the jury regarding any explanations of any testimony that he expects to give through his witnesses.
“I would further advise defense counsel that if he does make such an opening statement, the Court would expect him to be acting in good faith and in the event he did not have any witnesses to testify following his opening statement, the Court would presume that he was not acting in good faith and would take appropriate action.
“So, I am not going to deny you the right to make an opening statement you care to make under circumstances you feel free to do so.”

Defense counsel objected to this ruling.

It is the appellant’s position that Art. 36.01, subd. 5, supra, would require the trial court to allow defense counsel the right to make an opening statement to the jury concerning “the nature of the defenses relied upon and the facts expected to be proved in their support” even if no defensive evidence or witnesses were presented. While the right of a defendant to have his counsel make an opening statement is “a valuable right, and the denial of a timely request by the defendant to make an opening statement constitutes reversible error,” Caraway v. State, Tex.Cr.App., 417 S.W.2d 159, and cases cited therein, “the character and extent of such statement are subject to the control of the trial court . . . .” McBride v. State, 110 Tex.Cr.R. 308, 7 S.W.2d 1091.

In Dugan v. State, 82 Tex.Cr.R. 422, 199 S.W. 616, 617, it was stated, “[T]he proper function of the opening for the defendant is to enable him to inform the court and jury what he expects to prove.”

In the present case since the appellant called no witnesses, did not testify himself nor otherwise offer any evidence in his defense, the trial court did not err in its ruling. Appellant’s counsel was not prevented from making an opening statement; the only constraint placed upon him was that he make the statement in good faith and we perceive no error in the court’s ruling that the opening statement would not be made in good faith if the appellant chose to call no witnesses or present defensive evidence. The case of Reagan v. State, Tex.Cr.App., 423 S.W.2d 335, is dispositive of this issue. Appellant’s contention that Art. 36.01, subd. 5, supra, allows defense counsel to make an opening statement to the effect that the defendant is relying upon the defense of not guilty, and that the defendant is content in relying on the facts presented by the State, is without merit. The ground of error is overruled.

The judgment is affirmed.


text:
    George F. JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 54176.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 5, 1978.
    Rehearing En Banc Denied May 3, 1978.

      Robert H. Spicer, San Antonio, for appellant.
    Ted Butler, Dist. Atty., John A. Hrncir, Sharon S. Macrae and Roy R. Barrera, Jr., Asst. Dist. Attys., San Antonio, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of attempted burglary. See V.T.C.A., Penal Code, Secs. 15.01 and 30.02. Punishment was assessed by the jury at ten (10) years’ imprisonment.

The appeal was originally abated, but has now been reinstated.

Appellant Jones claims that the trial court erred in failing to sustain defense counsel’s objection to improper argument by the prosecution during the punishment phase of the trial. The district attorney told the jury the following:

“MR. HRNCIR (Prosecutor): . . . And, as Judge Barlow tells you in this charge, under the instructions herein given it will not be proper for you in determining the penalty to be assessed to affix the same by lot, chance, any system of averages or any other method than by full, fair and free exercise of the opinion of the individual jurors under the evidence as admitted before you. And you should, in deliberating as to punishment, discuss how long the defendants would be required to serve in order to satisfy the sentence imposed.
“But, I will tell you this, as you heard, I have been up here now for just about four years. And, if you don’t assess a punishment for both of these characters, as bored as they might look right now, if you don’t assess a punishment for both of these characters for a term of years in the Texas Department of Corrections between seven and ten years it won’t mean anything.
“Thank you very much.
“MR. SPICER (Defense Counsel): I will object to the last remark by Counsel. He is trying to circumvent exactly the ruling that the Court has given to them in the court’s charge where the Court is telling the jury that they are not to discuss how long the defendants would be required to serve in order to satisfy the sentence imposed. He is trying to get around that and he has done it. I object to it and ask the Court to instruct the jury to disregard the last remark of counsel.
“THE COURT: What was the last remark? Read it back again.
“THE REPORTER: (reading) ‘If you don’t assess a punishment for both of these characters for a term of years in the Texas Department of Corrections between seven and ten years it won’t mean anything.’
“THE COURT: Objection overruled.” (Emphasis added.)

In Jones v. State, 522 S.W.2d 225 (Tex.Cr.App.1975), it was written:

“It is a matter of common knowledge that inmates are released from the Texas Department of Corrections, but the jury, in a felony case, in determining the punishment to be assessed, is not authorized to resort to or apply the parole law. Argument urging them to do so is highly improper. Graham v. State, 422 S.W.2d 922 (Tex.Cr.App.1968); Hughes v. State, 493 S.W.2d 106 (Tex.Cr.App.1973); Hartman v. State, 496 S.W.2d 582 (Tex.Cr.App.1973).”

In Clanton v. State, 528 S.W.2d 250 (Tex.Cr.App.1975), the prosecutor made reference to the court’s charge that the jury was not to discuss how long the defendant would be required to serve any sentence imposed, and then repeatedly attempted to get around the court’s instructions by arguing, over objection and despite the court’s efforts, that while it could not be discussed each juror could consider it, that it was a concern of theirs despite the instruction, etc.

It was held that the argument was not an argument to assess a proper punishment, “but was strictly an appeal to the jury to disregard its responsibility under the law to determine the appropriate punishment for the offense, and to consider ‘how long the defendant will be required to serve in any sentence’ the jury might decide to impose.” The case was reversed.

In Jones v. State, supra, and Hernandez v. State, 366 S.W.2d 575 (Tex.Cr.App.1963), jury arguments by the prosecutor were also interpreted as urging the jury to abdicate its responsibility and set a high penalty and allow the Department of Corrections or “they” to determine the actual period of confinement. Reversal followed in those cases. Likewise in Marshburn v. State, 522 S.W.2d 900 (Tex.Cr.App.1975), the prosecutor’s argument first referred to the court’s charge as telling the jurors that they had no control on the exact time to be served, then told the jurors to look at records of the prior convictions offered and note that “You say five years and two years later they are out committing another offense. Look at the records.” Prior to this objected to argument, the prosecutor had argued that if the jurors were going “to do any good” they were going to have to set a high penalty even up to 2,000 years to attract the attention of the “somebody, somebody who decides how long they are actually going to serve . . . .” The case was reversed.

In the instant case the prosecutor argued that the jurors “should, in deliberating as to punishment, discuss how long the defendants would be required to serve in order to satisfy the sentence imposed.” The prosecutor then added that based on his experience if the jurors didn’t assess seven to ten years “it won’t mean anything.”

The jury assessed the maximum punishment of ten years’ confinement and denied the motion for probation.

The argument was an attempt to get around the trial court’s jury instruction not to discuss the matter of parole, and improperly urged the jury to consider it in assessing punishment. The prosecutor was on notice through the court’s charge as to the impropriety of his argument. No useful or legitimate purpose was served by the argument pursued. See Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974). The argument clearly was not a request for appropriate punishment based on the evidence.

Finding that the argument was not invited, we conclude the error was reversible error.

The State argues that the court reporter made a clerical error and omitted the word “not” from the prosecutor’s argument and the argument should have read, “. and you should (not), in deliberating as to punishment, discuss how long the defendants would be required to serve in order to satisfy the sentence imposed.”

We are bound by the record before us, to which the State never filed an objection before it was approved by the trial court. See Article 40.09, V.A.C.C.P.; Brown v. State, 523 S.W.2d 238 (Tex.Cr.App.1975); Washington v. State, 500 S.W.2d 485 (Tex.Cr.App.1973). And we have not found any supplemental transcript correcting the statement of facts and showing the word “not” was omitted by error.

The State argues that if the prosecutor said “should” instead of “should not” it was inadvertent. Of course, there is no way to determine that with any accuracy, but if it was a matter of inadvertence, the harm was nevertheless done.

The State lastly contends the objection was only to the “last remark” and was thus limited to the “it won’t mean anything” argument rather than the “should discuss” argument. Both arguments immediately followed each other in separate sentences, and in examining the entire context of the objection, we cannot construe the objection to be so limited.

The judgment is reversed and the cause remanded.

      . See Graham v. State, 422 S.W.2d 922 (Tex.Cr.App.1968); Hughes v. State, 493 S.W.2d 166 (Tex.Cr.App.1973).

      . Appellant was jointly tried with James H. Woemer, Jr., whose conviction was affirmed in a per curiam opinion in Cause # 54,175, Tex.Cr.App., 563 S.W.2d 280, on this same date. Woemer was represented by different counsel and no objection was made by Woemer to the complained of argument nor did he raise the same as a ground of error, nor argued that he was entitled to the benefit of the objection made by Jones’ counsel.


author: W. C. DAVIS, Judge.

text:
    Johnny Ray SEATON, Appellant, v. The STATE of Texas, Appellee.
    No. 54195.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 5, 1978.
    Rehearing En Banc Denied May 3, 1978.

      James R. Thompson, Copperas Cove, for appellant.
    Arthur C. Eads, Dist. Atty., and James T. Russell, Asst. Dist. Atty., Belton, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for aggravated rape of a child. Appellant was tried before a jury, which found him guilty of the offense and assessed his punishment, enhanced by one prior conviction, at ninety-nine years in the Texas Department of Corrections.

In his first ground of error, appellant contends that the evidence is insufficient to show that the rape was aggravated. V.T. C.A. Penal Code, Sec. 21.09, provides that:

“(a) A person commits an offense if he has sexual intercourse with a female not his wife and she is younger than 17 years.”

V.T.C.A. Penal Code, Sec. 21.03, provides that:

“(a) A person commits an offense if he commits . . . rape of a child as defined in Section 21.09 of this code and he:
* * * * * *
“(2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone. . . . ”

Appellant was indicted' under Sec. 21.-03(a)(2) of this statute. He now contends that the evidence is insufficient to show that he compelled the submission of the prosecutrix by threats of death, serious bodily injury or kidnapping.

The prosecutrix, appellant’s step-daughter, was nine years old at the time of trial. She testified that on the date of the offense appellant picked her up at their home and took her to Frank’s Marina near Belton, where appellant worked a night shift. On the way to the marina, appellant stopped the car beside the lake and had sexual intercourse with her. After the prosecutrix testified that appellant put his penis between her legs and inserted it up inside her body, the prosecutor asked:

“Q. Okay. Had hé hit you?
“A. [Prosecutrix] Yes, sir.
“Q. Where did he hit you, Keri?
“A. In my face.
“Q. How many times; do you know?
“A. No, sir.
“Q. Just one time, or a lot of times, or how much?
“A. I think a lot of times.
“Q. Where, on your face, did he hit you, Keri?
“A. Around in the mouth.
“Q. All right. How about your eyes, did he hit you around your eyes?
“A. Yes sir.
“Q. Okay. Now, did he get on top of you?
“A. Yes, sir.
“Q. Okay. Was he hitting you all the time while this was going on?
“A. Yes, sir.”

The prosecutrix later testified to threats of harm made by appellant, but these were apparently made after appellant had completed the act. She testified that once during the commission of the offense she started fighting appellant and got out of the car, but that appellant pulled her back in the car by her hair. The prosecutrix later testified that appellant had threatened to kill her, but the record does not disclose whether this threat was made before or after appellant had intercourse with her.

Dr. Ralph Wallace, the treating physician, testified that when he saw the prose-cutrix almost two days after the offense she had bruises on her face and head, two black eyes and other bruises on her body. Photographic slides of the prosecutrix, introduced into evidence at trial, substantiate the accuracy of the doctor’s testimony.

Appellant testified in his own behalf and denied that he committed the offense.

Upon review by this Court, the evidence must be viewed in the light most favorable to the jury’s verdict. Rogers v. State, 550 S.W.2d 78 (Tex.Cr.App.1977); Clark v. State, 543 S.W.2d 125 (Tex.Cr.App.1976); Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974). The jury found that appellant had compelled the prosecutrix’s submission to the offense by threats of death or serious bodily harm, and we hold that the evidence is sufficient to support this verdict. The term “threats” is not limited to the use of verbal aggression but may include acts amounting to an offer to use future force. Threats may be communicated by actions, words or deeds. Church v. State, 552 S.W.2d 138 (Tex.Cr.App.1977); Rogers v. State, 550 S.W.2d 78 (Tex.Cr.App.1977); see also Williams v. State, 500 S.W.2d 163 (Tex.Cr.App.1973).

In the instant case, the prosecutrix was an eight-year-old child at the time of the offense. She testified that appellant had hit her at the time in which he began the act of intercourse and that he continued beating her during the act. His acts in beating her, as she testified, constitute sufficient evidence of a threat of serious bodily injury to this prosecutrix. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that the trial court erred in failing to grant his motion for a mistrial when the prosecutor called a key defense witness a “liar.” Janis Seaton, wife of appellant and mother of the prosecutrix, was called as a witness by the defense. Upon cross-examination, the prosecutor asked the witness about a prior written statement that she had made to him concerning her discovery that the prosecutrix had been raped. The prosecutor asked:

“Q. That is your statement, is it not? That’s your written statement?
“A. [Seaton] Mr. Odom, this is my statement that—
G? I’m asking you a question, Mrs. Sea-ton. Is that—
“The Court: Just answer the question.
or —that you gave me.
<¡ But it isn’t the truth, because of what you told me.
* * * * * *
o* Did you sign it in front of Mary Watson, a notary public for Bell County.
<l No, sir, I did not.
O’ Are you sure about that?
“A. I am certain, sir.
O’ Do you see my signature on that statement, Mrs. Seaton, as a witness?
!> Yes, sir, I do, Mr. Odom.
<© Are you saying I was standing right there when you swore to it in front of a notary?
“A. I am saying that you were not standing there, because you told me that if I went right with the State that I could have my daughter and that I would not have all the trouble that I’m having.
o* Mrs. Seaton, that is a lie and you know it.
“A. No, sir, it is not.
“The Court: Now, just a moment.
“[Defense Counsel] Your honor—
“The Court: Just a moment.
“[Defense Counsel] Your Honor—
“The Court: Disregard the statement made by the prosecutor.
“[Defense Counsel] Your Honor, I have a motion—
“[Prosecutor] Your Honor, I apologize to the Court—
“[Defense Counsel] —to make—
“[Prosecutor] —and to Mr. Hollé. But she is impugning my professional integrity and—
“[Defense Counsel] Your Honor—
“The Court: Mr. Odom, have a seat. Make your motion.”

At this time the jury was removed from the courtroom and defense counsel moved for a mistrial, which the court denied. When the jury returned, the court again instructed them:

“Now ladies and gentlemen, let me remind you, as I instructed you earlier in this proceeding, that it is only from the witness stand and from the witnesses who are testifying under oath, that you will hear evidence in regard to this trial, or the events which we are trying here in this proceeding. And you are not to consider, nor to take as evidence, any remarks made by the attorneys in this case, particularly with reference I call your attention to the remarks made immediately before the recess before lunch by the prosecuting attorney which you are not to consider. They are not evidence, they are unsworn to, and you are not to consider them as having any bearing on the credibility of the witness, nor the weight to be given to her testimony, and you are not to discuss or to mention in your deliberations any of the remarks so made during the proceeding . . .”

Appellant now contends that his defense was irreparably harmed by the prosecutor’s statement and that the court should have granted his motion for mistrial at the time it was made. We have concluded that the harmful effect of the prosecutor’s statement was cured by the trial court’s instruction for the jury to disregard it.

Contrary to appellant’s assertions, Seaton was not a material defense witness. Her testimony was corroborative of that of other defense witnesses. However, the context in which the prosecutor’s statement was made, including the witness’ equivocation, her resistance to cross-examination and her refusal to cooperate fully did not excuse the prosecutor’s remark. The trial court immediately halted the examination and instructed the jury to disregard the outburst. After the jury was returned to the courtroom, the court further instructed them to disregard the statement.

An instruction to disregard will generally cure error except in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds. Edmiston v. State, 520 S.W.2d 386 (Tex.Cr.App.1975); see also Torres v. State, 552 S.W.2d 821 (Tex.Cr.App.1977); Johnson v. State, 527 S.W.2d 525 (Tex.Cr.App.1975). Further, the mere making of an improper statement, as the asking of an improper question, is generally cured by an instruction to disregard. Rodriquez v. State, 552 S.W.2d 451 (Tex.Cr.App.1977); Graham v. State, 546 S.W.2d 605 (Tex.Cr.App.1977); Carey v. State, 537 S.W.2d 757 (Tex.Cr.App.1976); Ashley v. State, 527 S.W.2d 302 (Tex.Cr.App.1975).

In the instant case, the prosecutor’s statement was not so prejudicial as to require reversal and the trial court’s prompt instructions to disregard were sufficient to cure the error. Appellant’s second ground of error is overruled.

In his third ground of error, appellant contends that the trial court erred in failing to quash the indictment when it failed,to allege that the victim of the crime was a female. The record before this Court does not reflect that appellant filed a motion to quash on this ground; therefore, this ground of error is overruled.

In his fourth ground of error, appellant contends that the indictment is fundamentally defective because it failed to allege that the victim of the crime was a female.

V.T.C.A., Penal Code, Sec. 21.09 provides that:

“(a) A person commits an offense if he has sexual intercourse with a female not his wife and she is younger than 17 years. . . .”

The indictment under which appellant was prosecuted alleged in part that appellant,

“. . . did then and there intentionally and knowingly engage in sexual intercourse with Keri Ann W_, a child younger than 17 years and not the spouse of the said Johnny Ray Seaton and that the said Johnny Ray Seaton did compel Keri Ann W_to submit to such act of sexual intercourse by threatening the imminent infliction of death and serious bodily injury . . . ”

Since no motion to quash the indictment was filed in the trial court and, therefore, the sufficiency of the indictment is questioned for the first time on appeal, only jurisdictional defects will be considered. Hughes v. State, 561 S.W.2d 8 (Tex.Cr.App.1978); Terry v. State, 517 S.W.2d 554 (Tex.Cr.App.1975); American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). A jurisdictional defect in an indictment is a defect which renders the indictment insufficient in that it fails to allege the constituent elements of the offense. Terry v. State, supra. If the indictment alleges an offense was committed by the defendant, then it will be sufficient in law to support a verdict of guilty; only if the defect be of such a degree as to charge no offense against the law and thereby be void will an indictment be fundamentally defective and may therefore be raised for the first time on appeal. American Plant Food Corp. v. State, supra.

Therefore, this Court must ascertain whether this indictment, when read »as a whole, sufficiently charges the offense of rape of a child. Childs v. State, 547 S.W.2d 613 (Tex.Cr.App.1977); Clark v. State, 527 S.W.2d 292 (Tex.Cr.App.1975). We hold that this indictment does charge an offense against the law and, therefore, is not fundamentally defective.

When read as a whole, the indictment alleges that appellant, a male, had sexual intercourse with a person under the age of seventeen, not his spouse. “Sexual intercourse” is a term which has a specialized meaning in law. In Sec. 21.01, V.T.C.A. Penal Code, “sexual intercourse” is defined as “any penetration of the female sex organ by the male sex organ (emphasis added).” Thus, the allegation that appellant had sexual intercourse with a person is an allegation that he committed this act with a female. See Finley v. State, 527 S.W.2d 553 (Tex.Cr.App.1975). Therefore, the indictment, when read as a whole, sufficiently sets out this element of the offense. Cf. Clark v. State, 558 S.W.2d 887 (Tex.Cr.App.1977); Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1976). See also, Clark v. State, 527 S.W.2d 292 (Tex.Cr.App.1975).

In Ray v. State, 154 Tex.Cr.R. 347, 221 S.W.2d 249 (1949), this Court was confronted with the same issue. Therein, the indictment for rape failed to allege that the victim was a female. While we note that that indictment did allege that the victim was “not the wife” of the defendant, we based our holding that the indictment was not fundamentally defective on the use of the feminine proper name of the prosecu-trix. We stated, “[i]t is our conclusion that the name of victim, ‘Linda,’ is the name of a female and not a male person Sex may adequately appear by the use of the given name of the victim and the use of the feminine pronoun.” We also noted that the offense of rape can only be committed against a female. See also Battle v. State, 4 Tex.App. 595 (Tex.Cr.App.1878) and Carter v. State, 78 Tex.Cr.R. 240, 181 S.W. 473 (1915).

We need not discuss possible distinctions between the instant case and that of Ray v. State, supra, and cases cited therein. Instead, we base our decision in the instant case upon the essential allegation that the appellant had “sexual intercourse” with the prosecutrix, as defined in Sec. 21.01(3), V.T. C.A., Penal Code, which made the indictment, as a whole, sufficient to charge an offense, even absent an allegation that the prosecutrix was a “female.” Appellant’s fourth ground of error is overruled.

In pro se briefs, appellant raises various other grounds of error, including the contentions that his prior conviction alleged in the indictment is void and that he was not permitted to call three witnesses in his behalf at trial. We have carefully examined appellant’s briefs and the record before this Court and find all of his pro se contentions to be totally without merit.

The record also contains various pro se writs of habeas corpus which appellant has untimely filed. In this regard, we direct appellant’s attention to Article 11.07, Vernon’s Ann.C.C.P.

The judgment is affirmed.

      . In the body of the indictment, there is contained a reference to appellant by the use of the • masculine pronoun.