author: BROWN, Commissioner. ONION, Presiding Judge. DOUGLAS, Judge

text:
    Richard Lynn CREEKS, Appellant, v. The STATE of Texas, Appellee.
    No. 52056.
    Court of Criminal Appeals of Texas.
    June 23, 1976.
    Opinion on State’s Motion for Rehearing Nov. 3, 1976.

      Tom S. McCorkle, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell Tem-pleton and R. Gary Noble, Asst. Dist. At-tys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

On November 30, 1973, appellant was convicted of the offense of felony theft upon his plea of guilty before the court. Punishment was assessed at five years probated. One of the conditions of probation was that during the term of probation appellant would commit no offense against the laws of this or any other state or the United States. On June 23, 1975, a motion to revoke probation was filed by appellant’s probation officer alleging that appellant had committed the offense of theft on June 19, 1975. This appeal is from the order revoking probation.

At the hearing on the motion to revoke probation the prosecution called three witnesses. The first witness, H. E. Beavers, appellant’s employer, testified that he was the supervisor of several service stations, one of which was operated by appellant. Beavers’ testimony was, to say the least, most confusing. In fact, at one point the court broke into the testimony of Beavers and stated: “Just a minute, the Court is getting a little confused.” At one point Beavers testified that there was a shortage of $600.00. At another time he testified that the shortage was more than Sixty Dollars — it was over a Hundred Dollars. On cross-examination, Beavers testified as follows:

“Q. You knew there were shortages, didn’t you?
“A. Yes, sir.
“Q. And you all had had conversations, you and Mr. Creeks had had conversations about the shortages?
“A. He took care of the shortages, yes, sir. He paid them. They came out of his check. That was the understanding when he came on and was hired, that if there were shortages, that he paid them.
“Q. In other words, by way of example, if I were working for you as one of your Managers and on, say, June 18th of this year, I was short a Hundred Dollars for one reason or another, I would have to pay the Company back that Hundred Bucks, right?
“A. Yes.
“Q. Right?
“A. Uh-huh.
“Q. And you’re saying that he paid back his shortages?
“A. Yes, he had prior to that.
“Q. All right. Why is it on June the 19th — What’s the difference between that shortage of Sixty Dollars and all the other shortages?
“A. Well, sir, personally, it’s really not up to me. If there is a big shortage, I have got to call the man over me. I’ve got to tell him about it. This was what I would consider to be a big shortage, more than his check would be, so I called my boss and my boss talked to him on the phone, and they made an agreement, Richard agreed with him, as far as I know, to work the shortage out.” (Emphasis added.)

Beavers further testified that when he went to the station on June 19th appellant was not there. Appellant’s brother was operating the station and advised Beavers that appellant was ill and unable to come to work. Beavers had the brother call appellant at home and advise him to come to the station, which appellant did. Beavers had gone to the station on June 19th in response to a call from appellant’s brother that he had just been a victim of a robbery at the station in which over a hundred dollars was reported to have been taken.

The next witness, R. D. Lewis, a Dallas police officer, testified that he was assigned as a polygraph examiner on June 21st when Investigator Crumm of the Dallas Police Department brought appellant to him for an examination to see if appellant had anything to do with a theft at a service station. He had appellant sign the polygraph consent form which stated that appellant knew he was not under arrest and' voluntarily agreed to take a polygraph examination. Over appellant’s objection, Lewis was then permitted to testify that prior to the examination appellant was questioned and verbally admitted the theft of Sixty Dollars from the service station on the 19th of June. Lewis admitted that he did not give appellant any warning of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, nor was appellant’s statement reduced to writing. The only other witness for the prosecution was probation officer Reggie Storey, who testified that when he learned that appellant had been arrested and charged with theft and was subsequently released (apparently on bond) he filed a motion to revoke probation and caused a warrant to issue for appellant’s arrest. When appellant came to the probation office on June 24th, the witness notified the police to come pick up appellant and while waiting for the police he and appellant had a conversation. Over appellant’s objection, the witness was permitted to testify that appellant, who had not been warned of his rights, orally confessed that he had stolen the Sixty Dollars from the filling station.

V.A.C.C.P. Art. 38.22 provides that a confession by a defendant in custody must be in writing after he has been duly warned of his rights. Under said Article, an oral confession is admissible only when it (1) leads to the fruits of the crime, or (2) is res gestae of the offense, neither of which exception is here present.

The State relies upon the form signed by appellant in the polygraph office stating that he was not under arrest. The testimony, however, reflects that the investigation of the theft had focused upon the appellant at the time he was brought to the polygraph office by Officer Crumm and that he was taken in custody from the polygraph office to the jail, where he was booked for theft. One of the most significant factors to determine whether or not the accused was in custody was whether or not the focus of the investigation had centered upon the accused at the time he was interrogated. U. S. v. Phelps, 443 F.2d 246 (5th Cir. 1971). Under these circumstances, appellant’s objection to the oral confession made in the polygraph office should have been sustained.

As regards the oral confession made to the probation officer, the State relies upon Cunningham v. State, Tex.Cr.App., 488 S.W.2d 117, wherein this Court held admissible a confession made to a probation officer so long as the probationer was not under arrest or in custody at the time that the confession was made. It is undisputed that when appellant reported to his probation officer such officer had already filed a motion to revoke probation, had caused a warrant to issue for the arrest of appellant, and had notified the police to come to the probation office to make the arrest of appellant. Under these circumstances, Cunningham, supra, was not applicable and appellant’s objection to the oral confession given to his probation officer should have been sustained.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

The record before us was poorly developed at the revocation hearing as to the exact circumstances under which the incriminating statement was made to the probation officer by the appellant.

It is clear, however, that Storey, the probation officer, testified that on June 23, 1975, he learned the appellant had been arrested for theft and the officer took steps to see that a warrant issued for appellant’s arrest for probation violation on that basis. On the same date the appellant called and informed Storey of his arrest, a fact of which Storey was already aware. On Júne 24 the appellant “on his own” came to the probation office. While Storey testified he did not arrest the appellant and that his “chief” had said, “Do not stop anyone,” the record reflects the following on voir dire examination of Storey by appellant’s counsel:

“Q. You indicated for him to go with you into your office?
“A. Yes, sir. We knew Officers were coming.
“Q. Did you call the Officers?
“A. I believe Lynch called the Officers. We took him out of the central probation room and brought him over to my side and had him sit down. He wanted to call his Attorney. I let him call his Attorney. As a matter of fact, he was on the phone to you whenever the Officers came.” (Emphasis Supplied.)

It was then developed that while waiting for the police to “pick him up” Storey had “this conversation” with the appellant. Over objection that appellant was effectively in custody and under arrest and that any statement was inadmissible, Storey was permitted to relate that the appellant had told him he (the appellant) had stolen some money from the place of business where he worked. There was a showing that no warnings as to his rights were given to the appellant prior to his statement.

Custodial interrogation was defined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” And such custodial interrogation is not limited to police station house interrogation. Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968); Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).

In Ancira v. State, 516 S.W.2d 924 (Tex. Cr.App.1974), this court cited with approval United States v. Phelps, 443 F.2d 246 (5th Cir. 1971), where it was stated:

“ . . . [w]e have noted several significant factors which should be considered in determining whether or not a defendant is in custody. For example, probable cause to arrest, subjective intent of the police, focus of the investigation, and subjective belief of the defendant have all been deemed relevant.”

In light of the record before us it is clear that while the probation officer Sto-rey may not have formally arrested the appellant, the appellant was in fact detained while awaiting the arrival of the arresting officers and was deprived of his freedom of action in a significant way. The record reflects appellant’s understanding of his situation as he asked and was permitted to call his attorney to whom he was talking when the arresting officers arrived. Prior thereto, he had made the incriminating statement to Storey without any warnings being given.

It is true that Miranda does not bar volunteered statements, Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App.1967), but nothing in this record shows that it was volunteered rather than being elicited by Storey after the appellant was detained. If it is the State’s position that the statement was volunteered, then in light of the objection it was incumbent upon the State to so show.

It is true that in Cunningham v. State, 488 S.W.2d 117 (Tex.Cr.App.1972), this court held that an admission by a probationer to his probation officers, even as a result of questioning during a reporting session, was not an in-custody interrogation condemned by Miranda under the circumstances there presented. See also Kirven v. State, 492 S.W.2d 468 (Tex.Cr.App.1973). However, in footnote # 3 of Cunningham at p. 120 the court cautioned:

“It is not our intention to hold that Miranda can never be applicable to any contact, interview, interrogation, visit, etc. between a probationer and his probation officer regardless of the circumstances.” State v. Lekas, 201 Kan. 579, 442 P.2d 11 (1968).

It appears that the statement was admitted in violation of Miranda.

Even if it can be argued that Miranda cannot be so interpreted, we are still left with the provisions of Article 38.22, Vernon’s Ann.C.C.P., which prohibit the admissibility of oral statements while in custody unless such statements are found to be true “which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.” Sec. (l)(e). This statute would also have called for the exclusion of the statement. There being no showing that the statement was admissible as exception to Article 38.22, supra, or Miranda, the court erred in admitting the same.

Since it is clear from the opinion on original submission that the appellant’s statement to the polygraph operator was likewise inadmissible, the State’s motion for rehearing is denied.

DOUGLAS, Judge

(dissenting).

Today the majority creates a new precedent without discussing or overruling precedents which have been the rule ever since this Court was created. See the references to Branch’s Annotated Penal Code, infra. The new overly protective rule prevents the introduction of volunteered statements to a probation officer by a probationer when he is not under arrest.

The order revoking probation was reversed on the ground that appellant was under arrest when he made statements admitting his guilt to officers. The last statement made to the probation officer was made while he was not in custody. ,

Appellant went “on his own” to see his probation officer and voluntarily told him that he had committed theft at a service station where he was employed. When one makes volunteered statements, failure to give the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, does not render the statements inadmissible. Bailey v. State, 532 S.W.2d 316 (Tex.Cr.App.1976); Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975).

The evidence that the trial judge heard will be set out to see if an abuse of discretion has been shown. All of the evidence favorable to the finding of the trial judge should be considered. At the outset, it should be noted that the emphasized part of the testimony of Beavers that appellant had agreed “to work the shortage out” does not detract from the fact that appellant committed the theft. At least it shows that appellant acknowledged the shortage although it may not show that he caused it.

H. E. Beavers testified that he was employed by Geneco Corporation as a supervisor for several service stations in Dallas County. On June 19, 1975, it was discovered that money was missing from the station that appellant had operated for some two weeks. No “draw slip” for any amount had been made by appellant.

R. D. Lewis, a Dallas police officer assigned to the “I. D. Section of the Polygraph Examiner”, testified that on June 21, “Investigator Crum of the Crimes Against Persons Bureau brought him (appellant) to me to give him an examination to see if he had anything to do with a theft at a service station.” He then had an interview with appellant concerning the theft from Beavers’ station. Lewis testified that he explained to appellant that he was not under arrest, and that appellant willingly and understandably signed a consent form reading:

“I understand that I am not under arrest at this time and that this examination is completely and wholly voluntary. I have not been threatened or promised anything in order to get me to consent to the taking of this examination. No violence has been used toward me in order to force me to consent to this examination.
(Signed) Richard Creeks”

Lewis testified next, over objection, that he and appellant then discussed the theft here involved, and that “Richard Creeks admitted to me verbally that he had taken sixty dollars of the hundred and thirteen dollar shortage on the 19th of June.”

Reggie Storey, the probation officer, testified that on June 23rd he learned that appellant had been arrested for theft and had been released from custody and he had a warrant issued for his arrest for probation violation. On the 24th of June, appellant came to Storey’s office “on his own.” Storey did not arrest him, having been advised by his chief, “Do not stop him.” However, Storey had notified officers and knew they were on the way to arrest appellant on the warrant Storey had requested. Storey testified that before appellant was arrested he admitted that he had “stolen some money from the place of business where he worked.” Storey did not recall the date of the theft given by appellant.

In Taylor v. State, 420 S.W.2d 601 (Tex. Cr.App.1967), the conviction was for murder. The shooting occurred at 2:50 p.m. and shortly thereafter the sheriff arrived at the scene. Meanwhile, appellant had voluntarily arrived at the sheriff’s courthouse office but no one was there. Taylor heard over a two-way radio at the office that the sheriff was on the way to Taylor’s house. Taylor could not operate the radio and he went to another office in the courthouse and asked a woman to call the sheriff and tell him that he (Taylor) was not running. Taylor then went back to the sheriff’s office and waited. When the sheriff arrived between 3:15 and 3:30 p.m. Taylor stood up and said: “Well, I told them I was going to do it.” The sheriff then pointed to a 30 — 30 rifle which was later shown to be the murder weapon and Taylor said it belonged to him but warned the sheriff to be careful because it was loaded.

The sheriff testified that he had not arrested Taylor prior to the complained of statements. In the Taylor case this Court noted from Miranda v. Arizona, supra, the following:

“ ‘There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.’ ”

In Taylor’s case, he knew that the sheriff was looking for him for the purpose of arresting him. In the present case appellant did not know that the probation officer planned to arrest him. He was at liberty when the statements were made. It is true that the probation officer would not have allowed appellant to leave. The same was true in Taylor’s case because he knew the sheriff was looking for him because of the murders he had committed. This Court held Taylor’s statements to be admissible because they were volunteered. The statements in the present case were volunteered. From the Taylor case we see that volunteered statements may be received in evidence even though the sheriff was about to make an arrest and the person making the statement knew that his arrest was imminent. In the present case appellant did not know that he was about to be arrested and because of this his statement could have been more freely given than that in the Taylor case.

In Cunningham v. State, 488 S.W.2d 117 (Tex.Cr.App.1972), this Court held that an admission by a probationer to the probation officer, even as a result of questioning during a reporting session, was not an in-custody confession condemned in Miranda v. Arizona, supra. It was noted that this sort of questioning “ ‘. . . was hardly the sort of incommunicado, police-dominated atmosphere of custodial interrogation and overbearing of the subject’s will at which the Miranda rule was aimed.’ ” In the present case there was no police dominated atmosphere. His will was not overcome because a warrant for his arrest had been issued, because he did not know that such a warrant was outstanding and he had previously told the probation officer that he had been arrested for the theft.

The correct rule is found in 1 Branch’s Ann.P.C.2d, Section 85, confinement or custody:

“Whatever be the intentions of the officer, if he had not arrested defendant and defendant was not apprised of his intentions to do so at the time he made the statements, they are admissible. It is not the intention of the officer that governs. [Citations omitted].”

Another statement applicable to this case is found in the same section. It is:

“Although the officer would not have permitted defendant to depart, yet if defendant did not reasonably believe himself to be under arrest, proof of his unwarned confession is admissible. [Citations omitted].”

In Malazzo v. State, 165 Tex.Cr.R. 441, 308 S.W.2d 29 (1957), the county attorney was permitted to testify that the accused had made bond and he came to his office and made the statement that he was involved in the burglary; that he went into the house and helped move the television and load it in the car and carry it away. This Court held no error was shown because of the facts showing that he was not under arrest at that time.

Appellant next contends that the evidence is insufficient to support the order revoking probation.

Appellant’s identification as the probationer in the case was established by the testimony of the probation officer. The testimony given by Beavers of the theft of money from the service station together with probation officer Storey’s testimony of appellant’s oral confession and the admission of the shortage by appellant sufficiently support the findings and order of the trial court. It is not necessary to pass upon the question of the confession to the polygraph operator. No abuse of discretion has been shown.

The judgment should be affirmed.

GUPTON, J., joins in this dissent.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Calvin WOODKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 53036.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1976.

      Lynn S. Patton, Longview, for appellant.
    Sam Baxter, Dist. Atty., Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for capital murder. Punishment was set at death.

The record reflects that appellant robbed Jimmy Kuykendall at gunpoint of approximately $90.00 on the night of November 21, 1973, in Marshall. The robbery occurred after appellant and two companions, Douglas Pilot and Ruby Hicks, had forced Kuyk-endall into his vehicle. After the money was taken, the appellant shot and killed Kuykendall by shooting him once in the chest and once in the back. The deceased was removed from the car and dragged to a ditch by appellant. Pilot drove the deceased’s car until a short time thereafter when he failed to make a turn. Appellant and his companions abandoned the wrecked vehicle, walked back to town and divided the money taken from Kuykendall.

At the outset, appellant contends that the court erred in failing to instruct the jury that they might find appellant guilty of the offense of robbery by firearms “which under the facts of the case and under the law constituted a lesser and included offense.”

The indictment alleged that the offense occurred on or about November 21, 1973. Thus, the indictment in the instant case was bottomed on Art. 1257(b)(2), V.A.P.C., which provided that the punishment for murder with malice aforethought shall be death or imprisonment for life if:

“the person intentionally committed the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, forcible rape, or arson;. . . ."

It appears to be the position of appellant that since it was necessary for the jury to find he committed the robbery before they could find him guilty of capital murder under Art. 1257(b)(2), supra, he was entitled to a charge which would have given the jury the option of finding him guilty of robbery. We do not agree. In Graves v. State, Tex.Cr.App., 539 S.W.2d 890, this Court held that a conviction for involuntary manslaughter, where the victim was struck by a vehicle, was not barred, under doctrine of double jeopardy, by a prior conviction for driving while intoxicated arising out of the same transaction. See and cf. Day v. State, Tex.Cr.App., 532 S.W.2d 302.

To hold that robbery was a lesser included offense of capital murder under 1257, supra, simply because it was incumbent on the State to prove the element of robbery in establishing capital murder would be an impermissibly broad extension of the law governing lesser included offenses. See the concurring opinion of Judge Odom in Graves v. State, supra, relative to interpretation of Art. 37.09, V.A.C.C.P.

Appellant contends that the court erred in failing to exclude his alleged confession, “when same was not given in compliance with Article 38.22, Code of Criminal Procedure.”

Appellant was taken before the judge who ultimately tried this case after his arrest and it is undisputed that the judge advised appellant of his rights in accordance with the requirements of Art. 15.17, V.A.C.C.P. While appellant recognizes that it would require an extension of present law, it is urged that a district judge, recognizing the seriousness of the instant offense, should have appointed a lawyer at the time appellant was advised of his rights “. . .to immediately counsel with the Defendant regarding his rights and to make certain that these rights were fully understood by the Defendant.” No request was made for counsel. Appellant urges that the appointment of counsel by the court sua sponte would be in the spirit of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and in compliance with Sixth Amendment rights under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. We do not agree and reject appellant’s contention that the confession should not have been admitted for the reason advanced herein.

Appellant contends that the prosecutor committed reversible error by injecting his own beliefs and conclusion in arguing to the jury.

The first complaint voiced is directed to an argument where the prosecutor appears to be discussing the court’s charge with the jury. The record reflects that the following occurred:

“The first page primarily tells you that— what malice aforethought is, and remember, the defendant has been charged with murder with malice aforethought, this describes it. It has just one of the unique definitions, that of ‘presently bent on mischief’ which I certainly think applies in this case. But it tells you primarily—
“MR. PATTON [defense counsel]: Now, your Honor, we object to what Mr. Baxter says and what he thinks applies in this case, your Honor, that amounts to unsworn testimony on the part of this prosecutor, and we would request that the jury be instructed to disregard his comment in that regard, your Honor.
“MR. BAXTER [prosecutor]: Your Hon- or, I am certainly entitled to tell the Jury what my theory of the law and the facts are.
“THE COURT: Objection is overruled. You may have your exception.”

Appellant relies on Palmer v. State, 157 Tex.Cr.R. 96, 246 S.W.2d 893, for the proposition that counsel should confine themselves in argument to evidence contained in the trial and should not bring outside influence to bear upon the jury in order to obtain a conviction. In Baldwin v. State, Tex.Cr.App., 499 S.W.2d 7, cited by appellant, this Court admonished prosecutors that it was improper to argue, “I think that he’s guilty.”

The prosecutor’s argument that he thinks that the definition “presently bent on mischief” applies to this case does not fall within the prohibition of either Palmer v. State, supra, or Baldwin v. State, supra. It would appear to be nothing more than a deduction from the evidence. Assuming, arguendo, that the argument can be characterized as expressing an opinion of the prosecutor, we fail to perceive how such statement would be so prejudicial to appellant as to require reversal.

Appellant’s next complaint concerning the argument of the prosecutor is reflected by the following, which took place during the prosecutor’s argument:

“Then we put Ruby Hicks on the stand, I think you are probably going to hear about Ruby from Mr. Patton. He is going to call her everything in the book. I told you on the stand, when you were up there being questioned as a juror, that Ruby had been granted immunity, that Ruby is not going to be charged in this case, and that’s right. I tell it to you again. She is not. But if it were not for Ruby, this crime would have gone unsolved, because she—
“MR. PATTON: Your Honor, now we object to this, that is completely irrelevant, it amounts to unsworn testimony by the Prosecutor, it is not proper, and we request the jury be instructed to disregard it, your Honor.
“THE COURT: Ladies and Gentlemen, in this case, as in all cases, and the court has so instructed you, you will make your decision based solely on the sworn testimony which you have heard from the witness stand. Now Mr. Baxter has stated that what he says is not evidence, and I want to reiterate that what he says is not evidence. And what Mr. Patton says later on is not evidence. However, they do have the right to draw inferences from the evidence, but the ultimate inference is to be drawn by the Jury and that is you ladies and gentlemen. And with that instruction, I am going to allow Mr. Baxter to proceed. Mr. Baxter, proceed — and your objection is overruled.
“MR. PATTON: Your Honor, we would further object that there is no testimony to that effect, and again request that the jury be instructed to disregard it.
“THE COURT: The objection is overruled.”

Ruby Hicks, one of appellant’s two companions on the occasion of the robbery and shooting of the deceased, was granted immunity and testified for the State. She gave an eyewitness account of all the events which occurred on the occasion in question. Appellant cites Stein v. State, Tex.Cr.App., 492 S.W.2d 548, and Renn v. State, Tex.Cr.App., 495 S.W.2d 922, and calls our attention to this Court’s emphasis in those opinions of the critical importance of convicting an accused only upon the evidence presented, without attempting to inflame or prejudice the minds of the jury.

The witness having furnished the only direct evidence of the robbery and shooting, it would appear to be a reasonable deduction from the evidence that the State would not have had a case without her testimony. Further, we cannot conclude that the complained-of statement injected anything new or so harmful as to constitute reversible error.

The following occurred during the opening argument of the prosecutor at the punishment stage of the trial:

“I suspect he [deceased] is trying to get out that door. He has heard that gun click once, he knows it is time to bail out. Unfortunately, he didn’t make it.
“MR. PATTON: Your Honor, this is total speculation on the part of the District Attorney. There is no evidence to this, and it again amounts to unsworn testimony in matters not properly before this Jury. We ask that the Jury be instructed to disregard it.
“THE COURT: Objection is overruled, Counselor.
“MR. BAXTER: I trust this will not count against my time, your Honor. “THE COURT: I am going to give you a little extra time, Mr. Baxter.
“MR. PATTON: Well, your Honor, I object to that as being a comment or a criticism of making objections, your Hon- or.
“THE COURT: Let the record show the objection. It is overruled.”

The thrust of appellant’s complaint appears to be directed to the prosecutor’s comment, “I trust this will not count against my time, your Honor,” and the court’s response, “I am going to give you a little extra time, Mr. Baxter.”

Appellant urges that the foregoing constituted an effort of the prosecutor to strike at appellant over his counsel’s shoulder and argues that the court’s granting prosecutor’s request for additional time for argument further compounded the error. Appellant relies on Anderson v. State, Tex.Cr. App., 525 S.W.2d 20, and quotes from our opinion in Anderson, where it is stated:

“The prosecutor’s criticism of defense counsel and the request for more time to argue because defense counsel was allegedly making frivolous objections were not justified and were highly improper. Instead of agreeing with the prosecutor, the court should have admonished the prosecutor against making such unwarranted statements.”

A review of Anderson reflects that the criticism of defense counsel went far beyond asking for additional time because of time taken for defense counsel’s objections. This Court pointed to the fact that the prosecutor had argued that defense counsel would lie to the jury, that defense counsel was trying to pull the wool over the jury’s eyes, criticized counsel for making frivolous objections, implied that the rules were different for the prosecutor than the defendant and argued that counsel did not have guts enough to argue that the defendant was not guilty. See Boyde v. State, Tex.Cr. App., 513 S.W.2d 588; Lopez v. State, Tex. Cr.App., 500 S.W.2d 844; Bray v. State, Tex.Cr.App., 478 S.W.2d 89.

We do not find that the prosecutor’s request for additional time in the instant case and the court’s reply thereto constitute reversible error.

Appellant contends that the court erred in not granting his motion for mistrial after it was brought to the court’s attention that the first three witnesses had testified without the jury having been sworn as required by Art. 35.22, V.A.C.C.P.

After it was brought to the court’s attention by the clerk that the jury had not been sworn in accordance with Art. 35.22, supra, the appellant moved for a mistrial and the same was overruled by the court. After the oath was administered to the jury, the court carefully explained to the jury that the only reason it was allowing the State to recall the witnesses was the court’s failure to have the oath administered at an earlier time, “. . . and I want you to fully understand that the reason for this is not to re-emphasize the testimony. . . . ” The record reflects that immediately after the name of the first witness was recalled by the State, the appellant and his counsel entered into a stipulation that the testimony of the three witnesses, direct and cross-examination, might be considered by the jury without the necessity of recalling the witnesses and having them again testify.

In Patterson v. State, Tex.Cr.App., 416 S.W.2d 816, it was held not to be an abuse of discretion where the court allowed the State to re-open after it was discovered that the jury had not been sworn and the court carefully explained to the jury the necessity of recalling the witnesses and properly admonished them that the testimony was not being reheard for emphasis.

Appellant appears to be urging that the fact that the instant case is a capital offense distinguishes it from Patterson v. State, supra.

The matter of allowing the State to reopen is discretionary. Patterson v. State, supra; Adams v. State, 154 Tex.Cr.R. 92, 221 S.W.2d 264. No abuse of discretion is shown in the instant case.

Appellant contends, “the court erred in allowing to be admitted into evidence over the objection of the defendant, color photographs showing the deceased which went to prove no disputed issue of fact and were introduced solely and only for the purpose of enraging and inflaming the minds of the jury.”

A color photograph of the deceased lying on the ground at the place where his body was discovered was admitted into evidence over appellant’s objection. The photograph shows what was identified as blood on his face. It is not suggested that the body had been altered in any manner from the condition in which it was found. Since a verbal description of the body and scene would have been admissible, a picture depicting the same is admissible. Martin v. State, Tex.Cr.App., 475 S.W.2d 265; Bailey v. State, Tex.Cr.App., 532 S.W.2d 316; Vasquez v. State, Tex.Cr.App., 532 S.W.2d 338; Sloan v. State, Tex.Cr.App., 515 S.W.2d 913.

Appellant contends that the court erred in admitting the testimony of Malcolm Halton at the punishment stage of the trial after it was shown that he was not familiar with appellant’s reputation in the community.

Appellant urges that police officer Hal-ton based his opinion of appellant’s reputation solely on a discussion of the instant offense.

At a hearing outside the presence of the jury, it was developed that Halton had arrested appellant on “several different occasions,” “had several calls on him concerning misconduct,” and had discussed appellant’s reputation with other officers. Halton stated that his discussion of appellant’s reputation with other officers was one of the bases upon which his opinion of appellant’s reputation was formed.

There is nothing to show that the testimony of the witness Halton was based solely upon a discussion of the instant offense. See Pogue v. State, Tex.Cr.App., 474 S.W.2d 492; Frison v. State, Tex.Cr.App., 473 S.W.2d 479; Proctor v. State, Tex.Cr. App., 503 S.W.2d 566. No error is shown.

Appellant also urges that the testimony of Ivory Sparks as to appellant’s bad reputation was inadmissible in that it was shown that the witness was not familiar with appellant’s reputation in the community. Sparks testified that she had talked to several friends about appellant after appellant tried to rape her daughter. Upon further questioning, the witness could only name Patricia Harris and her father as people with whom she had such discussions. We cannot agree that such testimony reflects that the witness had no knowledge of appellant’s reputation other than that which she might have gained through a discussion of the instant case. Further, we reject appellant’s argument that the record shows that the witness had not spoken with members of the community concerning appellant’s reputation. See Braxton v. State, Tex.Cr.App., 528 S.W.2d 844. No error is shown.

Appellant urges that the court erred in allowing the State to strike for cause prospective jurors who expressed an inability to give consideration to the assessment of the death penalty.

At the outset, we reject appellant’s argument that allowing the State to challenge for cause denies the appellant an equal opportunity to take the same number of strikes and denies a defendant due process of law by giving the State an unfair advantage to challenge for cause. Suffice it to note that appellant had the right to challenge for cause any juror who could not give the minimum punishment. Both the appellant and the State had the right to have jurors who believe in the full range of punishment. We perceive no error. It would appear to be appellant’s position that there is no reason for the disqualification of prospective jurors on the death penalty issue since the jurors do not know the effect of their answers under our new statutory scheme providing for the imposition of the death penalty. This argument was answered adversely to appellant in Hovila v. State, Tex.Cr.App., 532 S.W.2d 293.

Appellant complains of the court’s action in excusing prospective jurors Jackson, Dean, McCrary, Robinson and Culberson.

Prospective juror Jackson stated that he believed, “Thou shalt not kill,” that it would be the same thing as his “pulling the trigger,” and that he could not think of a case in which he could ever vote to impose the death penalty.

Prospective juror Dean stated that the knowledge that there were only two possibilities in assessing punishment, life imprisonment and death, would affect his deliberations on any issue of fact.

The record reflects the following examination of prospective juror McCrary:

“Q. Can you conceive, Mr. McCrary, of any fact situation where you would consider the giving of the death penalty?
“A. Under no circumstance.
“Q. Ever, in any case?
“A. No, sir.”

After prospective juror Robinson stated that the possible punishment of life or death would not affect his deliberations, he responded to further questioning that under the worst case he could possibly think of he could not vote for the death penalty.

Prospective juror Culberson stated that there was not any case he could think of where he would consider giving the death penalty.

In Hovila v. State, supra, this Court held that the holding of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), was still alive and well in light of the new statutory scheme providing for the imposition of the death penalty.

Prospective jurors Jackson, McCrary, Robinson and Culberson were not excused in violation of the standards of Witherspoon. See White v. State, Tex.Cr. App., 543 S.W.2d 104 (1976); Moore v. State, Tex.Cr.App., 542 S.W.2d 664 (1976).

Prospective juror Dean was disqualified under the provisions of V.T.C.A. Penal Code, Sec. 12.31(b), when he stated that the knowledge that the penalty would be life imprisonment or death would affect his deliberations on any issue of fact. See Moore v. State, supra; Whitmore v. State, Tex.Cr.App., (No. 52,325, Oct. 13, 1976).

Lastly, appellant contends that “The Court erred in that Article 1257, of the Penal Code of the State of Texas is unconstitutional in that it allows a death penalty to be imposed and carried out under statutory schemes which permit arbitrary, rare and discriminatory use, and is in violation of the Eighth Amendment to the United States Constitution, in that it provides for cruel and unusual punishment.”

Appellant’s contentions were answered adversely to him by the United States Supreme Court in Jurek v. Texas, - U.S. -, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). See also Gregg v. Georgia,-U.S.-, 96 S.Ct. 2909, 49 L.Ed.2d 859) Profitt v. Florida, - U.S. -, 96 S.Ct. 2960, 49 L.Ed.2d 913.

The judgment is affirmed.

Opinion approved by the Court.

      . In Witherspoon, the Supreme Court said:
      “Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientiousness or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.”

      . V.T.C.A. Penal Code, Sec. 12.31(b), provides:
      “Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”


author: DALLY, Commissioner.

text:
    Ex parte Robert ELLIOTT.
    No. 52477.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1976.
    J. R. Musslewhite, Houston, for appellant.
    Carol S. Vanee, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., 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 an order in a habeas corpus proceeding in which the appellant was remanded to custody for extradition to the State of Indiana.

The appellant urges that the trial court’s order should be reversed because he is not the same person named in the Governor’s Warrant and because he was charged by information, not by indictment, for the felony offense of rape when he had not consented to be charged by information.

The Governor’s Warrant which is regular on its face was introduced and makes out a prima facie case supporting the court’s order. The Governor’s Warrant recites: “. . . Bob Elliott stands charged by information, supporting affidavit, and warrant . . . with the crime of rape

In the habeas corpus hearing the appellant testified when he was asked if he was the person charged with the offense: “No, sir. I don’t know.”

There was admitted in evidence an affidavit of the complaining witness. Attached to the affidavit was a photograph of the man the complainant identified as the man who committed the rape. The appellant admitted that this photograph was of him. This evidence is sufficient to overcome the testimony of the appellant if it could be construed as his denial of being the person named in the Governor’s Warrant. See Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.1975); Ex parte Viduari, 525 S.W.2d 163 (Tex.Cr.App.1975), and Ex parte O’Connor, 169 Tex.Cr.R. 579, 336 S.W.2d 152 (1960).

The appellant also testified that he had never been known by the name “Bob,” but that his name was “Robert.” When two names have the same derivation or when one is an abbreviation or a corruption of the other, and one is commonly used for the other, the use of one for the other is not a material misnomer. Evans v. State, 509 S.W.2d 371 (Tex.Cr.App.1974); Alsup v. State, 36 Tex.Cr.R. 535, 38 S.W. 174 (1896). A commonly known diminutive or abbreviation is sufficient to identify a person in the absence of evidence indicating that a different person is intended. O’Brien v. Cole, 532 S.W.2d 151 (Tex.Civ.App.1976).

The appellant’s remaining contention that he could not be extradited because he had been charged with a felony by information when he had not consented to being charged by information is also without merit.

The supporting papers which the appellant offered and which were admitted in evidence contained an affidavit made by the complainant before a magistrate and a warrant issued pursuant to that affidavit. The affidavit and warrant would have been sufficient to support the extradition even though the appellant had not been charged by either indictment or information. Article 51.13, Sec. 3, V.A.C.C.P.; Ex parte Rosenthal, 515 S.W.2d 114 (Tex.Cr.App.1974); Ex parte Posey, 453 S.W.2d 833 (Tex.Cr. App.1970).

The judgment is affirmed.

Opinion approved by the Court.


author: CORNELIUS, Commissioner. ROBERTS, Judge

text:
    Robert Rodriguez SALINAS, Appellant, v. The STATE of Texas, Appellee.
    No. 52532.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1976.

      Raul E. Guerra, San Antonio, on appeal only for appellant.
    Ted Butler, Dist. Atty., and Gordon V. Armstrong, John A. Hrncir and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Voders, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

CORNELIUS, Commissioner.

In a jury trial appellant was convicted of the offense of sale of heroin. Punishment, assessed by the court at appellant’s election and enhanced by reason of a previous conviction, was set at thirty years’ confinement.

The first ground of error complains of the failure of the trial court to grant appellant’s motion for continuance which sought a postponement due to the unavailability of the witness Jimmy Martinez Levine. The motion was made during pre-trial hearings on May 14, 1975, the day of trial. Appellant refers to such motion as his third motion for continuance, but the record shows it was the fifth. Motions were made and granted on February 15, 1973, August 1, 1973, October 4, 1974 and February 3, 1975. The motion of October 4, 1974, was also based on the unavailability of the witness Levine. In both that motion and the one made during the pre-trial hearing, appellant asserted that Levine was present at the time the offense was alleged to have occurred and that appellant could show by Levine’s testimony that he did not sell any heroin to Albert Chevera as alleged in the indictment, but that Levine, an undercover narcotics agent, actually made the sale. Levine and Chevera worked together as undercover narcotics agents and made numerous cases in San Antonio about the time of the alleged sale by appellant.

We have concluded that the trial court did not abuse its discretion in overruling appellant’s fifth motion for continuance. Appellant was arrested on September 8, 1972, some thirty-three months before the trial. His only showing of diligence in attempting to locate Levine was that a private investigator was hired about two weeks prior to the trial, and a subpoena was issued for Levine on the day of the trial. The subpoena was returned on the day of its issuance with the notation “Mrs. Marina Levine, who resides at this address, states she has not seen her brother-in-law (Jimmy Levine) in over three years — no further info.” Appellant’s trial attorney had only represented him for about four months before the trial. He made some brief efforts to locate Levine and then hired the private investigator who spent about eighteen hours looking for him. There was no showing as to the efforts of the five previous attorneys who represented appellant during some twenty-nine months between his arrest and the trial. If appellant and those attorneys exercised diligence in attempting to locate Levine during all of that time, or even from the date of his first motion based on Levine’s absence in October, 1975, and were unable to do so, it would appear unlikely that the witness could have been located if appellant’s fifth motion for continuance had been granted. If the evidence does not indicate a probability that the witness can be secured by a postponement, or if it appears that a continuance due to the absence of the witness would delay the trial indefinitely, the motion may be properly denied. Zamora v. State, 158 Tex.Cr.R. 85, 253 S.W.2d 277 (1952); Tuck v. State, 155 Tex.Cr.R. 113, 231 S.W.2d 436 (1950); France v. State, 148 Tex.Cr.R. 341, 187 S.W.2d 80 (1945); 12 Tex.Jur.2d, Continuance, Sec. 63, Pp. 647, 648. In addition, we note that appellant’s motion did not allege that the testimony could not be procured from any other source known to the defendant, as is specifically required by Art. 29.07, Vernon’s Ann. C.C.P. See Buford v. State, 133 Tex.Cr.R. 320, 111 S.W.2d 258 (1937): Beasley v. State, 118 Tex.Cr.R. 197, 43 S.W.2d 100 (1931).

Grounds of error two and three assert that appellant was deprived of his right to compulsory process for witnesses by reason of deliberate interference by the State. He contends that the San Antonio Police Department caused the witness Levine to leave San Antonio and secrete himself so as to escape the process of the court and thereby make his testimony unavailable. Appellant produced no evidence to that effect, but he requests this court to take judicial notice of certain testimony summarized by this court’s opinion in White v. State, 517 S.W.2d 543 (Tex.Cr.App.1974). It is contended that White v. State involved an offense which occurred at about the same time of the offense here and involved the same witnesses to this offense, viz. Officer Chevera and Jimmy Levine. Lt. Slocum of the San Antonio Police Department testified in that case that Chevera and Levine worked under his supervision- and that after making a number of narcotics cases Levine expressed the opinion that he ought to leave town. Slocum told Levine he agreed, and he had one of his men give Levine $75.00. We are asked to judicially notice Slocum’s testimony in White v. State, thus considering it as proven for the purposes of this case, and then to hold that Slocum’s testimony proves unlawful interference by the State with appellant’s right to produce the testimony of Levine. We decline to do so for several reasons. First, although an appellate court will take judicial notice of its own records in the same or related proceedings involving the same or nearly the same parties, the general rule is that an appellate court cannot go to the record of another case for the purpose of considering testimony not shown in the record of the case before it. Victory v. State, 138 Tex. 285, 158 S.W.2d 760 (1942); State v. Savage, 105 Tex. 467, 151 S.W. 530 (1912); 1 McCormick & Ray, Texas Law of Evidence, Sec. 186, P. 207. Second, this case and White v. State are not the same. The cases involve some of the same witnesses but they do not involve the same defendants or the same offenses. Third, this court in White v. State denied the claim of state interference, holding that White failed to show the requisite diligence to obtain Levine’s testimony or show his unavailability. Certainly appellant’s showing in this case did not exceed that in White.

Ground four, which asserts that appellant established the necessary diligence as outlined in White v. State, supra, is overruled for the reasons stated above.

Appellant has filed a supplemental pro se brief raising five additional grounds of error. He first contends that the court should have stricken the enhancement count of the indictment because the date of the prior offense was not alleged. This contention is overruled. The indictment alleged the date of the previous conviction. It is not necessary that the date of the offense be alleged. Loud v. State, 499 S.W.2d 295 (Tex.Cr.App.1973); Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781 (1956).

Appellant next complains of three different comments made by the prosecutor in his jury arguments. They were:

“I don’t think I have to tell you about the problem we have in San Antonio with heroin.”
“ . . .1 think it is a safe inference that being an informer is a very hazardous profession.”
“I ask that you make this a fast verdict because every second that you are out justice is denied.”

The first comment appears to be a legitimate plea for law enforcement. The second is based on common knowledge and does not appear to have been prejudicial to appellant. See White v. State, supra, at page 551. We are unable to conclude that the third comment was in any way calculated to injure appellant since the objection was sustained. No error is shown.

It is next asserted that the State failed to establish the proper chain of custody for its exhibit No. 1, which was a green balloon containing heroin, which the state’s testimony showed was obtained by Officer Chevera from appellant. The basis of appellant’s contention is that the state’s chemist identified the balloon by his initials which he had placed on it, but he admitted there were two other sets of initials also on the balloon.

There was no break in the chain of custody or uncertainty of identification as a result of this evidence. The chemist positively identified the exhibit and his initials upon it. Officer Chevera had previously testified that he and Officer Doyle had also placed their respective initials on the exhibit, in the presence of each other, shortly after Chevera’s purchase and before the exhibit left his possession.

We find no reversible error. All of appellant’s grounds are overruled and the judgment is affirmed.

Opinion approved by the Court.

ROBERTS, Judge

(concurring).

I cannot agree that the prosecutor’s comment about “the problem we have in San Antonio with heroin” was a legitimate plea for law enforcement. The argument was clearly not based on the evidence, and “such evidence would not have been admissible had it been offered.” Lopez v. State, 500 S.W.2d 844, 846 (Tex.Cr.App.1973). See also White v. State, 492 S.W.2d 488 (Tex.Cr. App.1973). Like the arguments in Lopez and White, this argument was improper.

However, the only objection to this argument was a general one and thus nothing is presented for review. See, e. g., Hunter v. State, 530 S.W.2d 573, 575-576 (Tex.Cr.App. 1975).

The comment that “being an informer is a very hazardous profession” was also outside the record, but in this instance counsel properly objected on this ground, thus preserving the error for review. Since the argument was outside the record and improper, the trial court should have sustained the objection; however, I conclude that, in light of the entire record, the appellant was not unduly prejudiced by the remark. See Barrientez v. State, 487 S.W.2d 97, 101 (Tex.Cr.App.1972); Black v. State, 491 S.W.2d 428, 431-432 (Tex.Cr.App.1973).

I therefore agree that reversible error is not presented.

ODOM, J., joins in this concurrence.

      . Huffman v. State, 479 S.W.2d 62 (Tex.Cr.App.1972); Ex Parte Terwillinger, 231 S.W.2d 447 (Tex.Cr.App. 1950).


author: ODOM, Judge.

text:
    Darrell D. PICKETT, Appellant, v. The STATE of Texas, Appellee.
    Nos. 52631, 52632.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1976.

      Ronald N. Hayes, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and James C. Brough, Michael A. Andrews, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

These appeals are from orders revoking probation.

In No. 52,631, appellant was convicted of robbery by assault on August 22, 1973. In No. 52,632, he was convicted of assault with intent to rob on August 23, 1973. Punishment was assessed at ten years in each cause. In both, imposition of sentence was suspended and probation granted. Among the conditions of each probation was the requirement that appellant commit no offense against the laws of any state or the United States.

On March 26, 1974, the State filed motions to revoke each probation, alleging in both that on February 14; 1974, appellant violated the above cited condition of his probations in that he committed the offense of attempted burglary. The trial court, after hearing evidence on the motions to revoke, found that appellant had committed the offense of burglary, revoked appellant’s probations, and reduced the punishment in each to eight years.

The conviction in No. 52,631 (robbery by assault) must be set aside and the prosecution ordered dismissed because the indictment for the underlying offense is fundamentally defective. The charging portion of that instrument alleges that appellant on February 27, 1973, did:

“assault Sharon Veatch hereafter styled the Complainant, and did by the assault, by violence, and by putting the Complainant in fear of life and bodily injury, fraudulently and against the Complainant’s will take from the person and possession of the Complainant money with the intent to deprive the Complainant of the value of the property and to appropriate it to the Defendant’s use.”

It is well established that in a prosecution for robbery under our former Penal Code ownership of the property taken is an essential element of the offense. It is critical, therefore, that the indictment directly aver such ownership in some person. The failure of the indictment in the instant case to do so is fundamental error and renders that instrument incapable of supporting a conviction for robbery by assault. Franks v. State, Tex.Cr.App., 532 S.W.2d 631 (on motion for rehearing); Page v. State, Tex.Cr. App., 532 S.W.2d 341; Pittman v. State, Tex.Cr.App., 532 S.W.2d 97; Batro v. State, Tex.Cr.App., 531 S.W.2d 614; Ainsworth v. State, Tex.Cr.App., 531 S.W.2d 613; French v. State, Tex.Cr.App., 531 S.W.2d 613; Arline v. State, Tex.Cr.App., 529 S.W.2d 73; Bouie v. State, Tex.Cr.App., 528 S.W.2d 587; Lucero v. State, Tex.Cr.App., 502 S.W.2d 128.

Next, we must consider appellant’s grounds of error with respect to the order revoking his probation in Cause No. 52,632.

First, he contends that our present Penal Code enumerates no offense of attempted burglary and therefore the State’s motion to revoke was not sufficient to charge a violation of any of the conditions of probation. In light of V.T.C.A. Penal Code Sec. 15.01 and Sec. 30.02, this contention is without merit.

Next, appellant contends the evidence was insufficient to show any entry, as that term is defined in V.T.C.A. Penal Code Sec. 30.02(b) and which is an element of the offense of burglary under V.T.C.A. Penal Code Sec. 30.02(a)(1).

The record in the instant case reflects that two police officers were summoned to the building allegedly burglarized following the sounding of a silent alarm. When they arrived, they saw appellant kneeling outside a glass door. When he saw the officers, he said, “Oh, no!” and fled on foot, but was quickly apprehended. He was wearing gloves and had a brown plastic garbage bag. No property was missing from within the building and there was no direct evidence that appellant or any physical object connected with his body had intruded within the building. Instead, there was only the circumstantial evidence that a corner of the glass door had been broken and pieces of broken glass lay both inside and outside the building.

We need not address the issue of the sufficiency of the circumstantial evidence in this proceeding to support the trial court’s finding that appellant had committed burglary, for even if the evidence were held to be sufficient, the trial court would nevertheless have abused its discretion in so finding. The reason is that the only offense alleged in the State’s motion to revoke was attempted burglary, as appellant points out in his final contention.

Probation may not be revoked upon a finding of any violation of the law other than that alleged or necessarily included within the allegations of that alleged in the motion to revoke. Franks v. State, Tex.Cr.App., 516 S.W.2d 185; Ford v. State, Tex.Cr.App., 488 S.W.2d 793.

Obviously, burglary is not a lesser included offense of attempted burglary. Hence, the trial court should not have revoked appellant’s probation for a statutory violation not alleged in the State’s motion to revoke.

The question remains whether the evidence was sufficient to support a finding of attempted burglary. V.T.C.A. Penal Code Sec. 15.01(a)(b) provides:

“(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. •
“(b) It is no defense to prosecution for criminal attempt that the offense attempted was actually committed.”

The breaking of the glass in the door of the building would clearly be sufficient to show such an act. Hence, the greater weight of the evidence must establish that appellant broke the glass and that he did not merely come upon the damaged door after it had been broken by someone else. See Scamardo v. State, Tex.Cr.App., 517 S.W.2d 293. The key circumstance establishing appellant’s guilt m this respect is the sounding of the silent alarm and the subsequent dispatching of police officers to the scene, the record reflects, within a very few minutes after the alarm was sounded. The testimony at the hearing established that the alarm could only have been triggered by the breaking of the window. The evidence recited was sufficient to support a finding of attempted burglary.

Accordingly, pursuant to our authority under Art. 44.24(b), V.A.C.C.P., the judgment is reformed to state that appellant’s probation was revoked upon a finding that he had committed the offense of attempted burglary. See Hancock v. State, Tex.Cr. App., 491 S.W.2d 139.

The judgment in No. 52,631 is reversed and the prosecution is ordered dismissed.

The judgment in No. 52,632 is reformed as stated and, as reformed, is affirmed.

DOUGLAS, J., dissents for the reasons stated in his opinion in Ex parte Banks, Tex.Cr.App., 542 S.W.2d 183 (1976).

      . In the event the State desired that appellant’s probation be revoked for commission of burglary, the proper procedure, including amendment of the motion to revoke, and, if necessary, granting of a continuance, is discussed in Franks v. State, Tex.Cr.App., 516 S.W.2d 185, 188, n. 3.


author: DAYIS, Commissioner. DOUGLAS, Judge

text:
    Lorraine N. AGUILAR, Appellant, v. The STATE of Texas, Appellee.
    Nos. 53189 and 53190.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1976.

      S. Cliff Preslar, El Paso, on appeal only, for appellant.
    Steve W. Simmons, Dist. Atty., and James C. Butts, Asst. Dist. Atty., El Paso, Jim D. Yollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAYIS, Commissioner.

Appeals are taken from orders revoking probation. A plea of guilty was entered by appellant to the offense of robbery by firearms on August 27, 1973, and punishment was assessed at five years probated. On July 25, 1975, appellant pleaded guilty to the offense of aggravated robbery and punishment was assessed at ten years probated.

Amended motions to revoke appellant’s probations in both causes were filed on December 22,1975, alleging that appellant had violated her probations in that,

“. . . on or about the 29th day of August, 1975, in the County of El Paso and State of Texas, the said defendant, LORRAINE AGUILAR did then and there requested (sic) permission to go to Los Angeles, California, from her Probation Officer Terry Lund, which was granted on the agreed to and ordered provision that the defendant, LORRAINE AGUILAR, would return to El Paso, Texas, on September 7,' 1975, and further report to her probation officer, Terry Lund, on September 8, 1975. The defendant, LORRAINE AGUILAR, then failed to return to the confines of El Paso County, Texas, on September 7, 1975, as directed by her Probation Officer, Terry Lund. Additionally, the defendant LORRAINE AGUILAR, also failed to report to her Probation Officer, Terry Lund. Each and either of these acts constitutes separate violations of the defendant’s, LORRAINE AGUILAR, conditions of probation.
“Additionally, the defendant, LORRAINE AGUILAR, neglected to obtain the Court’s permission to leave the confines of El Paso County, Texas prior to absenting herself from the confines of El Paso County, Texas, during the approximate period of September 1, 1975, through September 19,1975. Such negligence constitutes an additional and separate violation of the defendant’s LORRAINE AGUILAR, conditions of probation.
“Additionally, on the 25th day of October, 1975, in the County of El Paso and State of Texas, the said defendant, LORRAINE AGUILAR, did the (sic) and there unlawfully, knowingly and intentionally deliver to PATRICIA SOTORE, a controlled substance, namely: Heroin. Such act constitutes a violation of the defendant’s conditions of probation.”

The record reflects that after a hearing on January 20, 1976, the court entered orders in both causes revoking appellant’s probations, said orders reciting:

“. . . that said defendant violated the terms of his probation in the respect set out in said Motion to Revoke Adult Probation in that she: on the 29th day of August, 1975, in the County of El Paso and State of Texas, the said defendant, LORRAINE AGUILAR, did request permission to go to Los Angeles, California, from her probation officer which was granted on the ordered provision that she would return to El Paso, Texas, on September 7, 1975, and report to her probation officer on September 8, 1975. The defendant, LORRAINE AGUILAR, neglected to obtain the Court’s permission to leave the confines of El Paso County, Texas, thus violating one of her conditions of probation, and then absented herself from the confines of El Paso County during the approximate period of September 1, 1975 through September 19, 1975.
“Additionally, the defendant, LORRAINE AGUILAR, violated the conditions of her probation by her failure to return to El Paso County on September 7, 1975, as directed by her probation officer, and by her failure to report to her probation officer on September 8, 1975, as directed by her probation officer. Each and either of these acts constitutes separate violations of the defendant’s, LORRAINE AGUILAR, conditions of probation.”

At the outset, appellant contends that the trial court abused its discretion in revoking appellant’s probations “on the ground that she neglected to obtain the court’s permission to leave El Paso County because the defendant did not have fair notice that her probation officer could not grant her permission to leave.”

Condition “9” of the probations provided that appellant “Remain within the confines of El Paso County or as directed by the Court.”

Terry Lund testified that appellant was placed on her “case load” in the probation department “sometime probably in July of 1975,” and she issued a travel permit to appellant to visit her sister in Los Angeles on August 29, 1975, and that such permit provided that appellant was to report to the “West Texas Regional Adult Probation Department upon return 9/7/75.” The reporting date of September 7 was changed to September 8 when Mrs. Lund discovered that the former date was Labor Day. Lund further stated that it was the policy to leave discretion in the probation department in the matter of granting permission to leave the county for thirty days or less. According to Lund, appellant had never requested permission to leave before the incident in question.

Condition “1” of appellant’s probations requires that she “Obey all orders of the Court and the Probation Officer.”

The State points to the fact that appellant was placed on two probated sentences, had received copies of same, and well knew that the court required that permission to leave was to be obtained from the court.

In Campbell v. State, Tex.Cr.App., 456 S.W.2d 918, this Court said:

“. . . while a state is not constitutionally required to provide for probation and revocation proceedings as a part of its criminal process any more than it is required to provide for appellate review, when it does, then due process and equal protection of the law is fully applicable thereto.”

We find it to be an abuse of discretion to revoke probation on the basis of appellant’s failure to obtain the court’s permission to leave town when appellant had received a permit authorizing such a trip from her probation officer and had been admonished to obey the orders of her probation officer in the judgment of probation.

Appellant contends that the court abused its discretion in revoking probation “on the ground that she failed to return to El Paso County on September 7 and report on September 8, 1975.”

We find no condition of probation which required appellant to return to El Paso County on September 7.

Condition “6” of appellant’s probation judgments required that she “Report to the Probation Officer as required.” In Parsons v. State, Tex.Cr.App., 513 S.W.2d 554, cited by appellant, this Court held:

“The condition in the probation order that he report to the probation officer ‘as directed’ was not enforceable because it did not specify when he was to report and it was an unlawful delegation of authority of the probation officer to direct him to report.”

See Smith v. State, Tex.Cr.App., 527 S.W.2d 896.

The State responds by citing Brown v. State, Tex.Cr.App., 508 S.W.2d 366, where it was stated:

“The exercise of improperly delegated authority by a probation officer cannot make the delegation effective, although on different facts, where parties over a period of time have accepted such a delegation of authority as shown by the course of conduct between them, a probationer may be estopped from objecting to being held to the duty assumed.”

The testimony of probation officer Lund reflects the following:

“Q. Would you tell us, please, during this two and a half or three months period of time generally how and when you directed her [appellant] to report to you?
“A. Yes, sir. As I stated, she was having difficulties in seeking employment and obtaining employment and was having some personal problems and I directed her to report to me about once a week.
“Q. About once a week?
“A. Right.
“Q. Did you ever direct her to report to you on a specific day of the week during that period of time?
“A. During that period of time, no.”

We cannot conclude that the instant cause falls within the cited language from Brown v. State, supra. The probation officer’s directive to appellant was to report “about once a week.” No specific day of the week was designated. We do not find this to be such a course of conduct between appellant and the probation officer as to estop appellant from objecting to the reporting date of September 8, 1975. The evidence does not sustain the court’s finding relative to appellant’s violation of her probation for failure to report to her probation officer.

The State points to an announcement of the court from the bench relative to appellant possessing heroin and urges that such statement by the trial judge supports the orders of revocation. The record reflects that the court made the following statement:

“As far as the factual concept that she [appellant] did not know that she possessed the heroin in this case, the Court cannot believe that. So, based upon the foregoing, it is the ruling of this Court that the defendant’s probation be revoked.”

Appellant filed a written motion requesting the court “. . . provide a statement of the Findings of Fact and Conclusions of Law specifically reciting those findings upon which this Honorable Court’s order of Revocation is based. . . .”

The orders revoking appellant’s proba-tions contain the court’s findings. Such orders do not include any findings relative to appellant possessing heroin, but reflect that probation was revoked on the court’s findings hereinbefore set forth.

The written findings of the court control over the oral announcement. Ablon v. State, Tex.Cr.App., 537 S.W.2d 267; Balli v. State, Tex.Cr.App., 530 S.W.2d 123.

Absent a written finding that appellant violated her probation by possessing heroin, we are not faced with the question of whether the evidence would support such a finding.

We conclude that the trial court abused its discretion in revoking appellant’s proba-tions.

The judgments are reversed and the causes remanded.

Opinion approved by the Court.

DOUGLAS, Judge

(dissenting).

The majority is holding that a probationer may take advantage of that part of an unauthorized order permitting her to leave, but she is not bound by that part of the order where she must return. In this she has the best of two worlds. She gets to leave and nothing under the majority opinion requires her to return at any time.

If she can take advantage of a part of an unauthorized order, she should follow all of the order. She knew when she was to return, and she did not do so. Two wrongs do not make a right.

This writer would not agree that probation could be revoked for one leaving the State when a probation officer authorizes it but would hold that, when one leaves on such a condition to return, probation may be revoked for failing to do so.

Under the reasoning of the majority opinion, the probation should be revoked because she left the State in violation of the court’s order without permission of the court.

No abuse of discretion has been shown. The judgments should be affirmed.

ODOM, J., joins in this dissent.


author: BROWN, Commissioner.

text:
    Elwin Joseph OUBRE, Appellant, v. The STATE of Texas, Appellee.
    No. 53259.
    Court of Criminal Appeals of Texas.
    Nov. 3, 1976.

      Brantley Pringle, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., Jim Bennett, Marvin Collins and Paul E. Gartner, Jr., Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from an order revoking probation.

On April 7, 1975, appellant was convicted of aggravated kidnapping. Punishment was assessed at six years, probated. Condition (a) of his probation was that he commit no offense against the laws of this state or any other state or of the United States.

On September 30, 1975, the State filed a motion to revoke appellant’s probation alleging that on September 26,1975, during the term of probation, appellant had violated condition (a), supra, in that he did knowingly and intentionally possess a usable quantity of marihuana of more than four ounces. On February 13, 1976, after hearing evidence on the motion to revoke, the court found that appellant had violated condition (a) as alleged, ordered the probation revoked and sentenced appellant to a term of not less than five years nor more than six years.

Appellant initially contends that the case should be reversed because (1) there was a fatal variance between the search warrant and the affidavit, (2) the search was void ab initio, and (3) the search was general and far exceeded the permissible limits of the Fourth Amendment to the United States Constitution.

The affidavit described with particularity the appellant’s wife and the apartment to be searched. The warrant authorized the search of the apartment, appellant’s wife and persons unknown who may be found at the premises to be searched. Although the affidavit made no mention of any automobile, the warrant authorized the search of “the place and motor vehicle therein named and described.” Obviously, the search of an automobile was not legally justified as not being supported by the affidavit for the warrant. However, the marihuana obtained was all found in the apartment and was legitimately within the scope of the affidavit which controls over the warrant. Riojas v. State, Tex.Cr.App., 530 S.W.2d 298. As the officers approached the door of the apartment, the door opened and a Mrs. Mapps started out. The officers made her return to the apartment and subsequently searched her but found no marihuana in her possession. Clearly she was within the scope of “persons unknown who may be found at the premises to be searched.” When the officers entered the apartment they saw appellant lying on the floor in front of the television set which was turned on. In plain view and within about two feet of appellant were baggies containing marihuana. Marihuana was also found in a drawer in the kitchen and in the bathroom. In searching the bedroom, the officers found letters addressed to appellant and approximately 200 photographs many of which being pictures of appellant and his wife. Appellant’s contention that the search was general and far exceeded the permissible limits of the Fourth Amendment to the United States Constitution is based upon the fact that the officers retained possession of the envelopes addressed to appellant at the apartment address as well as the photographs showing appellant and his wife in the apartment. These items were retained for the purpose of showing appellant’s occupancy of the premises as bearing upon the issue of his possession of the marihuana found therein. Further, a considerable quantity of marihuana had already been found in three rooms of the apartment and, according to the officers, the bedroom search was a mere continuation of their authorized search for marihuana. The fact that incident to the authorized search there was discovered evidence bearing upon appellant’s joint possession of the apartment does not invalidate the search as it was legitimately within the scope of the affidavit and the warrant issued pursuant thereto. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 and Chambers v. State, Tex.Cr.App., 508 S.W.2d 348. See also, Woods v. State, Tex. Cr.App., 533 S.W.2d 16.

Appellant next contends that the evidence was insufficient to show knowing possession of the marihuana by appellant as he was asleep on the floor when the officers arrived. The contention that appellant was asleep is not supported by the evidence. The record reveals that as the officers entered the living room they saw appellant lying on the floor with his head propped up with pillows from the couch. He was facing the television which was turned on. Since appellant’s contention is based upon a misstatement of the evidence, nothing is presented for review.

Finally, appellant contends that the court erred in refusing him the right to go behind the face of the affidavit and question the officer about the reliability of the informant. It is well settled that the court will not look behind the allegations of an affidavit for the issuance of a search warrant. Phenix v. State, Tex.Cr.App., 488 S.W.2d 759; Wetherby v. State, Tex.Cr. App., 482 S.W.2d 852; Brown v. State, Tex. Cr.App., 437 S.W.2d 828. Apparently appellant contends that on an occasion subsequent to the arrest of appellant the same informer gave information which proved to be inaccurate. This obviously could have had no bearing upon the magistrate’s determination of probable cause when he issued the search warrant which was the basis of the search in this cause.

The judgment is affirmed.

Opinion approved by the Court.


author: DIES, Chief Justice.

text:
    J. D. ROOT et al., Appellants, v. John W. MECOM, Trustee, et al., Appellees.
    No. 7802.
    Court of Civil Appeals of Texas, Beaumont.
    Aug. 19, 1976.
    Rehearing Denied Sept. 16, 1976.

      Price Daniel, Jr., Liberty, for appellants.
    J. C. Zbranek, Liberty, Claude C. Roberts, Houston, for appellees.
   DIES, Chief Justice.

We review a trespass to try title case of 1850 pages of Statement of Pacts, and 671 pages of Transcript. However, the facts and the contentions of the parties are not as involved as the length of the record would indicate. Harvey and Louise Mecom (both now deceased) owned a 2700 acre tract of land in Liberty County, sometimes referred to as the “Hull Farm.” Harvey Mecom is referred to almost completely in the record as “Big Harvey.” His nephew, Harvey C. Mecom, or “Little Harvey”, as he is referred to by the witnesses, came to live with “Big Harvey” and Louise at about age 6½ years, and was reared by them. “Big Harvey” and wife had one child, John W. Mecom.

On January 2, 1952, “Big Harvey” and wife, Louise, executed a Deed in Trust to their son, John W. Mecom, which included this 2700 acre tract. By the terms of the trust agreement, “Little Harvey” was to receive $300 a month for life, which was paid until his death, July 26, 1960.

On July 31, 1938, “Little Harvey” married; his wife is referred to as “Elmer.” They had one child, Florence. On September 16, 1953, “Little Harvey” and Elmer contracted for the building of a home on the 2700 acre tract and moved into it some six weeks afterward. Elmer still lives in it. At the time this home was built, both “Big Harvey” and wife, Louise, were still alive.

On July 10, 1970, John W. Mecom, Trustee, as plaintiff below, filed this suit in trespass to try title against Elmer and Florence, and others, defendants below. Trial was to a jury, after which judgment was given plaintiff, John W. Mecom, and from which defendants below perfect this appeal.

It was defendants’ contention that “Big Harvey” had made a parol gift of the land to “Little Harvey”, after which he and wife, Elmer, made valuable improvements. Defendants also urged they acquired title by adverse possession. Alternatively, defendants plead they had made improvements in good faith and asked recovery for the value of the improvements.

The jury findings were: (1) That in the year 1951, “Big Harvey” gave the land in question to “Little Harvey” and Elmer. (2) That, thereafter, “Little Harvey” and Elmer took possession of said land with “Big Harvey’s” consent. (3) That the gift was in June 1951. (4) That “Little Harvey” and Elmer made permanent and valuable improvements on the land after the gift, with “Big Harvey’s” knowledge and in reliance on the gift. (5) That Florence, “Little Harvey”, and Elmer had peaceable and adverse possession of the land, using and cultivating the same for a period of ten consecutive years or more prior to July 10,1970 (date of John Mecom’s suit). (6) That the ten-year period began June 1951. (11) That prior to the time “Little Harvey” and Elmer constructed the permanent and valuable improvements, “Big Harvey” and wife, Louise, conveyed the land to John W. Me-com as Trustee. (12) That prior to the time “Little Harvey” executed the contract to build the home, he learned of the deed from “Big Harvey” and wife, Louise, to John W. Mecom, Trustee. (13) That during his lifetime “Little Harvey” accepted the benefits of the trust agreement dated January 2, 1952 ($300 per month previously noted herein).

The defendants contend these findings gave them title to the land.

To establish a parol gift of this land from “Big Harvey” to “Little Harvey” the oft-cited case of Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114 (1921) requires three elements: (1) the gift, (2) possession under the gift by donee with the donor’s consent, and (3) permanent and valuable improvements made on the property by the donor’s knowledge and consent; or, without such improvements, the presence of such facts as would make the transaction a fraud upon the donee. See also Clifton v. Ogle, 526 S.W.2d 596, 600 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n. r. e.); Harris v. Potts, 528 S.W.2d 321 (Tex.Civ.App.—Beaumont 1975, writ granted); Hines v. Taylor, 476 S.W.2d 81 (Tex.Civ.App.—Houston [14th Dist.] 1971, no writ). See also, Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191, 192 (1951); Moody v. Ireland, 456 S.W.2d 494, 496 (Tex.Civ.App.—Waco, writ ref’d n. r. e.); Patterson v. Hall, 439 S.W.2d 140 (Tex.Civ.App.—Austin 1969, writ ref’d n. r. e.).

The doctrine is based on estoppel and to prevent fraud. Hooks v. Bridgewater, supra at 1117.

Here the jury found the parol gift was made in 1951, and this finding has support in the evidence. However, it (the jury) also found that prior to executing the contract to build their home (September 16, 1953) “Little Harvey” found out about the deed to John W. Mecom as trustee. And this finding is supported by sufficient evidence. Since the doctrine of parol gift is based on estoppel, and to prevent fraud, the permanent and valuable improvements would have had to be made by “Little Harvey” prior to knowledge that “Big Harvey” had deeded away the land. This the jury was not asked.

Further the finding that “Little Harvey” knew of the Mecom trustee deed before building the' house, requires a finding that he took possession of the land prior to this time. See Thurmon v. Atlantic Refining Company, 336 S.W.2d 268, 273 (Tex.Civ. App.—Dallas 1960, writ ref’d n. r. e.):

“The possession required under Hooks v. Bridgewater, supra, is possession that is exclusive and adverse to the owner of the title to the land. ‘In order for possession to serve as one of the elements necessary to remove the contract from the operation of the Statute of Frauds, the possession must be exclusive and adverse to the donor. There must be a complete surrender of possession by the donor.’ ” (Citing authorities) See also Powell v. Wiley, 141 Tex. 74, 170 S.W.2d 470 (1943).

As for the claim of adverse possession, we are unable to see how “Little Harvey” could claim adversely to John W. Me-com after he began receiving and accepting the benefits of the trust, and with knowledge that Mecom had been deeded the land as trustee. It has been stated many times in Texas jurisprudence that to mature a title by limitation, the possession of the claimant must have been adverse or hostile. See Warren v. Frederichs, 83 Tex. 380, 18 S.W. 750 (1892); Mhoon v. Cain, 77 Tex. 316, 14 S.W. 24 (1890); Oury v. Saunders, 77 Tex. 278, 13 S.W. 1030 (1890); Horton v. Crawford, 10 Tex. 382 (1853); Hall v. Hix, 297 S.W. 491, 496 (Tex.Civ.App.—Fort Worth 1927, writ ref’d); Chicago, R. I. & G. Ry. Co. v. Johnson, 156 S.W. 253 (Tex.Civ. App.—Galveston 1913, no writ); Gillespie v. Jones, 26 Tex. 343 (1862). The ’ possession and acts done on the land must be of such nature as to notify the true owner of the assertion of a hostile claim. See Gillespie v. Jones, 26 Tex. 343 (1862); W. T. Carter & Bro. v. Richardson, 225 S.W. 816 (Tex.Civ. App.—Beaumont 1920), 236 S.W. 978 (Tex. Com.App.1922, jdgmt. adopted); see also, Scott v. Rodgers, 6 S.W.2d 731 (Tex.Com. App.1928, jdgmt. of Court of Civ.App. reversed and rendered). It has been said that this burden rests on the claimant, the presumption being that claimant holds in subordination to the owners’ title. See Wichita Valley Ry. Co. v. Somerville, 179 S.W. 671 (Tex.Civ.App.—Austin 1915, no writ); Texas & N. O. R. Co. v. Williams, 178 S.W. 701 (Tex.Civ.App.—Galveston 1915, no writ); Billingsley v. Houston Oil Co. of Texas, 182 S.W. 373, 378 (Tex.Civ.App.—Galveston 1915), 213 S.W. 248 (Tex.Com.App.1919 reversed on other points). How could John W. Mecom be on notice of “Little Harvey’s” adverse possession when the latter accepted the trust payments every month of his life after its creation? These findings do not in our opinion give defendants title, and the points contending this are overruled.

Among defendants’ points is one urging “[t]he trial judge erred in submitting Issues Nos. 7, 8, 9, and 10 conditionally, because defendants had requested that such submission be unconditional and had tendered a similar, but unconditional, set of issues in substantially correct wording in writing, and the trial judge’s conditional submission deprived defendants of their right to have these ultimate fact issues determined by the jury.”

In Special Issue No. 7, the court inquired if “Little Harvey” and Elmer had possession of the land in question in good faith and made permanent and valuable improvements thereon. But, since it was conditioned on a “We do not” answer to the inquiry of whether “Big Harvey” orally gave the land to “Little Harvey” and Elmer (Special Issue No. 1), or on a “We do not” finding to the inquiry of adverse possession (Special Issue No. 5), the jury failed to answer the issue.

To repeat, the jury found a parol gift and adverse possession for the defendants. Special Issue No. 8 was conditioned on the jury answering “We do” to the issue on valuable improvements (Special Issue No. 7); and, since this was unanswered, it (the jury) did not answer Special Issue No. 8 inquiring the present value of said land including permanent improvements made by “Little Harvey” or Elmer prior to July 10, 1970. Likewise, the jury failed to answer Special Issue No. 9 which inquired of the present cash value of the land exclusive of the permanent improvements made by “Little Harvey” and Elmer prior to July 10, 1970.

Special Issue No. 10 asked the reasonable rental value of the land (exclusive of the improvements) during the period 1951 to 1970. Since it was conditioned on a “We do” answer to Special Issue No. 7, it, likewise, was unanswered.

Tex.Rev.Civ.Stat.Ann. art. 7393 (1960) provides:

“The defendant in any action of trespass to try title may allege in his pleadings that he and those under whom he claims have had adverse possession in good faith of the premises in controversy for at least one year next before the commencement of such suit, and that he and those under whom he claims have made permanent and valuable improvements on the lands sued for during the time they have had such possession, stating the improvements and their value respectively, and stating also the grounds of such claim.”

We find no merit in the contention advanced. In Parrish v. Jackson, 69 Tex. 614, 7 S.W. 486, 487 (1888), the Court said:

“To constitute one a possessor in good faith he must not only believe that he is the true owner, and have reasonable ground for that belief, but he must be ignorant that his title is contested by any person claiming a better right. Dorn v. Dunham, 24 Tex. 366, 380.”

Similar holdings may be found in this series of cases by our Supreme Court: Pilcher v. Kirk, 60 Tex. 162 (1883); Sartain v. Hamilton, 12 Tex. 219 (1854); Houston v. Sneed, 15 Tex. 307 (1855); Dorn v. Dunham, 24 Tex. 366 (1859); Hutchins v. Bacon, 46 Tex. 408 (1877); House v. Stone, 64 Tex. 677 (1885); Gaither v. Hanrick, 69 Tex. 92, 6 S.W. 619 (1887).

In the recent case of Miller v. Gasaway, 514 S.W.2d 90, 93 (Tex.Civ.App.—Texarkana 1974, no writ), the court cited Parrish v. Jackson, supra, and continued:

“It is generally held that one has the duty to investigate the records prior to erecting improvements, and that if an examination of such records would readily reveal the true status of his claim, he cannot qualify as a good faith improver. Parrish v. Jackson, supra; West v. Peters, 287 S.W. 81 (Tex.Civ.App., Galveston 1926, no writ); Donaldson v. Rail, 14 Tex.Civ.App. 336, 37 S.W. 16 (Tex.Civ. App.1896, writ dism’d); Hall v. Wilson, 215 S.W.2d 204 (Tex.Civ.App., Texarkana 1948, writ ref’d, n. r. e.)”

The record shows conclusively that “Little Harvey” began accepting payments from the trust in February 1952; thus, any recovery by the defendants is restricted to good faith improvements made prior to that date. The time period within which defendants may claim compensation is further limited by the jury’s answer to Special Issue No. 11 asking whether the land in question was conveyed to John Mecom, trustee, prior to the time “Little Harvey” and Elmer Mecom made any permanent and valuable improvements thereon. The jury found that it had been so conveyed, and there is evidence in the record to support this finding.

A finding that the land was conveyed before permanent and valuable improvements were made is, in effect, a finding that no such improvements were made before January 2, 1952, when the land was conveyed to John Mecom, trustee; and, this being so, defendants are not entitled to recover for anything done by them prior to that date. Under this record, then, the defendants could only recover for permanent and valuable improvements made during the less than two months’ period between January 2, 1952, and the end of February 1952.

There is, however, no evidence in the record to show that any permanent and valuable improvements were made during this time. In order to go to the jury on these issues, defendants had the burden of pleading and proving the extent to which good faith improvements, if any, had enhanced the value of the land in question. Sharp v. Stacy, 525 S.W.2d 721, 723-724 (Tex.Civ.App.—Eastland 1975), affirmed Tex., 535 S.W.2d 345 (1976); Herndon v. Reed, 82 Tex. 647, 18 S.W. 665 (1891). Under this record the defendants failed to sustain their burden of proving the making of permanent and valuable improvements during the crucial time period; and, this being so, any error of the trial court in conditionally submitting Special Issues Nos. 7, 8, 9, and 10 was harmless error.

The judgment of the trial court is, therefore, affirmed.

AFFIRMED.

STEPHENSON, J., not participating.