author: HALL, Justice.

text:
    Edward F. DOLLGENER, Appellant, v. ROBERTSON FLEET SERVICES, INC., et al., Appellees.
    No. 5448.
    Court of Civil Appeals of Texas, Waco.
    Sept. 4, 1975.
    Rehearing Denied Sept. 25, 1975.

      Hassell & Riley, Douglas Riley, Jr., Dallas, for appellant.
    Rain, Harrell, Emery, Young & Doke, Marshall M. Searcy, Jr., Dallas, for appel-lees.
   HALL, Justice.

This suit is against the plaintiff’s former employer, Robertson Fleet Services, Inc. (hereinafter “RFS”), and the trustees of a profit-sharing pension plan which was wholly funded by the company. The plaintiff seeks benefits under the plan in the amount of $18,619.58. The trial court held that under the terms of the plan the plaintiff forfeited his interest in it when he began competing with RFS after leaving its employment, and rendered summary judgment denying recovery. We affirm.

There is no dispute in the material facts. The plaintiff is 55 years of age. For the past 30 years he has worked only as a salesman of automotive and truck parts. He was continuously employed in this capacity by RFS from September, 1959, until July 1, 1973. In November, 1961, the company voluntarily established a profit-sharing pension plan for its employees and set forth the terms of the plan in a written instrument. The plan is funded entirely by the company, and the plaintiff has never contributed money to it. Accrued benefits under the plan are payable upon an employee’s retirement, disability, death, or termination of employment. However, pertinent here, Sections 7.12 and 7.13 of the plan provide in part as follows:

“7.12 As to any Participant who is dismissed for either fraud or dishonesty . or who becomes a competitor or an employee of a competitor, such Participant shall receive no benefits whatsoever under the Plan, and all his interest in the Plan shall immediately be forfeited.
“7.13 Any forfeitures arising under Section 7.12 shall be allocated to the accounts of the remaining Participants in accordance with [the terms of the Plan].”

The termination of the plaintiff’s employment with RFS was voluntary on his part. Immediately upon leaving RFS, he organized a family-held corporation known as Texas Fleet Supply, Inc., and began employment as its manager and supervisor in competition with RFS. At this time he was familiar with the provisions of paragraph 7.12 of the Plan.

Contracts not to compete are in restraint of trade and are not enforceable if unreasonable in their terms. Wissman v. Boucher, 150 Tex. 326, 240 S.W.2d 278, 280. Restraints of trade unlimited as to time or space are generally held to be unreasonable. Justin Belt Company, Inc. v. Yost, (Tex.Sup., 1974) 502 S.W.2d 681, 685. The plaintiff likens the clause in question to a covenant by him not to compete with RFS upon termination of his employment and asserts that, being unlimited in its terms as to either time or area, it is void and unenforceable.

The question of whether forfeiture provisions like the one before us in noncontributory profit-sharing pension trusts are effectually covenants not to compete and are in restraint of trade has not been decided in Texas. However, a clear majority of courts of other jurisdictions have held that such clauses, though unrestricted in time and territory, are not subject to the same considerations of public policy that relate to covenants not to compete, and that they are not in restraint of trade. The rationale of this rule is set forth in the oft-cited case of Rochester Corporation v. Rochester, 450 F.2d 118 (4th Cir. 1971). Deciding the question under the law of the State of Virginia for the first time, the court stated in that case [at 450 F.2d 122-123]:

“The authorities, though, generally draw a clear and obvious distinction between restraints on competitive employment in employment contracts and in pension plans. The strong weight of authority holds that forfeitures for engaging in subsequent competitive employment, included in pension retirement plans, are valid, even though unrestricted in time or geography. The reasoning behind this conclusion is that the forfeiture, unlike the restraint included in the employment contract, is not a prohibition on the employee’s engaging in competitive work but is merely a denial of the right to participate in the retirement plan if he does so engage. A leading case on this point is Van Pelt v. Berefco, Inc., [1965] 60 Ill.App.2d 415, 208 N.E.2d [858] at p. 865, where, in passing on a forfeiture provision similar to that here, the Court said:
‘The contributions and distributions of benefits under the retirement plan involved here were made voluntarily according to provisions mutually accepted by defendants and plaintiff. Having admittedly breached the provisions of the plan plaintiff cannot be heard to complain that he is entitled to the benefits thereof, and no question of lack of good faith is presented for our determination as we construe Massachusetts law.
‘Commerce Clearing House Pension Plan Reporter, par. 56,295 states: “Many plans permit the employer, or the retirement committee in charge of administering the plan, to reduce or terminate benefits' in case the employee, after his retirement, engages in any activity which is competitive with or detrimental to the employer’s business.” The conditional retirement plan provision in the instant case was designed by the employer to protect against competition by former employees who may retire and obtain post-retirement benefits from them while at the same time engaged in competitive employment. The employer, as part of a non-contributory plan may provide for such contingencies.
‘There is no restraint here upon plaintiff’s right to future employment. He is free to engage in competition with [his former employer] without restraint or interference by defendants, but he is not free to do so while accepting benefits of the retirement plan to which he contributed nothing.’ ”

Some of the more recent cases in accord with the maj'ority rule are Hudson v. North Carolina Farm Bureau Mutual Ins. Co., (1974) 23 N.C.App. 501, 209 S.E.2d 416, 418; Alco-Columbia Paper Service, Inc. v. Nash, (La.App., 1973) 273 So.2d 630, 632; Evo v. Jomac, Inc., (1972) 119 N.J.Super. 7, 289 A.2d 551, 554; Swift v. Shop Rite Food Stores, Inc., 83 N.M. 168, 489 P.2d 881 (1971); Alldredge v. City National Bank & Trust Co. of Kansas City, (Mo., 1971) 468 S.W.2d 1, 3; Garner v. Girard Trust Bank, (1971) 442 Pa. 166, 275 A.2d 359, 362; Brown Stove Works, Inc., v. Kimsey, (1969) 119 Ga.App. 453, 167 S.E.2d 693, 695; Flynn v. Murphy, (1966) 350 Mass. 352, 215 N.E.2d 109, 110; Molburg v. Hunter Hosiery, Inc., 102 N.H. 422, 158 A.2d 288 (1960).

The minority view is expressed in Food Fair Stores, Inc., v. Greeley, 264 Md. 105, 285 A.2d 632, 638 (1972) as follows:

“We recognize that the Plan, as a contract, does not restrain Greeley’s rights to future employment in the sense that it does not present the classic situation wherein the employee, by assuming a position in a competitive field exposes himself to a suit by the employer for breach of contract or by way of a bill for injunc-tive relief. Here, Greeley is free to engage in competition without restraint or interference by Food Fair, but he is not free to do so and receive the benefits of the Plan. . . . However, one cannot gainsay the fact, that whether the restraint on the employee is by way of an employment contract arming the employer with legal sanctions or by virtue of a pension plan, which holds over the employee the loss of benefits should he compete, in either instance, the employee is subject to an economic loss should he breach the restrictive covenant.”

If we should adopt the plaintiff’s view that clause 7.12 in the pension plan before us should be treated as a negative covenant to prevent post-employment competition, it is the settled rule that such a covenant does not violate the public policy of this State and will be enforced by the courts even though the contract is not reasonably limited as to time or region. A court of equity will reform the contract and enforce it by granting an injunction restraining the defendant from competing for a time and within an area that are reasonable under the circumstances. Weatherford Oil Tool Company v. Campbell (1960) 161 Tex. 310, 340 S.W.2d 950, 952.

However, we agree with the distinction made in the majority view, above, between a negative covenant not to compete and a forfeiture provision in a noncontributory profit-sharing pension trust; and we believe the rule of construction based upon that view is more in keeping with the public policy of this State. Accordingly, we hold that the clause in question is a valid condition to the right to receive post-termination benefits from such a trust. It is not a vehicle by which RFS can enjoin competition by the plaintiff, and reformation of the provision and enforcement of it by the courts as a negative non-competitive agreement is neither required nor practical. It does not constitute an unreasonable restraint of trade and does not violate the public policy of this State. If public policy is involved, here, “it is the public policy which permits the utmost freedom of contract between parties of full age and competent understanding and requires that their contracts, when freely and voluntarily entered into, shall be held sacred and enforced by the courts.” Crutchfield v. Associates Investment Company, (Tex.Civ.App.—Dallas, 1964, writ ref.) 376 S.W.2d 957, 959. Having intentionally violated the trust provision, the plaintiff is precluded from recovering benefits as a matter of law, and the take-nothing summary judgment against him was proper.

The plaintiff raises other contentions and arguments. All are without merit and are overruled. The judgment is affirmed.

      . Although the trial record does not conclusively show that the plaintiff voluntarily left RFS or that his new employment is in competition with RFS, he expressly admits the fact of competition in his brief, and in oral argument before this court he stipulated that he voluntarily terminated his employment with RFS.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    BATJER & ASSOCIATES, INC., et al., Appellants, v. Juanita PORTER, a widow, Appellee.
    No. 5439.
    Court of Civil Appeals of Texas, Waco.
    Sept. 4, 1975.
    Haley, Fulbright, Winniford & Bice, W. C. Haley, Waco, Vial, Hamilton, Koch, Tubb, Knox & Stradley, William N. Hamilton, Robert H. Frost, Dallas, for appellants.
    Bowmer, Courtney, Burleson & Pember-ton, Bob Burleson, Temple, for appellee.
   HALL, Judge.

By a joint motion for dismissal, the parties have informed us that they have settled their differences and that this cause is now moot. When a cause becomes moot on appeal, all previous orders and judgments should be vacated and the cause dismissed. Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863 (1943); Blanton v. City of Houston, 163 Tex. 224, 353 S.W.2d 412 (1962). Accordingly, it is ordered that the judgment of the trial court be, and it is hereby, set aside, and this cause is dismissed. In keeping with the parties’ motion, all costs are taxed against the appellants.


author: O’QUINN, Justice.

text:
    Walter WOODRUM et al., Appellants, v. Joe R. LONG, Appellee.
    No. 12275.
    Court of Civil Appeals of Texas, Austin.
    Sept. 10, 1975.
    W. L. Burke, Jr., Robinson, Hanna, Burke & Moore, Inc., Abilene, for appellants.
    Gary Evatt, Joseph P. Webber, Long & Evatt, Austin, for appellee.
   O’QUINN, Justice.

Walter Woodrum and others, who are appellants, brought this suit in April of 1973 seeking to recover $31,000 from Joe R. Long and others on an oral contract alleged to have been made in connection with partial settlement of another lawsuit tried in May of 1972.

In the trial of this case, in June of 1974, a jury returned a verdict favorable to Long in part and in part favorable to appellants. Following various motions, for judgment in disregard of jury findings and later to set aside an early judgment entered in the case, the trial court by judgment entered in November of 1974 decreed finally that appellants take nothing by their suit against Long.

Antecedent litigation, from which this case stems, began with a suit instituted by Walter Woodrum against Ray Cowan and Jake Jacobsen in connection with a bank stock transaction in 1965 between the parties in Abilene, Texas, a case later considered by this Court in Woodrum v. Cowan, 468 S.W.2d 592, partially remanded, in which the Supreme Court subsequently directed a full remand, 472 S.W.2d 749. On remand of that cause to district court, trial of Woodrum’s claim against Cowan and Ja-cobsen began in May of 1972, during which settlement with Jacobsen developed, and out of the events that followed this suit ripened.

This suit is product of a brief telephone conversation which took place around 2 o’clock on the afternoon of May 9, 1972, when Woodrum’s suit against Cowan and Jacobsen was in its ninth day of trial and efforts were being made by counsel for both sides to reach ah agreement in settlement of Jacobsen’s accountability in the case. Jacobsen’s attorney, Arthur Mitchell, and Woodrum’s counsel, J. M. “Mike” Lee and W. L. “Dub” Burke, worked out an agreement that Jacobsen would pay Wood-rum $31,000 and Woodrum would “enter a motion and obtain an order of non-suit” against Jacobsen and “covenant not to further sue” Jacobsen on matters giving rise to the lawsuit.

Payment of the $31,000 was to be $15,000 by cash and $16,000 by note. At this point in negotiations a suggestion was made that Joe R. Long, then a law partner with Jacob-sen, be asked whether he would agree to become a guarantor on Jacobsen’s note for $16,000 to give assurance the note would be paid. It was then that the telephone call to Long at his law office was made from the courthouse where negotiations were being conducted. It is not clear which of the negotiators placed the call, but after Long was reached, Mitchell outlined the settlement agreement to Long and informed him appellants wanted Long’s guaranty on the note. Mitchell handed the telephone to one of Woodrum’s attorneys who talked briefly, less than one minute, to Long, and the call to Long thereafter came to an end.

Witnesses at the trial of the case now on appeal were not in agreement as to whether Long agreed to become a guarantor for Jacobsen. Long testified that he did not agree to guarantee the note, but told Mitchell that he would “have to think about it.” Mitchell testified that he simply explained the proposed settlement to Long and did not ask him to guarantee the note because Mitchell felt it improper for him to request guaranty of Long. Woodrum’s counsel testified he assumed Mitchell had obtained Long’s consent, and Mitchell testified he assumed counsel for Woodrum had obtained Long’s agreement to guarantee the note. Woodrum’s counsel believed Long understood the proposal and indicated his assent to be a guarantor.

Appellants bring three points of error. The first challenges the trial court’s action in granting Long’s motion for judgment and in disregarding the jury’s answers to three special issues with respect to the note, under which the jury found that Long made an agreement, that he intended to accept primary responsibility, and that the agreement was in consideration that Jacobsen be dismissed from the suit. By its answers to special issues, the jury absolved Long of liability for payment of the $15,000 in cash, but appellants contend that Long’s responsibility as to the proposed note for $16,000 was a primary obligation, jointly with Ja-cobsen, and is enforceable as a matter of law.

Under the second point appellants urge that such action was improper “for the reason that there is ample evidence of a legally sufficient nature to support such findings of the jury as necessary under the ‘main purpose’ doctrine.” The third point is that it was error to grant judgment not withstanding the verdict because “the doctrine of promissory estoppel is applicable.”

Appellee presents eight counterpoints on appeal and six crosspoints. Under the first' three counterpoints appellee urges that appellants have failed to assume the burden on appeal of establishing that the trial court’s judgment notwithstanding the jury’s findings on certain special issues cannot be supported on any grounds relied on in appellee’s motion for judgment. Appel-lee contends that the trial court’s act of sustaining the specified complaints set forth in the motion for judgment, by the very language of the complaints, constitutes independent grounds for affirming the judgment, and that by failing to assert on appeal, by point of error or by argument, that the trial court erred in making such holdings, appellants have waived their right to question any of these grounds for affirmance.

In his motion for judgment notwithstanding the jury’s findings with respect to the proposed note for $16,000 appellee complained, in Paragraph XI of the motion, as follows:

“The evidence establishes, as a matter of law, that there was no enforceable, contractual agreement between Defendant, Joe R. Long, and Plaintiffs, or any of them, with respect to a $16,000 note or guaranty thereof in that there was no agreement on the essential terms of the guaranty or of the alleged $16,000 note. Specifically, the evidence establishes, as a matter of law, that there was never any contractual agreement made with respect to interest rate, date of maturity, method of payment (installment or lump sum), place of payment, acceleration or non-acceleration of maturity, or upon any other term (except alleged principal amount), whether similar or dissimilar to those specifically named.”

On appeal, under Counterpoint One, ap-pellee asserts that the trial court held that “the evidence establishes, as a matter of law, that there was no enforceable, contractual agreement . . . with respect to the . . . note or guaranty thereof in that there was no agreement as to the essential terms of” the guaranty or the note, and that this holding of the trial court “constitutes a separate and independent ground for affirming the judgment . . ” Specifically, appellee contends under Counterpoint One that “Appellants have failed to assert, by point of error or by argument, that the trial court erred in making said holding, and appellants have, therefore, waived any complaint as to said holding.”

In this contention appellee relies on the rule stated by the Supreme Court in McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex.Sup.1964): “The judgment of the trial court merely recites that specific grounds were set forth in the motion for instructed verdict, and that the court was of the opinion that the motion was well taken and should be granted. To reverse the judgment of the trial court under these circumstances, it was necessary for petitioner to assume the appellate burden of establishing that the peremptory instruction cannot be supported on either of the grounds set out in the motion. If he has waived the right to question either of such grounds or if either is sound, the judgment of the trial court must be affirmed.”

In the final judgment entered November 13, 1974, the trial court stated, in pertinent part, “The Court further finds that the complaints urged in paragraphs . XI [among others] of the Motion . for Judgment in Disregard of the Findings of Jury on Certain Special Issues and, in the Alternative, Notwithstanding the Verdict of the Jury, should be and are hereby sustained and that . . . [appellee] is entitled to a judgment, with respect to the $16,000 claim . . . that Plaintiffs [appellants] take nothing, notwithstanding the findings of the jury in response to” the certain special issues.

Under Counterpoints Two and Three ap-pellee again invokes the doctrine of McKelvy v. Barber, supra, as applicable to complaints made in paragraphs IX and XII of appellee’s motion for judgment, which the trial court also sustained and found as a basis for judgment that plaintiffs below take nothing notwithstanding the findings of the jury.

Under paragraph IX appellee complained that “the evidence establishes, as a matter of law, that the cause of action of Plaintiffs as to the . . . note or guaranty thereof was based upon an alleged oral agreement not to be performed within one year . and that neither such agreement nor a memorandum thereof is in writing and signed” by appellee. Appellee complained that the alleged agreement was unenforceable as a matter of law under the statute of frauds (Sec. 26.01(a) and (b)(1) of the Texas Business and Commerce Code).

Under paragraph XII appellee complained in the motion for judgment that the evidence established as a matter of law that plaintiffs below contemplated that the note or guaranty “would be reduced to writing and that . . . Plaintiffs nor any agent . . . presented any written guaranty or note to . [appellee] for his consideration and/or execution within a reasonable period of time, thereby relieving . . . [appellee] as a matter of law, of any alleged liability for the nonpayment of the $16,000 note or the debt represented thereby or the failure to execute a written guaranty of a non-existent note.”

We agree with appellee that nowhere in their brief do appellants, by point of error or by argument, complain of the trial court’s action in sustaining paragraphs XI, IX, and XII of appellee’s motion for judgment, in concluding that appellee was entitled to judgment with respect to the claim for $16,000, and in ordering that appellants, as plaintiffs below, take nothing, “notwithstanding the findings of the jury in response to Special Issues 5, 6, 7 and 8.”

After stating the doctrine here relied on by appellee, the Supreme Court in McKelvy established an exception, found in this language: “After a point of law has thus been briefed by all parties and decided by the Court of Civil Appeals, we think it should be treated as having been properly presented for decision at the intermediate court level even though not raised by a formal point of error in the appellant’s brief.” (381 S.W.2d 62, col. 2).

No basis for the exception exists in this appeal, as neither appellants nor appellee present any argument or point of error concerning the merit of the trial court’s holding or the court’s action in sustaining paragraphs XI, IX, or XII of appellee’s motion for judgment. In this case appellee presented a motion for judgment notwithstanding the jury’s findings which contained several separate and independent grounds, including the grounds specified in paragraphs XI, IX, and XII. The grounds set out in those paragraphs were specifically sustained by the trial court’s judgment and upon such findings the court decreed that appellants take nothing by their suit as to the claim for $16,000 against appellee. Appellants have failed, either by point of error or by arguinent in their brief, to complain of the trial court’s action in sustaining these independent grounds for affirmance. Appellee has in no manner discussed or argued the merits of the trial court’s holding as to these grounds.

Under the doctrine of McKelvy appellants had the burden on appeal to establish that the judgment notwithstanding the verdict cannot be supported on any of the grounds set out in the motion for judgment. Whatley v. K-Mart Discount Stores, 451 S.W.2d 568, 570 (Tex.Civ.App. Houston (1st Dist.) 1970, writ ref. n. r. e.). In failing to meet this burden appellants have waived any right to complain of the trial court’s action in sustaining the independent grounds asserted in the motion for judgment. McKelvy v. Barber, supra; Bishop v. Allied Finance Company, 483 S.W.2d 46, 49 (Tex.Civ.App. Dallas 1972, no writ); Carrico v. Stop-N-Go Markets of Texas, Inc., 492 S.W.2d 383, 384 (Tex.Civ.App. San Antonio 1973, no writ).

The judgment of the trial court is affirmed.

      . Appellants who were plaintiffs below are Walter Woodrum, W. L. Burke, Jr., and the law firm of Robinson, Hanna & Burke, a partnership. Original defendants were Jack [sic ] Jacobsen, Joe Long, and Arthur Mitchell. Appellants later took a nonsuit as to Jake Jacobsen and by stipulation agreed that Mitchell had no liability for $15,000 “check or cash immediate payment” and liability only “as a secondary guarantor behind Joe Long on the $16,000.00 note.” The remaining defendant, Joe R. Long, is the sole appellee on appeal.


author: DAVIS, Commissioner.

text:
    Ruben V. COLUNGA, Appellant, v. The STATE of Texas, Appellee.
    No. 49993.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.
    Rehearing Denied Oct. 8, 1975.

      Thomas Rocha, Jr. and Louis T. Rosenberg, San Antonio, both court-appointed, for appellant.
    Ted Butler, Dist. Atty., and Charles T. Conaway, John L. Quinlan, III, and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for murder. Punishment was assessed by the jury at 199 years.

The record reflects that Solomon Abdo died of knife wounds inflicted during a robbery which occurred at the deceased’s grocery store in San Antonio on January 17, 1969. The first trial was in July, 1970, and the conviction resulting therefrom was reversed by this Court. This appeal stems from the conviction at the second trial in September, 1973. The record was filed in this Court on March 7, 1975.

The testimony of Jesse Montez and Feli-ciana Martinez reflects that Hector Garza, Jesse Gonzales, and Montez entered the Abdo store on the date in question while appellant circled the block in a car with Martinez.

The court instructed the jury that co-defendant Montez was an accomplice as a matter of law, and submitted the issue of whether or not Martinez (against whom no indictment was returned) was an accomplice as a question of fact for the jury to resolve.

A number of appellant’s contentions are directed to the court’s failure to charge the jury that both Montez and Martinez were accomplices as a matter of law.

About 4:30 p. m. on the day in question, appellant and Garza drove to a house where Gonzales and Martinez were living in what was described as a common law relationship. The four of them then drove to the corner of Guadalupe and Brazos, where appellant made inquiry of Montez and his companions about obtaining guns. According to Montez, appellant stated the reason he wanted guns was that “He was going to do an easy job.” Upon appellant’s inquiry, “Do you want to make some money?” Montez answered in the affirmative, and appellant told Montez to “get in the car.” They then proceeded to Gonzales’ house, where Gonzales obtained a knife.

Appellant then drove to North Zarzamora Street, where he pointed out a store that “was easy.” Appellant instructed Garza, Gonzales, and Montez on the roles they were to carry out in the robbery. Appellant told Garza, “If you have to use the knife, use it.” According to plan, Montez entered the store first and asked the deceased for soda water. Gonzales and Garza then entered the store, and Garza grabbed the deceased. The deceased resisted, and was stabbed five times. Montez removed what was later determined to be two dollars in nickels from the cash register. Gonzales, Montez and Garza fled from the scene upon observing a car in front of the store. All later assembled in a cafe, where a division of the fruits of the robbery was made. Martinez, when offered twenty-five cents as her “cut,” pushed the money toward Gonzales and said, “I don’t want any of that money.” Martinez, who was either fourteen or fifteen at the time in question, testified that she never intended to participate in the robbery.

Appellant urges that Martinez was an accomplice witness as a matter of law, and that the jury should have been instructed that a conviction could not be had upon her testimony as an accomplice unless corroborated pursuant to Art. 38.14, V.A.C.C.P.

The record does not reflect that Martinez was ever an active participant in the planning or carrying out of the robbery or murder. Unlike the others present, Martinez was not assigned a role in the robbery by appellant, nor does the evidence show that Martinez advised, commanded or encouraged the principals to commit the offense, or agreed to aid them, or aided them in its commission. See Chapman v. State, Tex. Cr.App., 470 S.W.2d 656.

This Court has consistently held that where there is a doubt as to whether a witness is an accomplice witness, and such fact is submitted to the jury, such procedure is sufficient even though the evidence seems to preponderate in favor of the fact that such witness is an accomplice witness as a matter of law. Ward v. State, Tex.Cr.App., 520 S.W.2d 395; Jackson v. State, Tex.Cr.App., 516 S.W.2d 167; Zitterich v. State, Tex.Cr.App., 502 S.W.2d 144; Allen v. State, Tex.Cr.App., 461 S.W.2d 622.

We conclude that the court did not err in submitting the issue of whether or not Martinez was an accomplice witness as a question of fact for the jury to resolve. We further find that the court properly instructed the jury relative to corroboration of accomplice testimony.

Appellant contends that under the doctrine of collateral estoppel, the State cannot deny that Martinez is an accomplice.

Appellant points to the fact that in the first trial of this case the trial court instructed the jury that Martinez was an accomplice witness as a matter of law. Appellant argues that since the proceeding involved the same parties, was before a court of competent jurisdiction, and an appellate court made a determination that the trial court correctly instructed the jury on this issue, that the second trial was bound by the court’s determination that Martinez was an accomplice witness as a matter of law.

At the outset, we find appellant’s premise that this Court made a determination that Martinez was an accomplice witness as a matter of law to be faulty.

Moreover, we find appellant’s reliance upon Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, for the proposition that collateral estoppel applies to the instant case, to be misplaced. In Ashe v. Swenson, supra, the United States Supreme Court held that collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy, and where a defendant had been acquitted of the only rationally conceivable fact issue in dispute by a valid and final judgment in a previous trial, the government was precluded from a subsequent prosecution. In the instant case, we are not confronted with the trial of a fact issue in which appellant had previously been acquitted by a valid and final judgment.

Appellant contends that he has twice been placed in jeopardy for the same offense since the first conviction was reversed on the insufficiency of the evidence to support the conviction.

It appears to be appellant’s position that a reversal on the insufficiency of the evidence should be tantamount to a judgment of acquittal at the original trial.

In Gilmore v. U. S., 264 F.2d 44 (5th Cir., 1959), cert. denied, 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982, it was stated that the guarantee against double jeopardy does not prohibit a new trial even though reversal of the initial conviction is for want of sufficient evidence. See U. S. v. Nall, 437 F.2d 1177 (5th Cir., 1971).

We reject appellant’s claim of jeopardy.

Appellant contends the court erred in admitting a hearsay conversation between a co-defendant and one Jesse Corona.

Corona testified that he talked to co-defendant Garza outside the presence of the appellant. During the course of the conversation, Garza asked Corona if he “wanted to pull a job.” The fact that a conspiracy existed between Colunga, Garza, Montez and Gonzales is apparent from the evidence. There was proof in the record that the appellant and the above-mentioned companions were acting together in perpetrating the robbery. At the time of the conversation between Garza and Corona, they had already procured a weapon to commit the offense, and were seeking the aid of others.

In Helms v. State, Tex.Cr.App., 493 S.W.2d 227, it was stated, “Each statement or act of a co-conspirator up until the time the object of the conspiracy is completed is admissible. . . . ” See Morgan v. State, Tex.Cr.App., 519 S.W.2d 449; Lapp v. State, Tex.Cr.App., 519 S.W.2d 443; White v. State, Tex.Cr.App., 451 S.W.2d 497. No error is shown.

Appellant contends he was deprived of his right to a speedy trial.

A review of appellant’s briefs filed with this Court in which he urges that he has been denied his right to a speedy trial under the Sixth Amendment to the Constitution of the United States and Article I, Section 10 of the Texas Constitution reflects that appellant is basing his contention upon the delay in appellate review following the second trial.

The constitutional guarantee of right to speedy and public trial applies to a “trial by jury to determine guilt or innocence and does not include an appeal which is simply the method provided for review of the proceedings in a trial which has already been held.” Cunningham v. State, Tex.Cr.App., 484 S.W.2d 906; Zanders v. State, Tex.Cr.App., 515 S.W.2d 907; State v. Lagerquist, 254 S.C. 501, 176 S.E.2d 141 (1970), cert. denied, 401 U.S. 937, 91 S.Ct. 912, 28 L.Ed.2d 216 (1971). Absent a showing that a delay on appeal amounts to a denial of due process, relief will not be granted. Cunningham v. State, supra; Zanders v. State, supra.

The record reflects that the second trial began on September 10, 1973. A jury verdict assessing appellant’s punishment was returned on September 12,1973, and on the same date appellant waived the ten-day period in which to file a motion for new trial, was sentenced, and gave notice of appeal. Counsel for appeal were appointed on September 13, 1973.

On January 10, 1974, appellant filed a motion to be furnished with a statement of facts. A second motion, for statement of facts appears in a supplemental record without date of filing appearing thereon. Appellant asserts that said motion was filed on April 10, 1974, and points to paragraph numbered “VI” therein, where it is urged that he is entitled to a speedy trial, including appeal.

The supplemental record also includes a letter to the trial judge, dated July 1,1974, in which complaint is made of delay in preparation of the record.

On July 18,1974, counsel were notified of the completion of the record. On July 31, 1974, appellant filed his objections to the record and a hearing was held on same on October 17, 1974. Notice that the record had been approved after objections was given counsel on November 7,1974. After the State was granted two motions for extension of time in which to file its brief, new trial was denied on February 27, 1975, and the record was ordered transmitted to this Court.

Appellant urges that delay in the appeal process “has prevented the reconsideration of a double jeopardy issue determined not properly before this Court in 1972 . . .”

While we cannot condone the delay in preparing the record, we cannot say that such delay amounted to a denial of due-process.

The judgment is affirmed.

Opinion approved by the Court.

      . See Colunga v. State, Tex.Cr.App., 481 S.W.2d 866 (1972).

      . See Garza v. State, Tex.Cr.App., 469 S.W.2d 169.

      . Article 38.14, V.A.C.C.P. provides:
      “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

      . In Colunga v. State, Tex.Cr.App., 481 S.W.2d 866, in an appeal from the first conviction, this Court said:
      “At the very least, there was evidence which would have required submission of the fact question of whether she [Martinez] was an accomplice witness in the court’s charge to the jury. It follows that we cannot say, as a matter of law, that the witness was not an accomplice.”

      . See Reese v. State, Tex.Cr.App., 481 S.W.2d 841, for a discussion of the harm which results from delay in criminal appeals.


author: DALLY, Commissioner.

text:
    David Bryant HODGE, Appellant, v. The STATE of Texas, Appellee.
    No. 50480.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.
    Hallie W. Gill, Houston, Court-appointed, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III and George 0. Jacobs, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of burglary of a habitation, a violation of V.T.C.A. Penal Code, Sec. 30.02. After accepting the appellant’s plea of guilty, hearing the. evidence and argument of counsel, the court assessed the appellant’s punishment at imprisonment for seven years.

The appellant asserts that the indictment is fundamentally defective since it does not state with sufficient particularity where the offense occurred in Harris County.

The pertinent part of the indictment reads as follows:

“. . . that in the County of Harris and State of Texas one DAVID BRYANT HODGE, . . heretofore on or about March 25, 1974, did then and there unlawfully with intent to commit theft, enter a habitation not then open to the public, owned by Curtis Windham, hereafter styled the Complainant, without the effective consent of the Complainant.”

The appellant complains that the indictment does not meet due process and statutory requirements because it does not describe where the offense occurred with sufficient particularity as (1) would enable him to plead the judgment in bar of a subsequent prosecution for the same offense (Art. 21.04, V.A.C.C.P.), (2) would give him notice of the particular offense with which he was charged (Art. 21.11, V.A.C.C.P.), and (3) to identify where the habitation of the complainant was located in Harris County (Art. 21.09, V.A.C.C.P.).

The seldom challenged and almost universal practice in preparing indictments is to describe the place where the criminal offense was committed by merely alleging that it was committed in a certain county. In Ledbetter v. United States, 170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162 (1898), the prosecution was for unlawfully carrying on a business as a retail liquor dealer without paying a required tax. The place where the indictment alleged the offense was committed was “. . .in the county of Appa-noose, in the Southern district of Iowa, and within the jurisdiction of this court, . . ” Although it did not recommend the indictment as a model, the Supreme Court held the indictment described sufficiently the place where the offense was committed.

In 1853, when the Supreme Court of this state had jurisdiction of criminal appeals and the state was permitted to appeal, the Supreme Court held that a trial court had erred in quashing an indictment alleging the commission of a theft, and after some rather vitriolic comments, Chief Justice Hemphill writing for the Court said:

“The indictment is further charged with uncertainty, for the want of an averment of a specific venue, whence, the goods were stolen. What was intended by this objection, we are not informed. If it be meant that the city, village or house, in which the property was stolen, must be averred, the objection cannot be sustained. The crime was alleged to have been committed in a specific county; and we have been referred to no law or principle, requiring a more minute specification.” State v. Odum, 11 Tex. 12.

In Corley v. State, 3 Tex.App. 412 (1878), Judge White writing for the Court of Appeals said:

“The indictment charged that appellant, ‘in the county of Houston aforesaid, did willfully disturb a congregation assembled for religious worship,’ etc. This was equivalent to charging that the congregation disturbed were assembled in the county of Houston. The pleader, had he so desired, might have specified the locality in which the church was situated, and the name of the church or other place in which the congregation was assembled, but such particularity in fixing the locus in quo is not prerequisite to the validity of the indictment. The indictment shows and charges the offense to have been committed within the jurisdiction of the court in which the indictment was presented, and in other respects follows the language of the statute.”

In Birdsong v. State, 387 S.W.2d 404 (Tex.Cr.App.1965), in a driving while intoxicated prosecution, where the offense was alleged to have occurred on a public road or highway within El Paso County, there was a claim that the indictment was not sufficient when it “does not allege any certain place in the very large county of El Paso where the alleged offense was committed.” This contention was rejected. See also Rasor v. State, 57 Tex.Cr.R. 10, 121 S.W. 512 (1909); Odell v. State, 95 Tex.Cr.R. 360, 254 S.W. 977 (1923); and Allen v. State, 149 Tex.Cr.R. 612, 197 S.W.2d 1013 (1946).

Many cases in numerous jurisdictions have held that it is not necessary to allege the place where the offense was committed with greater particularity than to allege it was committed in a certain county. The courts have considered, discussed and held that where the pleading alleges that the place where an offense was committed was within a named county it is a sufficient allegation of the place where the offense was committed to give a defendant notice of the offense with which he is charged and to enable him to plead a judgment in bar to subsequent prosecutions. See e. g., State v. Womack, 6 Ariz.App. 267, 431 P.2d 908 (1967); Sharp v. Territory, 13 Ariz. 416, 114 P. 974 (1911); People v. Mazzola, 80 Cal.App. 583, 251 P. 222 (1927); Highley v. People, 65 Colo. 497, 177 P. 975 (1919); Hamilton v. People, 24 Colo. 301, 51 P. 425 (1897); State v. Nixon, 295 So.2d 121 (Fla.App.1974); Sellars v. State, 113 Ga.App. 510, 149 S.E.2d 158 (1966); State v. McKeehan, 91 Idaho 808, 430 P.2d 886 (1967); People v. Bernatowicz, 35 Ill.2d 192, 220 N.E.2d 745 (1966); State v. Carrier, 235 Ind. 456, 134 N.E.2d 688 (1956); Meno v. State, 197 Ind. 16, 164 N.E. 93 (1925); State v. Japone, 202 Iowa, 209 N.W. 468 (1926); State v. Baumgardner, 112 Kan. 803, 212 P. 677 (1923); State v. Oswald, 59 Kan. 508, 53 P. 525 (1898); State v. Lewis, 159 La. 109, 105 So. 243 (1925); Morgan v. State, 287 A.2d 592 (Me.1972); Cookson v. State, 237 A.2d 589 (Me.1968); Tucker v. State, 481 S.W.2d 10 (Mo.1972); State v. Fowler, 59 Mont. 346, 196 P. 992 (1921); State v. McDowney, 49 N.J. 471, 231 A.2d 359 (1967); State v. Campos, 79 N.M. 611, 447 P.2d 20 (1968); People v. Player, 80 Misc.2d 177, 362 N.Y.S.2d 773 (1974); State v. Rogers, 273 N.C. 208, 159 S.E.2d 525 (1968); Carlile v. State, 493 P.2d 449 (Okl.Cr.App.1972); Phillips v. State, 34 Okl.Cr. 52, 244 P. 451 (1926); State v. Knighten, 12 Or.App. 41, 504 P.2d 761 (1972); State v. Cambron, 20 S.D. 282, 105 N.W. 241 (1905); State v. Hoven, 47 S.D. 50, 195 N.W. 838 (1923); State v. Kelly, 138 Tenn. 84, 195 S.W. 1126 (1917); State v. Burgess, 111 Wash. 537, 191 P. 635 (1920); State v. Johnson, 82 Wash. 347, 144 P. 57 (1914).

The appellant cites and relies upon Haworth v. State, 74 Tex.Cr.R. 488, 168 S.W. 859 (1914); Partson v. United States, 20 F.2d 127 (8th Cir. 1927); and Skelley v. United States, 37 F.2d 503 (10th Cir. 1930). In Haworth v. State, supra, the prosecution was for trespassing and taking earth and sand from certain property for which the title and ownership was in dispute. The court reversed the judgment and said that it was a proper case to be decided in the civil courts. The two federal cases cited by the appellant that hold it is necessary to allege where within a county the offense was committed are in a conspicuous minority of the cases in which the question has been raised, and there was a dissenting opinion in each of these two federal cases.

It must be remembered that the general rule that only the county need be alleged as the place where the offense was committed has some exceptions, because some offenses can only be committed in certain places within the county and the place where committed is an element of the offense. Although no greater particularity as to the place where the offense was committed is required, an indictment for driving while intoxicated must allege that the offense was committed on a public highway or road, or upon a street or alley within the limits of an incorporated city, town, or village within the county, because under the applicable statute that offense may only be committed on a public highway or road, or upon a street or alley. See Bedwell v. State, 142 Tex.Cr.R. 599, 155 S.W.2d 930 (1941); Allen v. State, 149 Tex.Cr.R. 612, 197 S.W.2d 1013 (1946); Blackburn v. State, 150 Tex.Cr.R. 572, 204 S.W.2d 619 (1947); Hartsook v. State, 156 Tex.Cr.R. 560, 244 S.W.2d 830 (1951). Although no greater particularity is required as to the place where the offense was committed, an indictment for carrying a handgun on premises licensed or having a permit to sell or serve alcoholic beverages must allege that the offense was committed on premises within the county for which a license or permit to sell or serve alcoholic beverages had been issued, because proof that the license or permit to sell or serve alcoholic beverages had been issued for the premises is an element of the offense. See Nevarez v. State, 503 S.W.2d 767 (Tex.Cr.App.1974), and Shane v. State, 513 S.W.2d 579 (Tex.Cr.App.1974). Also, if a court has less than countywide jurisdiction, it is necessary to allege a place within the jurisdiction of that court.

We hold, consistent with long-time practice supported by overwhelming authority, that it is only necessary to allege the name of the county as the place where an offense was committed, (1) if the offense may be committed anywhere within the county, (2) the place where committed is not an element of the offense, and (3) the court in which the offense is tried has countywide jurisdiction.

The judgment is affirmed.

Opinion approved by the Court.

      . It was held in Garza v. State, 522 S.W.2d 693 (Tex.Cr.App. 1975), that in a prosecution for burglary of a habitation, a violation of V.T.C.A. Penal Code, Sec. 30.02, the indictment need not allege “that the habitation was ‘not then open to the public.’ ”

      . Article 21.04, V.A.C.C.P., provides:
      “The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.”

      . Article 21.11, V.A.C.C.P., provides:
      “An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment; and in no case are the words ‘force and arms’ or ‘contrary to the form of the statute’ necessary.”

      .Article 21.09, V.A.C.C.P., provides:
      “When it becomes necessary to describe property of any kind in an indictment, a general description of the same by name, kind, quality, number and ownership, if known, shall be sufficient. If the property be real estate, its general locality in the county, and the name of the owner, occupant or claimant thereof, shall be sufficient description of the same.”


author: DOUGLAS, Judge. ODOM, Judge

text:
    Edward Ross CLARK, Appellant, v. The STATE of Texas, Appellee.
    No. 49910.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.
    Rehearing Denied Oct. 8, 1975.

      James P. Pinstrom, Court-appointed, Dallas, for appellant.
    Henry Wade, Dist. Atty. and Gary Love, Bob Whaley and Jay Ethington, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for carrying a pistol on licensed premises. Punishment was assessed at three years.

Bessie Sylvester, owner and manager of the Anchor Room Bar, testified that a man in the bar was carrying a pistol on November 3,1972. She called the police. Officers Hay and Warren and a civilian observer, James McConnell, responded to the call. McConnell testified that he saw a man pass a gun to appellant in the bar. Appellant left the bar with the pistol. Officer Warren arrested appellant outside the bar. Appellant resisted arrest and attempted to throw the gun on top of a nearby building.

Bessie Sylvester testified that the Anchor Room Bar was licensed to sell alcoholic beverages by the Texas Alcoholic Beverage Commission.

We conclude that the evidence is sufficient to support the conviction.

Appellant contends that the indictment fails to specifically allege that appellant carried a pistol on licensed premises. The indictment, omitting the formal parts, alleges that:

“ . . . Edward Ross Clark hereinafter styled Defendant, on or about the 4 day of November in the year of our Lord One Thousand Nine Hundred and seventy-three in the County and State aforesaid, did unlawfully, carry on and about his person, a pistol, said pistol having been carried in the premises located at 2000 Second Avenue, in the City of Dallas, Texas, said premises being covered by a permit and license issued under the provisions of the Texas Liquor Control Act. ...”

The indictment alleges that appellant carried a pistol and immediately thereafter alleges “said pistol having been carried in the premises located at 2000 Second Avenue, in the City of Dallas, Texas,” and that said premises “being covered” by a permit and license. The indictment, read as a whole, alleges that appellant carried a pistol on licensed premises. The allegations in the indictment were sufficient to apprise appellant of the offense under the statute. McKenzie v. State, 450 S.W.2d 341 (Tex.Cr.App.1970), 408 U.S. 938, 92 S.Ct. 2868, 33 L.Ed.2d 758, on remand, 488 S.W.2d 801, (Tex.Cr.App.1972); American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974); Besson v. State, 515 S.W.2d 112 (Tex.Cr.App.1974); Terry v. State, 471 S.W.2d 848 (Tex.Cr.App.1971).

Appellant next contends that the trial court erred in refusing to submit a requested charge on a lesser included offense of unlawfully carrying a prohibited weapon. Appellant offered no evidence on the issue of the lesser included offense and the testimony of the State’s witnesses was uncontradicted. In McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974), this Court wrote:

“ . . . merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising such issue that the appellant, if guilty, is guilty only of the lesser offense.”

This contention is overruled.

Appellant next contends that the trial court erred in failing to charge the jury that appellant was guilty only if he intended to carry the pistol on a licensed premise. The trial court charged the jury on each element of the offense. No error is shown.

Appellant contends that Article 483, V.A.P.C., is constitutionally overbroad. Article 483 provides that carrying a pistol is a felony if “the offense is committed by a person while in any premises covered by a permit or license issued under the provisions of the Texas Liquor Control Act . .” Article 483 is not limited to premises on which alcoholic beverages are sold to the public since the Texas Liquor Control Act provides for the issuance of licenses and permits to liquor wholesalers, distillers, rectifiers, carriers and brewers. See Article 666-15, Texas Liquor Control Act, Auxiliary Penal Laws. The possible application of Article 483 to premises other than restaurants and bars does not render Article 483 constitutionally overbroad. In Baker v. State, 478 S.W.2d 445 (Tex.Cr.App.1972), this Court wrote:

“A statute is overbroad when it prohibits both activity which is protected by the Constitution of the United States and activity which is not so protected. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). . . .”

See also Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); McMorris v. State, 516 S.W.2d 927 (Tex.Cr.App.1974).

Carrying a pistol in a warehouse, brewery, or distillery is not conduct protected by the Constitution. We hold that Article 483 is not constitutionally overbroad.

Appellant’s last ground of error contends that the prosecution was barred by doctrine of collateral estoppel. Appellant was indicted for unlawfully carrying a pistol on a licensed premise and assault with a prohibited weapon. Both offenses arose out of the same transaction and both offenses were tried simultaneously by agreement of the parties. Appellant was convicted of both offenses.

In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court of the United States wrote:

“ . It [collateral estoppel] means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future lawsuit. . . .” (Emphasis Supplied)

Collateral estoppel is not applicable to the instant case since the same jury found appellant guilty of both offenses. See Jones v. State, 514 S.W.2d 255 (Tex.Cr.App.1974). See also concurring opinion of Justices Brennan, Douglas and Marshall in Ashe v. Swenson, supra.

No error has been shown.

The judgment is affirmed.

ODOM, Judge

(dissenting).

Appellant contends the indictment is insufficient to charge the offense for which he was convicted. The indictment, in material part, charges appellant:

“. . . did unlawfully, carry on and about his person a pistol, said pistol having been carried in the premises located at 2000 Second Avenue, in the City of Dallas, Texas, said premises being covered by a permit and license issued under the provisions of the Texas Liquor Control Act.”

Article 483, V.A.P.C., at the time of the offense charged, provided:

“(a) Any person who shall carry on or about his person, saddle or in his saddlebags, or in his portfolio or purse any pistol, dirk, dagger, slung shot, blackjack, hand chain, night stick, pipe stick, sword cane, spear, knuckles made of any metal or any hard substance, bowie knife, switch blade knife, spring blade knife, throw blade knife, a knife with a blade over five and one half (5V2) inches in length, or any other knife manufactured or sold for the purposes of offense or defense shall be punished by a fine of not less than One Hundred Dollars ($100) nor more than Five Hundred Dollars ($500) or by confinement in jail for not less than one (1) month nor more than one (1) year, except that if the offense is committed by a person while in any premises covered by a permit or license issued under the provisions of the Texas Liquor Control Act or at any dance where the public is invited and alcoholic beverages are openly sold, served, or consumed, he is guilty of a felony and upon conviction shall be punished by imprisonment in the state penitentiary for not less than two (2) years nor more than five (5) years.
“(b) Where the misdemeanor offense is proved under allegations constituting a felony under this Article, the misdemean- or shall be a lesser included offense.”

It will be observed that a violation of this statute is a misdemeanor with a maximum punishment of a five hundred dollar fine or one year in jail unless one of the two aggravating elements be alleged and proven. The aggravating element relied upon by the State in the instant case is that in which “the offense is committed by a person while in any premises covered by a permit or license issued under the provisions of the Texas Liquor Control Act.” (Emphasis added.) Under this statute, the aggravating element must be alleged, not only to secure the greater punishment, but also to plead a felony and demonstrate from the face of the indictment that the district court had jurisdiction of the ease. Standley v. State, 517 S.W.2d 538; Wilson v. State, 520 S.W.2d 377; Article 27.08(4), V.A.C.C.P.

Appellant does not contend that the indictment fails to set forth the enhancement and jurisdictional element “in plain and intelligible words,” as required by Articles 27.09(2) and 21.02(7), Y.A.C.C.P. He contends, instead, that the language in the indictment is insufficient as a matter of law to allege the element relied upon in this prosecution, rendering it insufficient to support the conviction, which also would render it insufficient to support a prosecution in district court under Art. 27.08(4), supra.

Does the indictment in this case allege the aggravating element which the State sought to prove? In Nevarez v. State, 503 S.W.2d 767, an indictment for the same criminal offense here in issue alleged the defendant “did then and there carry on and about his person a pistol while in a premise covered by a permit and license under the Texas Liquor Control Act . . . (Emphasis added.) The opinion in that case pointed out that when an offense may only be committed in a certain type or class of place, it is sufficient to allege that it was committed in such a place. Compare Hodge v. State, Tex.Cr.App., 527 S.W.2d 289 (1975). However, when no such allegation is made, the charging instrument is insufficient. Shane v. State, 513 S.W.2d 579; Adams v. State, 524 S.W.2d 67 (1975).

The only allegation connecting appellant’s conduct to the premises appearing in the indictment upon which appellant was convicted is “said pistol having been carried in the premises . . . ” It does not allege that appellant was on the premises described; it does not allege when or by whom the pistol was carried on the premises; it only alleges that appellant carried a pistol, which pistol had at some time unstated by some person unstated been carried upon the described premises. Looking to the plain and obvious meaning of the charging portion of the indictment, one can only conclude that it fails to allege the aggravating circumstances relied upon for the felony conviction.

In Mesa v. State, 462 S.W.2d 600, this Court quoted the following rule of law from 1 Branch’s Ann.P.C., 2d ed., Sec. 512, p. 495, with approval: “If the-word omitted is essential to the certainty necessary in the description of the offense it cannot be supplied by intendment, and of consequence such omission is fatal to the validity of the indictment.” In the instant case, it appears the language used in the indictment is so at variance with the offense of which appellant was convicted that it must be said several words were omitted. As a consequence of such omission, the indictment fails to allege that the pistol was carried by appellant at the time alleged on the described premises. Although the indictment does allege the included misdemeanor, it does not allege the offense for which appellant stands convicted.

The majority state in conclusory fashion, “The indictment, read as a whole, alleges that appellant carried a pistol on licensed premises.” In doing so they violate the rule quoted above from Mesa v. State, and supply by implication facts that plainly are not alleged in the indictment. If “notice pleading” is the new law of the land, the majority should say so and overrule Mesa v. State, supra.

For insufficiency of the indictment to support the verdict and judgment of conviction, the judgment should be reversed and the cause remanded.

For these reasons I respectfully dissent.

ROBERTS, J., joins in this dissent.

      . The majority also state that the indictment was “sufficient to apprise appellant of the offense under the statute.” As pointed out above, appellant has not raised any notice complaint under Articles 27.09(2) and 21.-02(7).


author: MORRISON, Judge.

text:
    Billy Wayne McCARTER, Appellant, v. The STATE of Texas, Appellee.
    No. 50021.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.

      George R. Milner, Dallas, for appellant.
    Henry Wade, Dist. Atty., Richard W. Wilhelm, Winfield Scott and Gerald Banks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Our prior opinion in this case is withdrawn, and the following substituted in lieu thereof.

The offense is escape by a felon with punishment enhanced under Article 63, V.A.P.C., by two prior non-capital felony convictions; the punishment, life.

We shall first discuss grounds of error two and eight advanced in argument before this Court. Appellant’s second ground of error is the “evidence presented by the State was insufficient to prove that the date of the offense set out in paragraph two of the indictment occurred after the date of the final conviction alleged in paragraph three of the indictment.”

The first paragraph of the indictment charged appellant with the primary offense of escape. The second paragraph alleged appellant was convicted of assault with intent to commit rape on December 6, 1957. The third paragraph of the indictment alleged appellant was convicted on September 2, 1955, of theft of personal property over $50.00.

The prosecution introduced into evidence the indictment, judgment, sentence and docket sheet of the'1955 and the 1957 convictions. A Dallas deputy district clerk identified these documents and testified that no appeal was taken from either conviction. The record reflects that the first prior conviction became final on September 2, 1955, and the second prior conviction became final on December 6, 1957.

Under Article 63, V.A.P.C., it is necessary to show that each succeeding conviction alleged for enhancement was subsequent both in point of time of the commission of the offense and the conviction therefor. Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697. In the case at bar it was necessary to show that the offense alleged in the second prior conviction occurred after September 2, 1955. The indictment for the 1957 conviction alleged rape of S_B_H_, but upon motion of the State was reduced to assault with intent to rape, to which appellant entered a guilty plea.

Deputy Sheriff Baker testified that he had been a Dallas City Police Officer and had investigated a rape case in which the complaining witness was S_B_H_. He stated that the offense involved occurred on October 5, 1957, and that in his investigation he talked with the complaining witness and with appellant’s mother and that appellant was arrested on October 6, 1957. He identified State’s exhibit 33 as a copy of the statement he took from appellant on October 6. The statement was admitted into evidence for purposes of the record only, over objection that it violated appellant’s Fifth and Sixth Amendment rights, and there was no showing it was voluntary. Out of the presence of the jury, Baker acknowledged that the statement was taken after appellant’s arrest and further stated that he remembered this rape case because S_B_H_ had been raped by her father a year before that and he worked on that case also.

The testimony of an arresting officer who has personal knowledge of the date of the commission of the offense for which the accused had been previously convicted has been held sufficient to prove the date of the offense. Burton v. State, Tex.Cr.App., 471 S.W.2d 817; Mackie v. State, Tex.Cr.App., 367 S.W.2d 697; Gomez v. State, Tex.Cr.App., 365 S.W.2d 176. See also Jones v. State, Tex.Cr.App., 482 S.W.2d 634, footnote 2. The evidence is sufficient to establish that the offense alleged in the second prior conviction occurred on October 5, 1957, which is after the first prior conviction became final.

Appellant contends the 1957 confession could not be introduced in his 1974 trial even for the record because it was in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The confession was admitted for the purpose of the record only (not to be exhibited to the jury), and there is no showing that the witness Baker refreshed his memory from the statement or that the statement was read to the jury.

This ground of error is overruled.

Appellant’s eighth ground of error charges that “there is a fatal variance between the proof adduced and the allegations contained in the indictment.” This contention is predicated upon the fact that the indictment alleged that appellant escaped after being “convicted of a felony”, whereas the proof showed that the conviction was not final, but on appeal to this Court at the time of the escape. Appellant relies on Burnett v. State, 514 S.W.2d 939.

The statute in question, Article 353b, Sec. 1(b), V.A.P.C. (1925), defines prisoner as “any person who has been formally charged with or convicted of a felony.” In Burnett v. State, supra, it was contended that a reversal was required because of a fatal variance between the allegation that the defendant escaped “while confined having been formally charged with a felony” and the proof that at the time of escape he had been convicted by a jury and was awaiting the decision on his appeal. In footnote one of Burnett, the issue of whether the categories of “formally charged with” and “convicted of” were mutually exclusive was expressly reserved. The sole issue there was whether “formally charged with” was an appropriate description of the defendant’s status. The Court in Burnett concluded:

“The proof shows that on the day of his escape appellant had been formally-charged with a felony by indictment, had been convicted for that felony, was sentenced, had given notice of appeal, and was confined awaiting the mandate of this Court in answer to his appeal. The indictment alleged that appellant was confined (. . . having been formally charged with a felony,’ on the day of his escape. There is no variance.” (Emphasis added.)

Footnote six in Burnett suggests that even after final conviction it may not be inaccurate to describe the individual as formally charged with the crime.

The assumption inherent in appellant’s contention and in the State’s request that Burnett be overruled is that “formally charged” and “convicted” are mutually exclusive. Burnett expressly withheld ruling on that issue, but suggested in the above quoted paragraph and in footnote six that they are not mutually exclusive, and that an individual of the status of appellant and of Burnett at the times of their escapes may be accurately described by allegation as being “formally charged” or as being “convicted”, both such descriptions being appropriate to that status. The issue in each case is whether the description of the status is accurate or whether there is a fatal variance. Burnett does not hold that “convicted of” would be an inaccurate description, but only that “formally charged with” was accurate.

We find no variance between an indictment which alleges the accused escaped after being convicted of a felony and proof that the escape occurred after verdict or after affirmance by this Court.

This discussion also disposes of appellant’s grounds of error four, nine and ten, except that in his fourth ground appellant contends that the indictment was uncertain because it failed to allege the particular felony offense under which he had been convicted. The indictment tracks the statute and is in the form suggested by Willson’s Criminal Forms, Volume 7, Sec. 398, p. 117. This form was approved by this Court in Cline v. State, Tex.Cr.App., 463 S.W.2d 441.

Appellant’s first ground of error relates to the charge on sanity. Appellant contends the court should have charged pursuant to his written request on insanity as it'is defined under the new penal code, V.T.C.A., Penal Code, Sec. 8.01, rather than under Article 34, V.A.P.C., the old code. The offense in question occurred before the enactment of the new code. The trial took place after the effective date of the new code.

Citing Odenthal v. State, 106 Tex.Cr.R. 1, 290 S.W. 743, appellant submits that since the Legislature enacted and broadened the definition of insanity, appellant is entitled to benefit from that change.

V.T.C.A., Penal Code, Sec. 6(a), the savings provision of the new penal code, however, appears to answer appellant’s contention adversely. It provides:

“ . . . [T]his Act applies only to offenses committed on or after its effective date, and a criminal action for an offense committed before this Act’s effective date is governed by the law existing before the effective date, which law continued in effect for this purpose, as if this Act were not in force.” (Emphasis added.)

Clearly, “the law” relating to the defense of insanity was fixed by Sec. 6(a), supra, as the one in effect at the time of the commission of the offense. See Pesch v. State, Tex.Cr.App., 524 S.W.2d 299.

In People v. De Simone, 67 Ill.App.2d 249, 214 N.E.2d 305, the appellate court of Illinois concluded that where a new test of insanity superseded an old one, the old test applied if the offense occurred before the enactment of the new insanity test.

Appellant’s reliance upon Odenthal v. State, supra, is misplaced. In that case at the time of the commission of the offense the exclusionary rule had not been adopted in Texas, and the illegality of a search did not render inadmissible the fruits of such search. After the commission of the offense and prior to trial, the exclusionary rule was adopted. This Court on rehearing held that the change in the law was procedural and therefore the defendant could benefit from the change in the law. The change in the law of insanity was substantive, and therefore Odenthal is not controlling.

The third ground of error is that the court erred in declining to grant a postponement to appellant under Art. 29.13, V.A.C.C.P. It appears that appellant had been previously tried and prior to this trial the appellant applied to the court for a copy of the previous trial testimony. On the morning this case went to trial, appellant’s attorney moved for a 24 hour recess in order to study such transcript. It is apparent from the testimony of the appellant’s appointed attorney and the record as a whole that he had taken no steps to see that the court ruled on his motion for production of the testimony until the day of the trial. A transcript of the testimony was furnished appellant at the time his motion was called to the court’s attention at the commencement of trial.

By the terms of Article 29.13, supra (Continuance After Trial is Begun), it is incumbent upon the accused to show that an unexpected occurrence had arisen which no reasonable diligence could have anticipated. In Johnson v. State, Tex.Cr.App., 504 S.W.2d 493, we held that it was incumbent upon an accused to call his request for a transcript of a former trial to the court’s attention prior to the day of trial. Further, in the case at bar, appellant’s attorney had participated in the prior trial.

The fact that the representatives of the State may have secured a copy of the transcript before appellant will not excuse appellant’s apparent lack of diligence in securing the same.

This ground of error is overruled.

Ground of error five is that the court erred in failing to grant his motion for continuance because he had not received a copy of the indictment against him until the day of the trial. At the conclusion of a hearing on the question, the court filed his findings of fact and conclusions of law in which he found that the appellant had been served with a copy of the indictment long prior to trial.

The record supports the court’s findings, and we find no abuse of discretion.

Ground of error six complains of the refusal of the court to grant a mistrial when the prosecutor asked the appellant on cross-examination the following question, which appellant contends alludes to an extraneous offense:

“And so the robbery case on McCarter, you say is false on that point?”

The question was never answered; appellant’s objection was sustained and the jury were instructed not to consider the question.

In Hartman v. State, Tex.Cr.App., 507 S.W.2d 553, we said:

“This Court will not reverse a conviction solely because an improper question was propounded. To cause reversal, the question must be obviously harmful. Mistrot v. State, 471 S.W.2d 831 (Tex.Cr.App.1971); Sensabaugh v. State, 426 S.W.2d 224 (Tex.Cr.App.1968).”

Further, a prompt instruction by the trial court to disregard an alleged extraneous offense is normally sufficient to cure error. Pearson v. State, Tex.Cr.App., 500 S.W.2d 829.

Ground of error seven relates to a question asked appellant on cross-exaxnination about his knowledge of the parole law. The belated general objection was sustained, and the jury were instructed not to consider the question. We do not find that the asking of the question, especially in view of the instruction, constitutes reversible error. See Hartman v. State, supra, and the cases cited therein.

This ground of error is overruled.

Appellant’s last ground of error relates to the following statement made by the prosecutor during argument at the punishment phase of the trial, which appellant contends was a reference to his failure to testify:

“What evidence did the defense bring you to prove, if they could, that he was not the same person in these other two convictions . . . ”

Appellant’s objection was sustained, the jury instructed to disregard the remark, and appellant’s motion for mistrial denied.

To require reversal, an alleged reference to the accused’s failure to testify must necessarily allude to the defendant’s failure to testify and not merely his failure to produce evidence from others. Overstreet v. State, Tex.Cr.App., 470 S.W.2d 653; Ellis v. State, Tex.Cr.App., 468 S.W.2d 406.

Further, the record reflects that appellant had testified at the guilt-innocence phase of the trial and admitted he had been convicted of the two offenses in question. Any comment regarding his failure to testify about these convictions at the punishment phase, under these circumstances, would therefore be harmless.

Finding no reversible error, the judgment is affirmed, and appellant’s motion for rehearing is overruled.

      . The word “convicted” can have several meanings. Article 42.12, V.A.C.C.P., speaks of releasing on probation of “convicted” defendants. Clearly this statute means “after verdict”, whereas in Arts. 62 and 63, V.A. P.C., the word “convicted” means a final conviction. For another interpretation of the word, see Ex parte Giles, Tex.Cr.App., 502 S.W.2d 774, 784.

      . In essence, the old code provides for determination of insanity under the M’Naghten Rule, which is whether the accused knew the difference between right and wrong. The new definition makes it an affirmative defense that an accused either did not know that his conduct was wrong or, knowing that his conduct was wrong, was unable to conform his conduct to the requirements of the law.


author: BROWN, Commissioner.

text:
    Karl ASHLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 50420.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1975.

      Brad Reid, Abilene, for appellant.
    Ed Paynter, Dist. Atty., John W. Weeks, Asst. Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

The conviction is for false imprisonment; the punishment, enhanced under Sec. 12.-42(d), V.T.C.A., Penal Code, life imprisonment.

The complainant was a student at Hardin-Simmons College who worked part-time in the afternoons for an advertising company in Abilene. On the afternoon of September 20, 1974, as she was leaving work, her employer asked her to drop some advertising material at a place of business en route to the college. As complainant parked her car in front of the place of business, she observed appellant standing on the sidewalk outside the building with his shoe off rubbing his foot. She asked him if he was having trouble and he answered that his foot hurt and he had to walk all the way to Hardin-Simmons. She stated that she was going to the college as soon as she made her delivery and would give him a ride. As she left the store appellant entered the car with her. She inquired if he was a Hardin-Simmons student and he replied that he was a preacher who had received his religious degree in California and that he only resided across the street from the Hardin-Simmons campus. Appellant stated that he had several pets including one very cute poodle which he would give complainant if she liked it. When they arrived at appellant’s garage apartment appellant went to get the poodle and complainant accompanied him to the door but declined to enter. Appellant placed a chair just inside the door and she stepped in and sat in the chair. After a few minutes of conversation, appellant suggested that it was getting chilly and closed and locked the front door, and at the same time struck the seated complainant in the mouth with his fist. He then stabbed her in the neck with an ice pick and told her he would kill her if she screamed. When she refused to lie on the floor at his command he stabbed her on the other side of the neck. She still refused to get on the floor and he hit her in the eye and on the side of the face. He also stabbed her on the right thigh. When she continued to refuse to have intercourse with him, appellant promised her that if she would expose her privates he would masturbate and then release her. He kept his promise. Complainant then went to the hospital where the police were called and appellant was arrested in his apartment shortly thereafter.

The sufficiency of the evidence is not challenged.

Appellant initially contends that records of a prior felony conviction were improperly admitted. Appellant argues that the records are not certified.

Art. 3731a, V.A.C.S., provides for the introduction of such documents as business records. Sec. 4 of that statute details the requirements for the authorization of these records.

“Such writings may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy. . the attestation shall be accompanied with a certificate that the attesting officer has the legal custody of such writing.” Sec. 4, Art. 3731a, V.A.C.S.

State’s Exhibit No. 12, the admission of which appellant contests, consists of several instruments. The first is executed by the Secretary of the State of California through his deputy and certifies that R. K. Procunier is the Director of the Department of Corrections and is in charge of the records for that department, and that the attestation of R. K. Procunier by Madelon Stuermann is in due form and Madelon Stuermann is the proper officer to make such an attestation. The second is a memo from R. K. Procunier to Madelon Stuer-mann, authorizing Madelon Stuermann to sign certificates of criminal records on behalf of R. K. Procunier. The third is a certification by Madelon Stuermann that the criminal record of appellant is in her custody, and that the attached document is a true and correct copy of the said original in her custody. The remaining instruments comprise appellant’s criminal record in the State of California. Further, Officer Chronister of the Abilene Police Department testified that he had twenty years experience in fingerprint identification and that the fingerprints included in State’s Exhibit No. 12 were those of the appellant.

We hold that appellant’s criminal record in California was properly admitted and overrule his first contention. Vessels v. State, Tex.Cr.App., 432 S.W.2d 108. Emerson v. State, Tex.Cr.App., 476 S.W.2d 686.

Appellant’s second ground of error is that the court erred in using. appellant’s prior conviction in California for enhancement purposes because the same had not become final prior to appellant’s subsequent conviction.

Sec. 12.42(d), V.T.C.A., provides that:

“If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.”

State’s Exhibit No. 12, which contained appellant’s criminal record for California, reflects that appellant was convicted of “robbery in the second degree” on March 5,1963, that on September 8,1970, his term was fixed at ten years with release on parole, that on October 24, 1970, he was released on parole, and that on August 6, 1971, his parole was suspended. State’s Exhibit No. 10 reflects that on January 10, 1973, appellant was convicted of the offense of sodomy in Taylor County. It is appellant’s argument that since it cannot be determined whether or not appellant’s second conviction occurred within the period of his parole, it cannot be a final conviction for the purposes of enhancement.

The sentence to be served, either actually confined, or on probation or parole, has no effect on the time at which the conviction becomes final. Nealy v. State, Tex.Cr.App., 500 S.W.2d 122. Further, when a conviction appears to be final on its face, as here, the burden of showing the same to be not final is on the defendant. Simpson v. State, Tex.Cr.App., 486 S.W.2d 807; Miller v. State, Tex.Cr.App., 472 S.W.2d 269.

No error is shown.

In his third ground of error, appellant complains of the admission of testimony as to the victim’s mental state following the offense.

The testimony complained of is as follows:

“Q What was her mental state at that time from your point of view, your observation point?
“MR. LINDSEY: I object to that, Your Honor. I don’t think that has any bearing on this particular case.
“THE COURT: I will overrule the objection. She may answer.
“MR. LINDSEY: Note our exception.
“MR. PAYNTER:
“Q You may answer.
“THE WITNESS:
“A I would say she was very upset.”

The witness was a friend of the victim’s who lived in the same dorm as the victim at Hardin-Simmons University, and who was called to the victim’s room shortly after the offense. It is appellant’s argument that the complained of testimony was in no way relevant to whether or not an offense had occurred.

This Court recently held that it was improper for a trial court to prohibit testimony as to whether or not the victim of an assault “appeared angry.” Hays v. State, Tex.Cr.App., 480 S.W.2d 635. We have always permitted lay opinions as to the attitude or emotional state of the accused as well as others. Ross v. State, 153 Tex.Cr.R. 312, 220 S.W.2d 137; Miller v. State, 145 Tex.Cr.R. 419, 168 S.W.2d 864; Windham v. State, 93 Tex.Cr.R. 477, 248 S.W. 51. See also McCormick and Ray, Texas Practice, Vol. 2, Evidence, 2nd Ed., Sec. 1397. Although, as appellant contends, such testimony is seldom direct evidence of the commission of a crime, it is consistently indicative of the demeanor of the persons involved, an invaluable aid in understanding the circumstances of the event. No error is shown.

In his fourth ground of error, appellant complains of the admission of testimony relating to the physical strength and boxing ability of the appellant. Bill Vick, Executive Director of the Boys Club of Abilene, testified that he knew appellant and that appellant was “very strong,” and that appellant was licensed in California as a boxing trainer.

The salient fact in a case of false imprisonment is the fact of restraint. The power or ability to so restrain is of necessity pertinent to the main injury. We are not faced with the situation where an accused is confronted with evidence of other criminal acts, or of his being a criminal generally. Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97. Evidence of the ability to commit an act is by no means indicative of a proclivity to commit that act. If the offense were burglary, who would question the admissibility of burglar’s tools found in the possession of the accused? See 22A C.J.S. Criminal Law §§ 610-611.

No error is shown.

In his fifth ground of error, appellant complains of the prosecutor’s asking the following question of Bill Vick, appellant’s employer at one time: “Prior to going to work for you, did you do any checking him out or anything?”

Appellant’s objection to this question was sustained, an instruction to disregard was given, but his request for a mistrial was denied.

The mere asking of a question will not call for reversal unless the same results in obvious harm to the defendant. Fuller v. State, Tex.Cr.App., 501 S.W.2d 112; Sensabaugh v. State, Tex.Cr.App., 426 S.W.2d 224. We note further that the matter was not pursued by the prosecutor, Wood v. State, Tex.Cr.App., 511 S.W.2d 37, and that ordinarily an instruction to the jury to disregard will cure any error. Guerrero v. State, Tex.Cr.App., 507 S.W.2d 765. The question here involved was not such a direct reference to conduct or character so prejudicial to the defendant as to require reversal in light of the precautionary steps taken by the trial judge.

No error is shown.

Finally, appellant complains of the following argument by the prosecutor:

“Now, I suppose this defendant would love for this Jury to disregard the confinement, disregard the lack of consent, disregard the exposure to this risk of bodily injury, and find him guilty of one of these lesser offenses. He will probably come and pump your hands and thank you and grin all the way to the jail, as he goes over and checks out.
“MR. LINDSEY: I would object to that, Your Honor. That is highly prejudicial, and there is no testimony: got to go check out.
“THE COURT: All right.
“MR. LINDSEY: That is lucicrous.
“THE COURT: Sustain the objection.
“MR. LINDSEY: I would ask for a mistrial on that, too.
“THE COURT: Overrule the motion for a mistrial.”

The prosecutor’s argument was improper, there being nothing in the record to support such an assertion. We do not feel, however, that the argument was so prejudicial that an instruction to the jury to disregard could not have cured any such error. Where an instruction could have rendered the error harmless, this Court is not inclined to reverse where the instruction is not requested. Duran v. State, Tex.Cr.App., 505 S.W.2d 863; Blassingame v. State, Tex.Cr.App., 477 S.W.2d 600.

No error is shown.

The judgment is affirmed.

Opinion approved by the Court.


author: ROBERTS, Judge.

text:
    Johnny Earl MYERS, Appellant, v. The STATE of Texas, Appellee.
    No. 50473.
    Court of Criminal Appeals of Texas.
    Sept. 23, 1975.

      Ron B. Johnson, Waxahachie, for appellant.
    Gene Knize, County Atty., David Dewey Bass, Asst. County Atty., Waxahachie, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

By per curiam order of July 23,1975, this appeal was dismissed for failure to give timely notice of appeal. Following the filing of supplemental transcripts, however, the appeal has now been re-instated.

This is an appeal from a conviction for theft of property of the value of over $200. The punishment, enhanced by a prior conviction under Section 12.42(a), Y.T.C.A. Penal Code, was assessed at eight years.

In his first ground of error, appellant complains of the trial court’s action in overruling his motion that he be released from custody on October 20,1974, one day before trial in this cause commenced. Appellant grounded his motion upon an order of the United States District Court for the Northern District of Texas, dated August 21, 1974, and ordering appellant’s release from custody if not brought to trial within 60 days thereof. Both sides agree that the sixtieth day fell on Sunday, October 20, 1974. Trial on the merits began the following day.

Since the federal suit filed by appellant was in the nature of a civil action, Rule 6(a) of the Federal Rules of Civil Procedure dictates the computation of time under the federal court order as follows:

“In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of the court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.” (Emphasis supplied)

Rule 45(a) of the Federal Rules of Criminal Procedure provides for the same method of computing time in criminal cases. The same rule applies in Texas. See Barbee v. State, 432 S.W.2d 78 (Tex.Cr.App.1968), on motion for rehearing.

Since the sixtieth day following the federal court’s order fell on a Sunday, the State was in compliance with the order by bringing appellant to trial on the following Monday. Appellant’s first ground of error is overruled.

Appellant next contends that the court erred in overruling his motion for a mistrial based on the prosecutor’s statement during the voir dire examination of the prospective jurors that “the defendant has just as much a right to subpoena any witnesses and tell his story to you as the State does.” Appellant contends that this statement was a comment on his failure to testify in violation of Art. 38.08, V.A.C.C.P.

In order to offend the statute, the implication that the language used has reference to the accused’s failure to testify must be a necessary one. Ramos v. State, 419 S.W.2d 359 (Tex.Cr.App.1967). There was no indication at the voir dire examination of the prospective jurors that appellant would not take the stand at the trial on the merits. The prosecutor’s statement was not of such a character that the jury would necessarily have taken it to be a comment on the subsequent failure of the appellant to testify. McCary v. State, 477 S.W.2d 624 (Tex.Cr.App.1972). Much more direct references to an accused’s failure to testify were not reversible error in Hill v. State, 480 S.W.2d 670 (Tex.Cr.App.1972). Appellant’s second ground of error is overruled.

Appellant also complains that the prospective jurors were qualified on a range of punishment from two to twenty years during their voir dire examination. He contends that this qualification indirectly informed the jury of a prior conviction by which the State intended to enhance appellant’s punishment. The presumption that citizens are presumed to know the law, and therefore to know of the possible punishment if appellant’s conviction is enhanced, is essential to appellant’s contention. Not only is such a presumption highly unlikely in this case, but appellant’s reliance thereon is completely misplaced. The presumption relied on is actually a misstatement of Sec. 8.03, V.T.C.A., Penal Code, which provides as follows:

“(a) It is no defense to prosecution that the actor was ignorant of the provisions of law after the law has taken effect.”

See also McCormick and Ray, Texas Law of Evidence, 2nd Ed., Sec. 52, p. 60, wherein it is stated:

“Perhaps the most common illustration is the statement that all persons are presumed to know the law. This is merely an artificial way of stating the substantive principle that ignorance of the law is no excuse.”

The prosecutor’s statement to the prospective jurors did not have the effect of informing them of appellant’s prior conviction. This ground of error is without merit.

Appellant lastly contends that the trial court erred in failing to grant him a hearing on his motion for new trial based on newly-discovered evidence. He claims that he was prevented from obtaining an affidavit from the witness Robert James Walker because the latter was under psychiatric care. The witness Walker was called by the defense but on cross-examination he contradicted his earlier testimony and connected appellant with the theft of the automobile.

In order for a new trial to be granted on the basis of newly-discovered evidence, it must be shown that such evidence was in fact newly-discovered, that it was material, that the failure to discover the evidence sooner was not due to lack of diligence on the part of the appellant, that the new evidence was probably true, and that such evidence would probably produce a different result at another trial. Williams v. State, 504 S.W.2d 477 (Tex.Cr.App.1974); Art. 40.03(6), V.A.C.C.P. The newly-discovered evidence in this case, however, was not material and could only have been used to impeach Walker. The rule is stated in 1 Branch’s Ann. Penal Code of Texas, 2nd Ed., Sec. 224, p. 257 (1956) as follows:

“Newly-discovered testimony which would not be admissible as original evidence, but which could only be used to discredit or impeach the testimony of a witness who had testified on the trial of the case, is not ordinarily ground for a new trial, and the discretion of the trial court in refusing a new trial sought to obtain such testimony will not be revised on appeal.”

Appellant would not have been entitled to a new trial on the basis of this newly-discovered evidence, and therefore the court did not err in refusing him a hearing on his motion. Ayala v. State, 511 S.W.2d 284 (Tex.Cr.App.1974).

Appellant’s fourth ground of error is overruled and the judgment is affirmed.