author: DOUGLAS, Judge.

text:
    Robert K. SWISHER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50099.
    Court of Criminal Appeals of Texas.
    May 26, 1976.
    Rehearing Denied June 16, 1976.
    Certiorari Denied Jan. 10, 1977.
    See 97 S.Ct. 734.

      Joseph (Sib) Abraham, Jr., El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., and John P. Bradford, Asst. Dist. Atty., El Paso, 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 the possession of marihuana. Punishment was assessed by the jury at seven years.

Appellant contends that “the trial court erred in not suppressing the marihuana seized in this case because the search and arrest was not based upon probable cause as required by the Fourth Amendment of the United States Constitution.”

Napoleon Herrera, a Department of Public Safety intelligence agent, testified that he received information from an informant that Robert Swisher was going to pick up a load of marihuana in the Fabens-Tornillo area near El Paso on the evening of October 12th or 13th, 1970. The informant also told Herrera that Swisher would be driving a white Rambler station wagon or a white pickup. Herrera had not received any prior information from the informant and the informant did not tell Herrera how he obtained his information.

Herrera drove to the intersection of Interstate 10 and Farm-to-Market Road 793. Herrera saw a white Rambler station wagon turn off Interstate 10 and onto Farm-to-Market Road 793 and proceed south. Herrera followed the car toward the Mexican border. Herrera testified that the station wagon was empty. Herrera stopped at the intersection of State Road 20 and Farm-to-Market Road 793 in the Fabens-Tornillo area. Approximately an hour later the station wagon passed Herrera traveling north. Herrera followed the car until another Department of Public Safety patrol car arrived. Herrera then pulled alongside the station wagon and shined a flashlight into the rear of the vehicle. Herrera testified that the back of the station wagon was full of brown packages wrapped in cellophane. Herrera then requested the patrol car to stop the station wagon. The Department of Public Safety officers stopped the station wagon and arrested appellant. Herrera opened a few of the packages in the rear of the station wagon. The packages contained marihuana.

The underlying circumstances which led to the informant’s conclusion of guilt were not shown. There was no showing that the informant was credible and reliable. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Jones v. State, Tex.Cr.App., 522 S.W.2d 930 (Tex.Cr.App.1975). The fact that an informant’s tip does not satisfy the requirements of probable cause will not prevent an officer from investigating suspected criminal activity. In George v. State, 509 S.W.2d 347 (Tex.Cr.App.1974), this Court wrote:

“. . . Officers must have come reasonable leeway to investigate into criminal activity absent probable cause for an arrest or search.”

See also Hernandez v. State, 523 S.W.2d 410 (Tex.Cr.App.1975); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.1974).

Officer Herrera’s surveillance of appellant’s automobile was proper, and, under the circumstances, Officer Herrera would have been remiss in his duty had he not investigated further after receiving the informant’s tip. Cf. Tores v. State, 518 S.W.2d 378 (Tex.Cr.App.1975).

During his surveillance of appellant’s automobile, Officer Herrera pulled up alongside appellant’s car and observed numerous brown packages wrapped in cellophane in the rear of appellant’s car. Officer Herrera testified:

“ ... I pulled up along side, observed the packages that appeared to me to be the same type packages in which marihuana is normally wrapped in.
“Q. What type of packages were they?
“A. These were packages wrapped in different color cellophane and brown paper.
“Q. Could you tell if there were numerous packages or how many packages there were?
“A. The back of the stationwagon was completely full.
“Q. Were these covered in any manner?
“A. No sir they were not covered, actually exposed.
“Q. After you observed that — let me ask you this Agent Herrera — had you seen any other items other than marihuana that had been wrapped in the same manner before?
“A. Not that I recall. I am sure there are some items that could be wrapped that way, but I don’t know what they would be.”

A police officer is expected to utilize his expertise and experience in assessing probable cause. Herrera’s conclusion that the packages contained marihuana was reasonable in light of his prior experience. Thus, when Officer Herrera saw the packages of marihuana in the rear of appellant’s station wagon he had probable cause to arrest appellant and search the automobile. See Hernandez v. State, supra; Onfre v. State, 474 S.W.2d 699 (Tex.Cr.App.1972). Appellant’s third ground of error is overruled.

Appellant also contends that he was denied a speedy trial. In Davison v. State, 510 S.W.2d 316 (Tex.Cr.App.1974), this Court wrote:

“The test for ascertaining whether the right to speedy trial has been denied is a balancing test based upon at least four criteria: (1) the length of delay; (2) the reason for the delay; (3) the accused’s assertion of his right; and (4) the prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Pete v. State, 501 S.W.2d 683 (Tex.Cr.App.1973); McKinney v. State, 491 S.W.2d 404 (Tex.Cr.App.1973). During its present term, the Supreme Court of the United States has emphasized that none of these four criteria have ‘talis-manic qualities,’ and, in particular, that a showing of prejudice is not sine qua non to demonstrating a denial of the right of speedy trial. Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973).”

He was arrested on October 12, 1970, and indicted on November 19, 1970. His bond was forfeited on December 4, 1970. The trial was held on June 17, 1974.

Three years and eight months elapsed from the date of arrest to trial. Such a delay is not, per se, a deprivation of a right to a speedy trial, although it is a fact which calls for further consideration of appellant’s claim. Archie v. State, 511 S.W.2d 942 (Tex.Cr.App.1974).

Appellant does not allege and the record does not reflect any deliberate effort by the State to delay the trial. He testified that an examining trial was conducted some time between the date of the arrest and the date the indictment was returned. The magistrate who conducted the examining trial concluded that there was no probable cause for appellant’s arrest. He related that he believed that the charges against him had been dismissed and that he did not know that an indictment had been returned against him. He moved to New Mexico after the examining trial and lived there until he was arrested on a fugitive warrant in January, 1974 and returned to El Paso in March of 1974. He was tried on June 17, 1974.

On March 28, 1974, appellant signed an “Agreed Order of Continuance” which set the trial date for June 17, 1974. The motion for a speedy trial was filed on June 11, 1974. He was tried six days after his request for a speedy trial.

Appellant claims he was prejudiced by the delay in his trial because he was unable to locate two witnesses and Officer Herrera’s testimony was “dimmed by the passage of time.” He testified at a pretrial hearing that Henry Garcia and Clay Melton asked appellant to deliver a load of alfalfa to some “hippies” and that he agreed to deliver the alfalfa for a fee of $150.00. Appellant also stated that he attempted to locate the witnesses by going to the house where he obtained the marihuana and asking the female resident, who did not speak English, “Is Henry here?” He also checked the telephone directory for the address of one of the witnesses.

“When non-availability of witnesses is the basis of the alleged prejudice, an appellant must show that the witnesses were unavailable at the time he was tried; that their testimony may be relevant and material to his defense, and that due diligence was exercised in an attempt to locate such witnesses at the time he was tried.” McCarty v. State, 498 S.W.2d 212 (Tex.Cr.App.1973). See also Peak v. State, 522 S.W.2d 907 (Tex.Cr.App.1975).

Applying the balancing test of Barker v. Wingo, supra, we conclude that appellant was not denied his right to a speedy trial. Appellant’s first ground of error is overruled.

Appellant in his second ground of error contends that “the trial court erred in not accepting the State’s motion to dismiss because it was a valid part of a plea bargain process estopping the State of Texas from prosecuting this case.”

Appellant’s attorney testified that an assistant district attorney agreed to dismiss the charges against appellant. After the trial court refused to dismiss, the State then withdrew the motion to dismiss and proceeded to trial. Article 32.02, V.A.C. C.P., provides:

“The attorney representing the State may, by permission of the court, dismiss a criminal action at any time upon filing a written statement with the papers in the case setting out his reasons for such dismissal, which shall be incorporated in the judgment of dismissal. No case shall be dismissed without the consent of the presiding judge.”

Article 32.02, supra, expressly provides that no case shall be dismissed without the consent of the presiding judge. Thus, the trial court was not bound by the prosecutor’s motion to dismiss the indictment. Appellant’s second ground of error is overruled.

The judgment is affirmed.

ROBERTS, J., dissents on the ground that the search was illegal.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    David RODRIQUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 50659.
    Court of Criminal Appeals of Texas.
    July 7, 1976.
    Rehearing Denied Jan. 5, 1977.

      Juarez & Salinas, Lubbock, for appellant.
    Lealand W. Greene, Dist. Atty., Snyder, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for deadly assault upon a peace officer (V.T. C.A. Penal Code, Sec. 22.03). Punishment was assessed at thirty-five years.

Appellant contends the trial court erred in refusing to charge the jury on self-defense after timely objection was made.

It is well established that if the issue is raised by the evidence the accused is entitled to have it submitted to the jury. The issue before this Court is not the truth of appellant’s testimony; that is for the jury. The issue before this Court is whether, if the testimony is believed, a case of self-defense has been made. Appellant’s testimony supporting submission of the issue may be stated briefly.

Appellant and others were passengers in a car driven by Luis Fuentez on the evening of June 8, 1974, when they were stopped by Snyder Police Department Officers Cullar and Lee for defective taillights. Appellant testified that after he got out of the car he saw Officer Lee push Luis Fuentez and saw the officer reach for his pistol. Being afraid the officer was going to shoot Fuen-tez and himself, he proceeded to disarm Lee. He testified that he did not shoot at Lee but moved out into the middle of the street and that Officer Cullar fired at him and only after he was wounded by the second shot did he start to shoot.

These questions are raised: If a person is stopped for a traffic violation and, upon stepping from his car, the officer pushes him and reaches for a pistol, is a passenger fearing for his own life and that of the driver justified in defending himself by attempting to disarm the officer? If such a threatened person succeeds in disarming the officer, and another officer fires at him and wounds him, is he justified in firing back in self-defense?

Self-defense is codified in Chapter 9 of the Penal Code, which in Sec. 9.31 provides in part:

“(c) The use of force to resist an arrest or search is justified:
“(1) if, before the actor offers any resistance, the peace officer . . . uses or attempts to use greater force than necessary to make the arrest or search; and
“(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s . . . use or attempted use of greater force than necessary.
“(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34 of this code.”

V.T.C.A. Penal Code, Sec. 9.32 provides in part:

“A person is justified in using deadly force against another:
“(1) if he would be justified in using force against the other under Section 9.31 of this code;
“(2) if a reasonable person in the actor’s situation would not have retreated; and
“(3) when and to the degree he reasonably believes the deadly force is immediately necessary:
“(A) to protect himself against the other’s use or attempted use of unlawful deadly force; or
“(B) ...”

Appellant testified that before he offered any resistance Officer Lee pushed Fuentez and reached for his pistol, which caused him to fear he would be shot. On the subsequent use of deadly force, appellant testified that after disarming Officer Lee he moved to the middle of the street and did not fire until after being hit by the second shot fired by Officer Cullar. Whether the events actually happened that way in this case was a question for the jury, but the jury was denied the opportunity to decide those facts because a charge on self-defense was not given. Whether the officer used greater force than necessary, and whether appellant’s beliefs, fears and actions were reasonable as required by statute, were also fact issues for the jury, but the jury was also deprived of the opportunity to decide those issues because of the failure to instruct the jury on self-defense.

We are of the opinion that appellant’s testimony raised the issue of self-defense and that the trial court erred in overruling appellant’s objection to the charge. We reiterate that the truth of appellant’s testimony is not at issue here and we express no opinion on who was telling the truth. The issue is whether the jury should have been instructed to decide those facts under the law on self-defense. We hold the trial court erred in refusing to charge the jury on the law of self-defense.

The judgment is reversed and the cause remanded.

ONION, P. J., and DOUGLAS, J., concur in the results.


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

text:
    Fred Thomas HANEY, Appellant, v. The STATE of Texas, Appellee.
    No. 51733.
    Court of Criminal Appeals of Texas.
    July 14, 1976.
    Dissenting Opinion on State’s Motion for Rehearing Dec. 22, 1976.

      D. Channing Bradshaw and Earl B. Cass, Jr., Pasadena, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Charles Cottingham, Asst. Dist. At-tys., Houston, and Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of unlawfully dispensing phen-metrazine by a practitioner. Punishment was assessed by the court following a guilty verdict at ten (10) years, probated.

The appellant, a licensed physician, was charged in five indictments with unlawfully dispensing phenmetrazine to Thomas Garner, shown to be an undercover agent, on various dates. The five indictments were consolidated upon appellant’s motion and were jointly tried. The appellant was acquitted in four of the cases.

In the appeal from the conviction obtained appellant, among other things, contends the court erred in failing to quash the indictment and challenges the sufficiency of the evidence to sustain the conviction contending the evidence does not show he committed an offense.

The indictment in question alleged, omitting the formal parts, that the appellant on or about February 12, 1974, did “intentionally dispense a controlled substance; to-wit, phenmetrazine, to Thomas Garner, and the said Fred Thomas Haney, M.D. did not dispense said controlled substance to the said Thomas Garner in the course of professional practice, in that no medical examination was given to said Thomas Garner before dispensing the said controlled substance.”

Section 3.01(b) of the Texas Controlled Substances Act (Article 4476-15, Vernon’s Ann.C.S.) provides:

“Persons registered by the director under this Act to manufacture, distribute, dispense, analyze, or conduct research with controlled substances may possess, manufacture, distribute, dispense, analyze, or conduct research with those substances to the extent authorized by their registration and in conformity with the other provisions of this Act.” (Emphasis Supplied)

Section 3.03(b)(1) of the same Act reads:

“The director shall register an applicant to dispense any controlled substances in Schedules II through V or to conduct research with controlled substances in Schedules II through V, if:
“(1) the applicant is a practitioner licensed under the laws of this state.” (Emphasis Supplied)

Section 1.02(24) reads in part:

“(24) ‘Practitioner’ means:
“(A) a physician, dentist, veterinarian, scientific investigator, or other person licensed, registered, or otherwise permitted to distribute, dispense, analyze or conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state; or
“(B) . . . (Emphasis Supplied)

Sections 1.02(10), (11), (26) and (5) of the same Act read:

“(10) ‘Dispense’ means to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner (in the course of professional practice or research), including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for such delivery.
“(11) ‘Dispenser’ means a person who dispenses.
“(26) ‘Ultimate user’ means a person who has lawfully obtained and possesses a controlled substance for his own use or for the use of a member of his household or for administering to an animal owned by him or by a member of his household.
“(5) ‘Controlled substance’ means a drug, substance, or immediate precursor listed in Schedules I through V and Penalty Groups 1 through 4 of this Act.”

Section 4.08 of the Texas Controlled Substances Act provides:

“(a) It is unlawful for any person:
“(1) who is a practitioner knowingly or intentionally to distribute or dispense a controlled substance in violation of Section 3.08;
“(2) who is a registrant knowingly or intentionally to manufacture a controlled substance not authorized by his registration or to distribute or dispense a controlled substance not authorized by his registration to another registrant or other person;
“(3) to refuse or fail to make, keep, or furnish any record, notification, order form, statement, invoice, or information required under this Act; or
“(4) to refuse an entry into any premises for any inspection authorized by this Act.
“(b) An offense under this section is a felony of the second degree.”

Section 3.08 of the Texas Controlled Substances Act provides:

“(a) No controlled substance in Schedule II may be dispensed without the written prescription of a practitioner, except when dispensed directly to an ultimate user by a practitioner, other than a pharmacy.
“(b) In emergency situations, as defined by rule of the director, Schedule II drugs may be dispensed upon oral prescription of a practitioner, reduced promptly to writing by the pharmacy and filed by the pharmacy. Prescriptions shall be retained in conformity with the requirements of Section 3.06. No prescription for a Schedule II substance may be refilled.
“(c) Except when dispensed directly to an ultimate user by a practitioner, other than a pharmacy, a controlled substance included in Schedule III or IV, which is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act, shall not be dispensed without a written or oral prescription of a practitioner. The prescription shall not be filled or refilled more than six months after the date thereof or be refilled more than five times, unless renewed by the practitioner.
“(d) A controlled substance included in Schedule V shall not be distributed or dispensed other than for a medical purpose.
■ “(e) No prescription for Schedule II narcotic drugs shall be filled after the second day the prescription was issued.”

Section 2.04 of the Controlled Substances Act lists the Schedule II substances and drugs. In subsection (d)(4) thereof, “phen-metrazine and its salts” are listed as a Schedule II drug. Phenmetrazine is the-drug alleged in the indictment.

It would seem that under the provisions of said Section 4.08(a)(1) a practitioner cannot be convicted of the offense of unlawfully dispensing a controlled substance except in violation of Section 3.08.

Where a practitioner dispenses a controlled substance listed in Schedule II (as in the instant case) upon written prescription (not without written prescription) has he violated the provisions of the said Section 3.08?

Putting aside any question as to whether the indictment is sufficient to charge the offense of dispensing a controlled substance by a practitioner, we turn to the facts to see if the proof supports such offense.

It was stipulated that the appellant was a licensed physician, a medical doctor in the State and had been licensed since 1938. Thomas Garner of the Department of Public Safety Diversionary Investigative Unit testified he had heard from street talk that prescriptions could be obtained from the appellant if you had a prescription label. With the aid of a pharmacist he obtained a prescription label and typed the appellant’s name thereon, as well as the name of William Morrison and the words “to curb appetite.” On December 19, 1973, he went to appellant’s office in Houston, said he was Morrison, showed the prescription label on a bottle to the appellant and asked for a prescription for “preludins” (shown to be the trade name for phenmetrazine). He told appellant he was working long hours and needed to curb his appetite. He related that he was not given a medical examination, did not have his blood pressure or weight checked, nor did he see equipment for such purposes, and was not asked any questions about his medical history. He obtained a prescription for preludins and paid the appellant $5.00. The prescription was filled and Gamer obtained 30 preludin pills.

Garner returned to appellant’s office on January 4, January 17, and February 4, 1974, and each time obtained a prescription for thirty pills of preludin without receiving a medical examination, etc. He had each prescription filled.

On the date charged in the indictment, February 12, 1974, and though he had no prescription label, Garner obtained another prescription for preludins from the appellant without receiving a medical examination. He paid the appellant $5.00 and had the prescription filled at a pharmacy and obtained thirty preludin pills.

Two medical doctors testified for the State that it was not proper in the course of professional practice to prescribe preludin (phenmetrazine) without a medical examination, particularly checking the cardiovascular system, checking for evidence of high blood pressure, etc.

The appellant testified in his own behalf, but it is not necessary to detail all the other evidence since it is without dispute that on the date in question and all other occasions the appellant gave a prescription to Garner.

The State urges that evidence reflects a violation of Section 4.08(a)(1) of the Controlled Substances Act, which provides that it is unlawful for any person who is a practitioner to knowingly or intentionally distribute or dispense a controlled substance “in violation of Section 3.08.” Turning to Section 3.08, we find the only applicable subsection thereof to be subsection (a), which provides, “No controlled substance in Schedule II may be dispensed without the written prescription of a practitioner, except when dispensed directly to an ultimate user by a practitioner, other than a pharmacy-”

It is clear that for there to be a violation of Section 4.08 by a practitioner there must be a violation of Section 3.08. Under the applicable facts involving a Schedule II substance and evidence reflecting that in each instance the appellant issued a written prescription for preludins (phenmetrazine) to Garner, we can perceive no violation of Section 3.08 as enacted by the Legislature.

We are not aware of any provision or provisions of the Controlled Substances Act which makes it a penal offense for a practitioner to issue a written prescription for a Schedule II controlled substance without giving a medical examination or taking other steps deemed proper in the course of professional practice. It may be argued that such should be an offense under the law, but this is a matter addressed to the Legislature.

V.T.C.A., Penal Code, Sec. 1.03, reads as follows:

“(a) Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute.
“(b) The provisions of Titles 1, 2, and 3 of this code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise; however, the punishment affixed to an offense defined outside this code shall be applicable unless the punishment is classified in accordance with this code.
“(c) This code does not bar, suspend, or otherwise affect a right or liability to damages, penalty, forfeiture, or other remedy authorized by law to be recovered or enforced in a civil suit for conduct this code defines as an offense, and the civil injury is not merged in the offense.”

Subsection (a) of the foregoing section restates and refines the prior law’s prohibition against “unwritten penal law.” See Article 3, Vernon’s Ann.P.C., 1925. It has long been the law in this State that no act or omission is a crime unless made so by statute. The object of former Article 3 was to prohibit prosecution for what was an offense at common law but not made penal by statute. Our statutes have been wholly intolerant of constructive offenses.

We are not unaware of the decision of United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), that registered physicians may be prosecuted for violation of the Federal Controlled Substances Act (21 U.S.C., Sec. 841(a)(1)) when their activities fall outside the usual course of professional practice. However, because of the difference in the language of the Federal and State statute, the decision is distinguishable from the instant case.

For the reasons stated, the judgment is reversed and the cause remanded.

ODOM, Judge

(dissenting).

I dissent to the reversal of this conviction. The majority do not hold simply that the evidence is insufficient to show that appellant violated the Controlled Substances Act when he wrote the prescription for Garner; they hold that because the prescription was written by a doctor, it is impossible to show a violation of that law, regardless of how abbreviated an evaluation of the grounds for writing the prescription was made, or even if no evaluation was made at all. If the actor is a practitioner and a prescription is written, the delivery of a Schedule II controlled substance by prescription is protected under the majority’s holding. Even a set of facts as astounding as that set out in United States v. Moore, 423 U.S. 122, at 126, 96 S.Ct. 335, at 338, 46 L.Ed.2d 333, at 339, cited by the majority, apparently would be lawful under the holding of the majority.

The majority state:

“We are not aware of any provision or provisions of the Controlled Substances Act which makes it a penal offense for a practitioner to issue a written prescription for a Schedule II controlled substance without giving a medical examination or taking other steps deemed proper in the course of professional practice.”

I would suggest that they have failed to address the issue of whether such acts would violate Sec. 4.03 of the Controlled Substances Act, which provides in part:

“(a) Except as authorized by this Act, a person commits an offense if he knowingly or intentionally manufactures, delivers or possesses with intent to manufacture or deliver a controlled substance listed in Penalty Group 1, 2, 3, or 4.”

Phenmetrazine, the substance in this case, is listed in Penalty Group 3. Sec. 4.02(d)(1)(C), Controlled Substances Act. The majority persuasively demonstrate that such acts do not violate Secs. 4.08 and 3.08, but failure of those sections to prohibit the acts does not warrant the conclusion that the acts are authorized by the Act. The language of Sec. 4.03(a), supra, prohibits every delivery of such substances unless expressly authorized by the Act. The conduct here was a delivery (constructive transfer by prescription, see Sec. 1.02(8) and (10)), and unless a specifically authorized delivery, it was an unlawful delivery. I am not aware of any provision or provisions of the Controlled Substances Act that authorize unlimited prescription-writing powers granted to physicians by the majority.

According to footnote 1 of the majority, Sec. 4.03 does not apply for two reasons. First, “dispense” and “deliver” are characterized as “separate and distinct.” It is asserted there, “ ‘Dispense’ relates to those instances where dispensing [delivery?] is pursuant to the lawful order of a practitioner. Thus Sections 4.08 and 3.08 relate to the offense of unlawful dispensing a controlled substance by a practitioner.” This language leaves the impression that dispensing is by definition lawful, yet unlawful dispensing is an offense! The parties in this case and the people of Texas are entitled to clarification of this paradox. Is dispensing by definition lawful, or is there such an offense as unlawful dispensing?

Second, the majority in footnote 1 state that Sec. 4.03 does not apply because that section exempts deliveries authorized by the Act. Reference is made to Sections 3.01(b) and 1.02(24), yet those provisions read:

“Persons registered by the director under this Act to manufacture, distribute, dispense, analyze, or conduct research with controlled substances may possess, manufacture, distribute, dispense, analyze, or conduct research with those substances to the extent authorized by their registration and in conformity with the other provisions of this Act.” Sec. 3.01(a). (Emphasis added.)
“ ‘Practitioner’ means:
“(A) a physician, dentist, veterinarian, scientific investigator, or other person licensed, registered, or otherwise permitted to distribute, dispense, analyze or conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state; . . . ” Sec. 1.02(24). (Emphasis added.)

The majority, without discussion of the apparent limitations of the emphasized portions of the quoted provisions, asserts “the Act elsewhere provides for authorization” for unlimited prescription-writing powers, yet neglects to specifically identify the statutory language that “elsewhere” so provides.

Furthermore, under the majority’s holding that all prescriptions written by practitioners for Schedule II substances, are valid prescriptions, read in conjunction with Sec. 3.01(e)(3) and Sec. 4.04(a) of the Act, anyone possessing such a controlled substance pursuant to any such prescription is likewise in lawful possession of that controlled substance. Sec. 3.01, supra, provides in part:

“(e) The following persons need not register and may lawfully possess controlled substances under this Act:
“(3) an ultimate user, as that term is defined herein, or a person in possession of any controlled substance pursuant to a lawful order of a practitioner or in lawful possession of a Schedule V substance.” (Emphasis added.)

Section 4.04(a) prohibits possession of a controlled substance “Except as authorized by this Act”, e. g. possession pursuant to a lawful order of a practitioner, which lawful orders include all practitioner-written prescriptions, under the majority’s holding today.

Unless authorization is shown under the Act for unlimited prescription-writing powers for physicians, I must dissent.

DISSENTING OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

After further consideration, it appears that the dissenting opinion by Judge Odom on original submission is correct. The Legislature made it a penal offense under the Controlled Substances Act for a practitioner to issue a written prescription for a Schedule II controlled substance without taking steps deemed proper in the course of professional practice. It appears that the Legislature intended to restrict the activities of physicians, as well as others, who might deal in controlled substances.

Article 1.02(24) of the Act defines practitioner as being “a physician, or other person licensed, registered, or otherwise permitted to distribute * * * a controlled substance in the course of professional practice. .” (Emphasis supplied)

Section 3.01(b) of the Act provides that persons registered under the Act may, among other things, dispense those substances “to the extent authorized by their registration and in conformity with the other provisions of this Act.”

The Controlled Substances Act makes it a penal offense for a practitioner to issue a written prescription without giving a medical examination or taking other steps deemed proper in the course of professional practice.

The State’s motion for rehearing should be granted and the judgment affirmed.

      . The dissent, as we understand it, takes the position that there could be a possible violation under Section 4.03(a), which provides:
      “(a) Except as authorized by this Act, a person commits an offense if he knowingly or intentionally manufactures, delivers or possesses with intent to manufacture or deliver a controlled substance listed in Penalty Group 1, 2, 3 or 4.”
      The offense of delivery of phenmetrazine (a controlled substance in Penalty Group 3 as provided by Sec. 4.02(d)(1)(C) of the Controlled Substances Act) is a third degree felony. Sec. 4.05(b)(3), Controlled Substances Act.
      Sec. 1.02(8) of the Act provides that “ ‘Deliver’ or ‘delivery’ means the actual or constructive transfer from one person to another of a controlled substance, whether or not there is an agency relationship. For purposes of this Act, it also includes an offer to sell a controlled substance. Proof of an offer to sell must be corroborated by a person other than the offeree or by evidence other than a statement of the offeree.”
      Sec. 1.02(10) of the Act defines “ ‘Dispense’ means to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner (in the course of professional practice or research), including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for such delivery.” Obviously “dispense” is a special and limited means of delivery provided by statute and would control over the broad general definition of “delivery,” which relates to the transfer, actual or constructive, of a controlled substance. “Dispense” relates to those instances where dispensing is pursuant to the lawful order of a practitioner. Thus Sections 4.08 and 3.08 relate to the offense of unlawful dispensing a controlled substance by a practitioner. A reading of the entire Act, including the definition of “Practitioner,” and provisions of Sub-chapter 3 (Regulations of Manufacture and Dispensing of Controlled Substances), it can readily be seen that “dispense” has a separate and distinct meaning from “delivery” for purposes of the Act.
      There is another reason why Section 4.03(a), supra, is not applicable. The section commences with the words, “Except as authorized by this Act . . . .” As earlier noted in this opinion, persons registered under the Act to dispense may dispense controlled substances in accordance with the Act. See Section 3.01(b). Further the director shall register an applicant to dispense controlled substances in Schedules II through V if the applicant is a practitioner licensed under the law of this State. See Section 3.03(b)(1). A “practitioner” includes a physician permitted to dispense controlled substances. See Section 1.02(24). The facts show the appellant was a licensed physician in this State. Even if it could be argued that the “delivers” portion of Section 4.03(a) had reference to dispensing of controlled substances by written prescription by a physician, the Act elsewhere provides for authorization for such action and thus would fall under the portion of the section reading, “Except as authorized by this Act.”


author: GREEN, Commissioner. DOUGLAS, Judge

text:
    Robert Dean McCLURE, Appellant, v. The STATE of Texas, Appellee.
    No. 52035.
    Court of Criminal Appeals of Texas.
    Sept. 20, 1976.
    Rehearing Denied Jan. 12, 1977.

      Clifford J. Hardwick, Odessa, for appellant.
    John H. Green, Dist. Atty., and Dennis Cadra, Asst. Dist. Atty., Odessa, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of murder. The jury assessed the punishment at ninety-nine years.

The State’s evidence reflects that on June 10,1974, appellant purchased a .22 automatic pistol, went to the Ramada Inn in Odessa, had a brief conversation with his wife at a swimming pool, and as she turned from him and started to leave, shot her eight times. Her death resulted from these wounds.

Appellant, 34 years of age, as a witness at the guilt stage admitted the shooting. He testified to a course of conduct during their brief marriage by his 17 year old wife which included a number of extramarital affairs with other men. His testimony of his mental condition immediately before and at the time of the shooting, caused by his wife’s conduct before and her remarks at the time he shot her, together with the evidence of other defense witnesses including a psychiatrist, was sufficient to raise the issue of voluntary manslaughter. See V.T.C.A. Penal Code, Sec. 19.04.

The court in his charge to the jury submitted the issues of murder, V.T.C.A. Penal Code, Sec. 19.02(a)(1), and voluntary manslaughter.

Appellant urges seven grounds of error. In view of our disposition of this case, we find it unnecessary to discuss all of appellant’s contentions.

In his fourth ground of error, appellant urges that the court erred in refusing to grant a mistrial after the district attorney in final argument at the guilt stage repeatedly advised the jury of the effect of their verdict by specifically referring to the difference in punishment between murder and voluntary manslaughter.

The record reflects the following proceedings during the prosecuting attorney’s closing argument at the guilt stage: “. I also asked you if you could return a verdict of ninety-nine years and you said you could. The Defense lawyer talks about a large number of years, he talks about a large verdict, you recall it, it is here in this Record, talking about a large verdict. You know the most you can get for involuntary manslaughter is twenty years?

“MR. TRENCHARD: Your Honor—
“THE COURT: Sustain the objection.
“MR. TRENCHARD: We ask for an instruction.
“THE COURT: The Jury won’t consider it at this time.
“MR TRENCHARD: And we move for a mistrial.
“THE COURT: Overruled.
“MR. TRENCHARD: Note our exception.
“MR. GREEN: You can get ninety-nine if it is murder but you get less, and don’t get in that trap—
“MR. TRENCHARD: Your Honor—
“THE COURT: Mr. Green, I sustained the argument on the number of years. The Jury won’t consider any argument about a number of years.
“MR. TRENCHARD: We ask for a mistrial.
“THE COURT: Overruled.
“MR. GREEN: You see, you get less years or they won’t get up here and argue that.
“THE COURT: Don’t argue years, Mr. Green.
“MR. GREEN: I am not, it is in this Record. You Ladies and Gentlemen recall talking about a large number of years, don’t be misled about that argument because during this stage of the trial—
“MR. TRENCHARD: Your Honor—
“MR. GREEN: Judge, I can answer his argument about a large number of years.
“THE COURT: I don’t remember the argument.
“MR. GREEN: It is in the Record.
“THE COURT: The Jury—
“MR. TRENCHARD: Your Honor—
“THE COURT: The Jury at this stage of the trial is only concerned with guilt or innocence, that is all this part of the trial is about.
“MR. TRENCHARD: We ask for a mistrial.
“THE COURT: Overruled.
“MR. GREEN: You see, what we get to, we are entitled to just as fair a trial as they are, it is in the Record, if you don’t believe me, I am trying to answer his arguments. He said I was going to tell you about the they people and the large number of years. I am telling you, you are not concerned at this time as Judge did tell you about the number of years that you give,' but use your common sense, think about this, your common sense, would he ask for voluntary manslaughter if you could get the same number of years?
“MR. TRENCHARD: Objection, again, Your Honor.
“THE COURT: I will overrule that.
“MR. GREEN: Would he, of course not. You see, I can’t argue things, but I can ask you folks to use your own common sense, that is what I am asking you to do in that regard. That is all we ever do. We don’t try to hide anything, but we ask people when we can’t tell them something, to use their common sense. I hope you understand what I am saying

Defense counsel, in their arguments, did not mention the punishment for manslaughter. The nearest reference to the punishment for manslaughter appears in defense counsel’s argument as follows:

“MR. TRENCHARD: He may argue that you are the they people, people are always saying, why don’t they do something about it, about all the crime that goes on, implying that now you are the they people, you are the person that has to do something about it. If a long sentence or conviction of an offense greater than that which has been committed would deter a crime of passion, maybe that would be all right. I don’t think you are going to be able to deter crimes of passion even though I am sure every one of us would hope that could be done. The danger of these arguments is that they tend to get the Jury worked up, mad and angry at the Defendant, they tend to make them think they have got to take out on him everything bad, punish him for every crime that has been committed in the community . .

We do not find that the above argument of the prosecutor was invited by these remarks of defense counsel, and conclude that it constituted a totally improper line of argument to pursue at the guilt stage of the proceedings. Cook v. State, Tex.Cr.App., 537 S.W.2d 258; Cherry v. State, Tex.Cr.App., 507 S.W.2d 549.

This Court has previously held that, although the mere inclusion of information regarding punishment in the charge at the guilt stage is improper, the error is not such as to require reversal. Staggs v. State, Tex.Cr.App., 503 S.W.2d 587; Webb v. State, Tex.Cr.App., 439 S.W.2d 342. However, in the case at hand, the court did not charge on the possible punishments at the guilt stage, and the prosecutor not only referred to the possible punishment, but he did so repeatedly over objections from defense counsel and instructions by the court. The prosecutor pursued a course of repeatedly attempting to place matters before the jury which were impermissible, and which could serve only to inflame and prejudice the minds of the jurors. Such misconduct cannot be held harmless. Cook v. State, supra; Boyde v. State, Tex.Cr.App., 513 S.W.2d 588; Anderson v. State, Tex.Cr.App., 525 S.W.2d 20.

Even after the court had, on its own motion, stopped the argument to instruct the prosecutor not to go into punishment at the guilt stage of the trial, the prosecutor continued to refer indirectly to punishment. He stated:

“. . . You see, I can’t argue things, but I can ask you folks to use your own common sense, that is what I am asking you to do in that regard. That is all we ever do. We don’t try to hide anything, but we ask people when we can’t tell them something, to use their common sense. I hope you understand what I am saying.”

The prosecutor argued further:

“But use your common sense, think about this, your common sense, would he ask for voluntary manslaughter if you would get the same number of years?”

Appellant’s objection to this was overruled, and the prosecutor continued to argue along the same line, as shown in the above quote.

Here, the harm was not in informing the jury of the range of punishment, but in arguing that appellant should not be convicted of manslaughter because it carried a lesser punishment, but should be convicted of murder because of the greater penalty. It was a plea to the jury to consider the amount of punishment, rather than the facts, in determining the offense for which appellant should be convicted. See and compare Clanton v. State, Tex.Cr.App., 528 S.W.2d 250; Jones v. State, Tex.Cr.App., 522 S.W.2d 225.

The prosecutor also contends that because appellant’s objections were sustained and an instruction given, that all possible harm is removed. This is a statement' of the general rule. Holloway v. State, Tex.Cr.App., 525 S.W.2d 165. However, here the argument of the prosecutor was manifestly improper because the jury, at the guilt stage, was not supposed to be interested in punishment, but only in guilt or innocence based on the evidence and the law as given in the court’s charge, and even after the court had sustained objections the prosecutor continued to argue on punishment at the guilt stage. The court’s instructions to disregard, in view of the prosecutor’s continued remarks, did not remove the harm done. Cook v. State, supra; Anderson v. State, supra.

The fact that appellant, on three occasions, did not complete his objection is not controlling here, since the court never permitted him to do so, but sustained the objection before it was fully stated. It is obvious that the trial court knew the basis of the objection.

Under the circumstances of this case, the doctrine of Vela v. State, Tex.Cr.App., 516 S.W.2d 176, which held that without a timely and specific objection being made in addition to a motion for mistrial, no error is preserved, is inapplicable. See Cook v. State, supra.

Due to the facts and circumstances of this case, the Court cannot say with reasonable certainty that these arguments did not affect the jury’s verdict of murder instead of voluntary manslaughter.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, Judge

(dissenting).

The majority reverses this conviction because of the prosecutor’s remarks concerning the difference in the number of years appellant could receive for murder as opposed to voluntary manslaughter. The record shows that the jury was instructed not to consider any argument concerning the number of years. The error, if any, in the prosecutor’s remarks is harmless as the jury is not required to leave its common sense at home. The average person is aware that murder carries a greater penalty than voluntary manslaughter. The lesser included offense of voluntary manslaughter was discussed with the jury during voir dire as a second degree felony while murder was referred to as a first degree felony. Would not reasonable minds know that one carried a greater penalty than the other?

The prosecutor should not have continued the line of argument after the court had instructed the jury not to consider it. However, the repetition of nothing still amounts to nothing, or zero plus zero equals zero.

No reversible error has been shown. The judgment should be affirmed.


author: GUPTON, Judge. ODOM, Judge PHILLIPS, Judge. DOUGLAS, J.,

text:
    Robert LEIGHTON, Appellant, v. The STATE of Texas, Appellee.
    No. 51782.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.
    On Rehearing Dec. 8, 1976.

      Prank Maloney and Philip A. Nelson, Jr., Austin, for appellant.
    Louis M. Crump, Dist. Atty., San Saba, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GUPTON, Judge.

The offense is unlawful possession of a narcotic drug, marihuana; the punishment, assessed under the Controlled Substances Act, $100.00 fine.

The case was tried without the intervention of a jury. In his sole ground of error appellant contends his arrest and the search of his vehicle were illegal and the fruits of the search were inadmissible under Art. 38.23, V.A.C.C.P.

The State’s only witness, Deputy Sheriff Bruce, testified he received a call on July 12, 1973, from Mr. Kinkaid concerning a possible burglary of a home in Sunrise Beach. Bruce investigated the report, but could find no signs of forced entry into the residence in question. Bruce and Kinkaid were unable to establish that anything was missing from the house, but Bruce stated he had never before been in the house.

Bruce and Kinkaid returned to the patrol car approximately 50 yards from the house and they saw a white Fiat drive by. Kin-kaid told Bruce he believed the car was one of the vehicles that had been at the house in question. Bruce pursued the car, which pulled over to the side of the road. As Bruce approached the car, he smelled what he believed to be the odor of marihuana coming from the vehicle. He asked the driver, appellant, to get out and produce his driver’s license. As appellant stepped from the vehicle, Bruce saw what he believed to be marihuana on the seat of the car on the driver’s side. Bruce asked appellant to sign a permission to search form and appellant asked what Bruce would do if appellant did not sign. Bruce replied he did not need it and proceeded to search the vehicle.

Bruce’s expertise in recognizing marihuana was established, and he stated what he found in the driver’s seat was about .05 of a gram of ground up marihuana. See Jordan v. State, Tex.Cr.App., 486 S.W.2d 784. This substance was not introduced into evidence. The search of the vehicle also revealed one brown case, two baggies and two vials containing plant substance which were discovered in a carrying case found on the back floorboard. Bruce searched this part of the car because he noticed the passenger reach into the back seat when he stopped the vehicle. The sufficiency of the evidence is not challenged.

The report from Kinkaid concerning a possible burglary did not constitute probable cause for appellant’s arrest. However, circumstances which do not constitute probable cause for arrest may justify a lesser intrusion upon the personal security of an individual, such as temporary detention for purposes of investigation. Mann v. State, Tex.Cr.App., 525 S.W.2d 174. An officer may have specific and articulable facts which, in the light of his experience and general knowledge, reasonably warrant such a stop. Thompson v. State, Tex.Cr.App., 533 S.W.2d 825.

Bruce testified at the time he stopped appellant he had been a deputy sheriff in Llano County for approximately two months. He had been a law enforcement officer since September 1970, serving with the Brownwood Police Department for 19 months and then as deputy sheriff in the Brown County Sheriff’s Department for 15 months.

Bruce stated he stopped appellant as part of the investigation of the suspected burglary reported by Kinkaid. Kinkaid told Bruce he thought he had seen people go into the house he was watching while the owners were away. As appellant drove by, Kinkaid told Bruce he believed he had seen appellant’s car at the house. Bruce testified this occurred at 7:00 or 7:30 p. m., during daylight hours. Although there is nothing in the record to indicate when Kin-kaid observed activity at the house, it would appear Kinkaid’s observations and report to the police occurred immediately prior to Bruce’s arrival at the scene. Appellant’s car was identified by Kinkaid a short time thereafter. Bruce’s brief detention of appellant in order to determine his identity or to maintain status quo momentarily while obtaining more information was reasonable under the circumstances here presented. What Bruce saw in open view during this detention was not the fruit of a search and Bruce’s testimony concerning the marihuana was admissible. Long v. State, Tex.Cr.App., 532 S.W.2d 591; Hunnicutt v. State, Tex.Cr.App., 531 S.W.2d 618.

Finding no reversible error, we affirm the judgment.

ODOM, Judge

(dissenting).

I dissent to the affirmance of this conviction.

The issue before the Court, as urged both in appellant’s brief and the State’s brief, reduces to one of statutory application. The trial court’s ruling on the admission of evidence of the seizure of marihuana from appellant’s possession is challenged on grounds of unlawfulness of the initial police stop of appellant’s car. Appellant suggests, and the State in its brief agrees, that the issue is whether the officer was authorized to stop appellant under Article 14.03 or 14.04, V.A.C.C.P.

Article 14.03, supra, provides:

“Any peace officer may arrest, without warrant, persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony or breach of the peace, or threaten, or are about to commit some offense against the laws.”

Article 14.04, supra, provides:

“Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.”

It does not appear that Article 14.03, supra, has any application to the facts in this case. It is clear from the statement of the facts in the majority opinion that the officer was not acting on the basis of any suspicious character regarding the place appellant was found by him, nor was he acting on the basis of any committed felony or breach of the peace, or anticipated commission of some offense reasonably shown by the circumstances under which appellant was apprehended. To the contrary, the officer was acting entirely upon the basis of communications from citizen Kinkaid, rather than the place or circumstances at the time appellant was stopped. The statutory basis for the officer’s actions, therefore, must be sought in Article 14.04, supra.

In measuring the actions of a peace officer against the standards of Art. 14.04, it must be asked whether the officer was (1) presented with satisfactory proof (measured by objective standards subject to judicial review, not simply subjectively satisfactory to the officer), (2) upon the representation of a credible person, that (3) a felony was committed, and (4) the offender was about to escape.

The inquiry here may begin and end with consideration of the first question. The officer was not presented with satisfactory proof that a felony had been committed. The officer had received a report from Kin-kaid that a burglary might have been committed at his neighbor’s, the Hoffman residence. An investigation at the scene, however, did not reveal anything missing or any forced entry. The officer testified that when he stopped appellant he did not have any affirmative facts that an offense had been committed at the Hoffman residence. The requirements of Article 14.04 were not 8 met.

In Brown v. State, Tex.Cr.App., 481 S.W.2d 106, the officer knew an offense had been committed, but “had no specific knowledge connecting any of the appellants to the armed robbery.” Brown, supra, at 111. In the instant case the officer did not even know whether an offense had been committed.

The stop was not authorized; the evidence should have been suppressed; the judgment should be reversed.

ROBERTS, J., joins in this dissent.

OPINION

ON APPELLANT’S MOTION FOR REHEARING

PHILLIPS, Judge.

The offense is unlawful possession of a narcotic drug, marihuana; the punishment, assessed under the Controlled Substances Act, $100.00 fine.

The facts surrounding the instant offense are set forth in the opinion on original submission and need not be restated here.

On rehearing appellant asks us to reconsider whether the facts and information known to Bruce at the time he detained appellant justified the stop of appellant’s automobile. As stated in the opinion on original submission, circumstances which do not constitute probable cause for arrest may justify a lesser intrusion upon the personal security of an individual, such as temporary detention for purposes of investigation. See Mann v. State, Tex.Cr.App., 525 S.W.2d 174. If Bruce lawfully stopped appellant’s automobile, testimony concerning the contraband was admissible because marihuana was in open view of the officer when appellant emerged from the vehicle. Long v. State, Tex.Cr.App., 532 S.W.2d 591; Hunnicutt v. State, Tex.Cr.App., 531 S.W.2d 618.

Bruce stated he did not observe appellant committing any traffic violations or any offense. Cf. Hampton v. State, Tex.Cr.App., 511 S.W.2d 1. Bruce testified he stopped appellant as part of the investigation of the suspected burglary. He admitted that at the time he stopped appellant’s car he did not have any affirmative facts that a burglary or an offense had been committed. During voir dire examination of Bruce, the following occurred:

“THE COURT: Just tell me why Mr. Kinkaid thinks there was a burglary?
A. Well, I don’t know, Judge. He just—he said he had seen the cars up there at the house, and he thought they had gone in one that was supposed to have permission to go in there. He was watching the house for these people.”

The record does not contain any other evidence to support Kinkaid’s belief that a burglary or attempted burglary occurred. It appears Bruce detained appellant’s automobile because Kinkaid thought someone had entered a house while the owners were away and be believed appellant’s car was one of the vehicles that had been at the house. Although Bruce testified he stopped appellant at about 7:00 or 7:30 p. m., the record does not indicate when Kinkaid observed the vehicles at the house. The record also does not reveal how many cars and people Kinkaid saw at the house, if he was able to give a description of any of the persons or other vehicles, or if he described any activity which would lead a reasonably prudent man to believe a burglary had been committed. See and compare Casarez v. State, Tex.Cr.App., 504 S.W.2d 847.

The information received from Kin-kaid and Bruce’s subsequent investigation of the house are not circumstances which reasonably show a felony had been committed so as to justify appellant’s detention under either Art. 14.03 or 14.04, V.A.C.C.P. The inarticulate hunch, suspicion or good faith of an arresting officer is insufficient to constitute probable cause for an arrest, search or temporary detention. Talbert v. State, Tex.Cr.App., 489 S.W.2d 309.

The record does not reveal specific and articulable facts and circumstances such as to justify Officer Bruce’s initial stop of appellant’s vehicle. The trial court erred in permitting Officer Bruce to testify as to what he observed after he detained appellant.

Appellant’s motion for rehearing is granted. The judgment is reversed and the cause remanded.

DOUGLAS, J.,

dissents for the reasons set forth in the opinion affirming the conviction on original submission.

      . Even at trial, twenty-one months after the arrest, there was no showing of an offense at the Hoffman residence.


text:
    Domitilo MORENO, Appellant, v. The STATE of Texas, Appellee.
    Nos. 52097, 52098.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1976.
    R. C. Andrews, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Cause No. 52,097 is a conviction for burglary of a habitation. Cause No. 52,098 is a conviction for possession of tetrahydrocan-nabinols. In each case, appellant waived trial by jury and entered pleas of guilty before the court. Punishment was assessed at five years in each case.

On May 26,1976, the appeals were abated because there was nothing before this Court to reflect that appellant had been advised of his right to file a pro se brief or advised that he would be given an opportunity to review the appellate records in order to aid him in filing such a brief. See McMahon v. State, 529 S.W.2d 771 (Tex.Cr.App.1975), and cases there cited.

In compliance with the order of this Court, on July 8, 1976, the trial court conducted a hearing and found, in part, as follows:

“. . . It has also been made known to this Court that this defendant was mistakenly released by the Texas Department of Corrections, apparently not knowing of the convictions in Harris County, but the defendant then and there well knew and voluntarily absented himself from detention, and at this time the defendant is not in custody and not under bond and his present whereabouts are unknown to the defense counsel and to this Court; . . .”

Moreno is in the same position as an escapee. In Prince v. State, 169 Tex.Cr. 559, 336 S.W.2d 140 (1960), this Court held that, where one has been released on bail when he was not entitled to bail under Article 815, V.A.C.C.P. (1925) [now Article 44.04] because he had been assessed a punishment of more than fifteen years, he had the status of an escapee.

Article 44.09, V.A.C.C.P., provides that if a defendant, pending appeal in a felony case, makes his escape from custody the jurisdiction of the Court of Criminal Appeals will no longer attach in the case. Holliday v. State, 482 S.W.2d 215 (Tex.Cr.App.1972); Webb v. State, 449 S.W.2d 230 (Tex.Cr.App.1969); Redman v. State, 449 S.W.2d 256 (Tex.Cr.App.1970). See Ex parte Leopard, 520 S.W.2d 759 (Tex.Cr.App.1975).

Because Moreno is in the status as an escapee, this Court does not have jurisdiction except to dismiss the appeals.

The appeals are dismissed.

ONION, P. J., concurs in the result.


author: ONION, Presiding Judge.

text:
    Tommy PASSMORE, Appellant, v. The STATE of Texas, Appellee.
    No. 52195.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1976.
    Rehearing Denied Jan. 5, 1977.

      Harris E. Lofthus, Amarillo, for appellant.
    Tom Curtis, Dist. Atty. and Bruce P. Sa-dler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal stems from a conviction for counterfeiting a driver’s license, to-wit: an operator’s license, under the provisions of Article 6687b, § 44A(a), Vernon’s Ann.C.S. After a finding of guilty by the jury, the jury also found that appellant had been twice previously convicted of felonies as alleged in the indictment. In accordance with V.T.C.A., Penal Code, § 12.42(d), the trial court sentenced appellant to life imprisonment.

On appeal appellant attacks the statute forming the basis of the prosecution, contends the evidence was insufficient to corroborate the accomplice witness, that the court erred in refusing to submit the issue of accomplice witness to the jury, and the court erred in imposing a life sentence since one of the prior convictions was for an offense which is no longer classified as a felony.

Appellant contends that Article 6687b, § 44A(a), supra, is so broad and indefinite that it is unconstitutional. He urges that the “statute ought to be sent back to the Department of Public Safety with instructions to have a lawyer look at it.”

Article 6687b, § 44A(a), supra, as amended by Acts 1971, 62nd Leg., p. 2916, ch. 966, provides:

“Any person who shall print, engrave, copy, photograph, make, issue, sell, or circulate, or who shall possess or have in his possession with intent to use, sell, circulate, or who shall possess or have in his possession with intent to use, sell, circulate, or pass, any forged or counterfeit driver’s license, driver’s license form, stamp, permit, license, official signature, certificate, evidence of fee payment, or any other instrument which has not been printed, manufactured, or made by or under the direction of, or issued, sold, or circulated by or under the direction of the person, board, agency, or authority authorized to do so by the provisions of this Act, shall be guilty of a felony and upon conviction shall be punished by confinement in the State penitentiary for a term of not less than two (2) years nor more than five (5) years.”

Fair play and the demands of due process require that the terms of a penal statute be sufficiently explicit to inform those subject to it what conduct will render a person liable to its penalties. The test is whether the terms are so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Powell v. State, 538 S.W.2d 617 (Tex.Cr.App.1976).

No specific challenge is made to any term or phrase by the appellant or to any overbreadth of the statute. Appellant simply argues that the statute “fails to meet any standard of statutory construction.” Contrary to such assertion, we hold that Article 6687b, § 44A(a), supra, was sufficient to give the appellant adequate notice of the prohibited conduct. A statute is not rendered unconstitutionally vague merely because the words or terms therein are not specifically defined. Powell v. State, supra.

Appellant’s contention is overruled.

Next appellant claims that the court erred in failing to grant his motion for instructed verdict because the evidence was insufficient to corroborate the accomplice witness. See Article 38.14, Vernon’s Ann.C. C.P.

The record shows that Charles Baylor, a special agent with the Alcohol, Tobacco and Firearms Division of the United States Treasury Department, was assigned in January, 1975 to work as an undercover agent in an investigation involving the trafficking of illegal weapons between Texas and New Jersey. In the course of this investigation Baylor met the appellant in Amarillo. Concerning the events prior to appellant’s making the counterfeit license, Baylor testified:

“Q. Now, what, if anything, occurred during a conversation with Tommy Passmore on March the 4th, 1975?
At that time I had known him for over a month, I guess, or around a month, and at that time he made me a Texas drivers license, a fictitious Texas drivers license. A.
“Q. All right. Now, Mr. Baylor, did you ask him to make you this drivers license?
“A. No sir.
“Q. How did it come up in the conversation, if you recall?
“A. I was posing as a resident of the State of New Jersey, and in New Jersey you can’t buy guns as readily or as available as you can in Texas. In Texas all you have to do is show proof that you are a resident of the State of Texas, and we had already had some transactions and he had volunteered to make me a drivers license so I could buy guns anywhere in the State of Texas.”

The testimony reflects that Baylor did not ask the appellant to make the operator’s license in question but that appellant volunteered to .make the same. An undercover agent is not an accomplice witness so long as he does not bring about the crime but merely obtains evidence to be used against those engaged in criminal conduct. Pearce v. State, 513 S.W.2d 539 (Tex.Cr.App.1974), and cases there cited. Since the facts of the instant case do not show that Baylor was an accomplice witness, Article 38.14, Vernon’s Ann.C.C.P., was not applicable and the court did not err in overruling the motion for instructed verdict.

Appellant’s contention that the court erred in refusing his special requested charge as to accomplice witness testimony is likewise without merit for the same reason. Baylor was neither an accomplice witness as a matter of law nor was a fact issue as to his status as an accomplice witness raised.

Appellant also complains the court erred in imposing a life sentence since one of the prior convictions used for enhancement of punishment is no longer classified as a felony under the new Penal Code. The prior conviction to which reference is made is a 1967 conviction for theft over $50.00, which was then a felony. He contends that such offense is now classified as a Class A misdemeanor. V.T.C.A., Penal Code, § 31.03(d), provides:

“An offense under this section is:
U * * *
“(3) a Class A misdemeanor if the value of the property stolen is $20 or more but less than $200.”

First, we observe there is nothing in the record to show the property which was the subject of the 1967 conviction had a value of less than $200.00, but even this is immaterial. Moreno v. State, 541 S.W.2d 170 (Tex.Cr.App.1976), has been decided adversely to appellant’s contention. There the court said that the question was controlled by V.T.C.A., Penal Code, § 12.41, which provides for enhancement purposes “ . . . any conviction not obtained from a prosecution under this code shall be classified as follows: (1) ‘felony of the third degree’ if confinement in a penitentiary is affixed to the offense as a possible punishment. . . . ” (Emphasis Added.) Since the 1967 felony conviction was not a conviction under the current Penal Code but under the former Penal Code and carried confinement in the Department of Corrections as punishment, it is considered a felony of the third degree for purposes of enhancement of punishment. See Moreno v. State, supra.

Lastly appellant urges that mandatory life imprisonment for habitual offenders under V.T.C.A., Penal Code, § 12.42(d), constitutes jeopardy.

Former Article 63 (Vernon’s Ann.P.C., 1925), contained similar provisions as said § 12.42(d), and that statute and other enhanced penalty statutes have been held valid against all constitutional attack. 1 Branch’s Ann.P.C., 2nd ed., § 698, p. 681. See also Mackie v. State, 367 S.W.2d 697 (Tex.Cr.App.1963); Young v. State, 170 Tex.Cr.R. 498, 341 S.W.2d 911 (1960); Ex parte Reyes, 383 S.W.2d 804 (Tex.Cr.App.1964); Cherry v. State, 447 S.W.2d 154 (Tex.Cr.App.1969); Cooper v. State, 492 S.W.2d 545 (Tex.Cr.App.1973); Thrash v. State, 500 S.W.2d 834 (Tex.Cr.App.1973).

These same enhanced penalty statutes under the former Code have been held not to place a defendant in double jeopardy by use of prior convictions to enhance punishment. See Mullins v. State, 409 S.W.2d 869 (Tex.Cr.App.1966) (former Article 63); Franks v. State, 462 S.W.2d 287 (Tex.Cr.App.1971) (former Article 62); Cherry v. State, supra (former Article 62); Spencer v. State, 389 S.W.2d 304 (Tex.Cr.App.1965), affirmed 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, reh. den. 386 U.S. 965, 969, 87 S.Ct. 1015, 18 L.Ed.2d 125. See also Woodard v. Beto, 447 F.2d 103 (5th Cir.1971), cert. den. 404 U.S. 957, 92 S.Ct. 325, 30 L.Ed.2d 275.

In Spencer v. Texas, supra, the United States Supreme Court held that due process does not prevent States from enacting habitual criminal statutes and from admitting evidence during trial tending to prove allegations required under the statutory scheme.

In the early case of Regina v. Clark, Dears, 198-201, Lord Campbell stated:

“A statement of a previous conviction does not charge an offense. It is only the averment of a fact which may affect the punishment. The jury do not find the person guilty of the previous offense; they only find that he was previously convicted of it, as a historical fact.” See also Long v. State, 36 Tex. 6 (1871).

In Punchard v. State, 142 Tex.Cr.R. 531, 154 S.W.2d 648 (1941), it was held that a conviction under the “habitual criminal” statute is not a conviction of an offense of being a habitual criminal, since the statute is one of punishment and does not create an offense. See also Ex parte Burch, 267 S.W.2d 560 (Tex.Cr.App.1954); Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781 (1956).

Allegations in an indictment as to prior convictions are not part of the substantive offense, but are merely a guide for court or jury in fixing final punishment in the event of conviction. Handy v. State, 160 Tex.Cr.R. 258, 268 S.W.2d 182 (1954).

Former Article 63, Vernon’s Ann.P.C., 1925, was in effect brought forward in the new Penal Code by V.T.C.A., Penal Code, § 12.42(d), and thus preserved. See Practice Commentary to V.T.C.A., Penal Code, § 12.42; Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975). Therefore, we adhere to our previous decisions and hold that the utilization of said § 12.42(d) does not place a defendant in double jeopardy by use of prior convictions to enhance punishment. See Thomas v. State, 543 S.W.2d 645 (Tex.Cr.App.1976), where the same contention advanced by the appellant was overruled.

Appellant’s contention is without merit.

The judgment is affirmed.

      . V.T.C.A., Penal Code, § 12.42(d), provides:
      “(d) 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.”


author: BROWN, Commissioner.

text:
    Melton Waters GIBBS, Appellant, v. The STATE of Texas, Appellee.
    No. 52605.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1976.
    Rehearing Denied Jan. 5, 1977.

      Glenn E. Eakman, Hurst, for appellant.
    Tim C. Curry, Dist. Atty. and Candyce W. Howell, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant was found guilty of rape by a jury and the jury assessed his punishment, enhanced by a prior rape conviction, at 20 years.

The indictment charged appellant with the rape and in paragraph two charged a prior conviction of grand larceny in the State of Alabama, in paragraph three with a prior conviction of the offense of rape in the State of Wisconsin, and in paragraph four of a prior conviction of rape in the State of Idaho. At the punishment phase the prosecution waived and abandoned paragraph two charging the grand larceny conviction and paragraph three charging the rape conviction in Wisconsin. Paragraph four which charged the rape conviction in Idaho was the basis of the enhancement.

Appellant’s three grounds of error attack the action of the trial court in receiving in evidence the Idaho rape conviction because the evidence did not connect the defendant with such offense, the evidence of such prior conviction was not properly authenticated, and the error of the court in charging on such prior conviction because of the insufficiency of the evidence to support such finding.

Appellant first complains that the fingerprints contained in the pen packet from Idaho were not proven to be those of appellant. The record clearly shows that the Tarrant County fingerprint expert compared appellant’s known prints with those in the pen packet and testified that the prints were identical. Appellant also complains that the records from the Idaho penitentiary do not establish that appellant was the person previously convicted. This is based on the fact that although appellant’s name, Melton Waters Gibbs, appeared throughout the instruments contained in the packet, that on the copy of the sentence the name typed in the blank space on the form was Melton Walters Gibbs. Clearly, this was a typographical error and, as such, does not present reversible error. Hill v. State, 149 Tex.Cr.R. 324, 194 S.W.2d 266.

Appellant next complains that the Idaho pen packet was not properly authenticated. The pen packet is certified by the record custodian of the Idaho State Penitentiary and the official capacity of this official is certified to by the Secretary of State of the State of Idaho under the seal of the State of Idaho. This certification meets the requirements of Art. 3731a, V.A. C.S.

Finally, appellant complains that the Idaho conviction is a felony conviction based upon an information rather than upon an indictment and is, therefore void. This matter is raised for the first time on appeal in a supplemental brief. Since this matter was not raised in the trial court, the State offered no proof of the Idaho law in this regard. In support of his contention, appellant cites Holcomb v. State, Tex.Cr.App., 424 S.W.2d 635. This case, however, was decided in 1968 prior to the amendment of the Texas Code of Criminal Procedure in 1971. Article 1.141, Vernon’s Ann.C.C.P., enacted in 1971 reads as follows: “A person represented by legal counsel may in open court or by written instrument voluntarily waive the right to be accused by indictment of an offense other than a capital felony. On waiver as provided in this article, the accused shall be charged by information.” The Idaho judgment reflects that appellant appeared in open court with counsel, J. Blaine Anderson, and entered his plea of guilty to the information charging the offense of rape. The judgment further recites: “The defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him to which he replied that he had none.” Under our Article 1.141, Vernon’s Ann.C.C.P., this clearly demonstrates a waiver in open court. King v. State, Tex.Cr.App., 478 S.W.2d 43.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Edgar E. ALLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 53299.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1976.
    Benjamin F. Walker, Jr., San Antonio, court appointed, for appellant.
    Ted Butler, Dist. Atty., and Sharon S. Macrae and Susan D. Reed, Asst. Dist. At-tys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was indicted for passing a forged instrument in violation of V.T.C.A., Penal Code, Section 32.21. On April 6, 1975, appellant waived trial by jury and entered a plea of guilty before the Court. The Court accepted appellant’s plea, found him guilty, and assessed his punishment at imprisonment for five years.

In his sole ground of error, appellant contends that the indictment is fundamentally defective because it does not allege that the money order which appellant was alleged to have passed was a “writing”. Section 32.21(a)(1)(B) makes it an offense for a person to pass a writing that is forged within the meaning of paragraph (A) of Section 32.21(a)(1). While the indictment in the instant case does not allege that the instrument which appellant passed was a “writing,” it does set forth the instrument in haec verba. The indictment in relevant part alleged that:

“. ■ . on or about the 3rd day of MARCH, A.D., 1975, EDGAR E. ALLEN hereinafter called defendant did then and there knowingly and intentionally with intent to defraud and harm another, PASS TO HAROLD KEMPER a MONEY ORDER that had been MADE, EXECUTED AND COMPLETED so that it purported to be the act of another who did not authorize the act, and the said defendant knew said MONEY ORDER to be forged and which said MONEY ORDER is to the tenor following:-

Section 32.21(a)(2) defines the term “writing”. It provides:

“(2) ‘Writing’ includes:
(A) printing or any other method of recording information;
(B) money, coins, tokens, stamps, seals, credit cards, badges, and trademarks; and
(C) symbols of value, right, privilege, or identification.”

The money order alleged in the indictment constituted a “writing” within the meaning of the statute. Further, the passing of the money order, as alleged, constituted a felony of the third degree since the money order was a sight order for the payment of money. Section 32.21(d). Appellant’s contention is overruled.

The judgment is affirmed.-


author: DOUGLAS, Judge. ~

text:
    Arnold Richard DARBY, Appellant, v. The STATE of Texas, Appellee.
    No. 53032.
    Court of Criminal Appeals of Texas.
    Dec. 8, 1976.
    Rehearing Denied Jan. 5, 1977.
    George Michael Jamail, Beaumont, for appellant.
    Tom Hanna, Dist. Atty. and Paul E. Ña-man, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge. ~

Appellant was convicted by a jury for aggravated robbery. The jury found that appellant had been twice previously convicted of felonies and the coürt assessed appellant’s punishment at life pursuant to V.T.C.A., Penal Code, Section 12.42(d).

The only contention raised in this appeal is that the trial court erred in failing to quash the jury panel. In his argument under this ground of error appellant complains that during the course of the State’s voir dire examination of the jury panel, the prosecuting attorney fully and elaborately discussed the law of insanity as a defense to a criminal act. Appellant contends that, because he had not filed a notice of his intention to offer evidence as to insanity as ; a defense, the prosecutor’s discussion of ■ the same during voir dire examination of the jury panel unduly prejudiced the panel.

The transcription of the court reporter’s notes consists only of excerpts from the void dire examination of the jury panel. The motion to quash the panel was overruled.

Even if there is no notice of an intention to rely on insanity as a defense found in the record under Article 46.03, Section 2(a), V.A.C.C.P., a trial court may still permit the admission of such evidence under Article 46.03, Section 2(b), V.A.C.C.P. This apparently happened in the instant case. Appellant requested, and the court gave, a charge on the law of insanity as a defense. We find no error in the prosecutor’s anticipating appellant’s defense and discussing same with the prospective jurors in order to challenge individual members for cause or in order to exercise his peremptory challenges.

No error is shown; the judgment is affirmed.

      . Article 46.03, Section 2, V.A.C.C.P., provides:
      “Sec. 2. (a) A defendant planning to offer evidence of the insanity defense shall file a notice to his intention to offer such evidence with the court and the prosecuting attorney:
      (1) at least 10 days prior to the date the case is set for trial; or
      (2) if the court sets a pretrial hearing before the 10-day period, the defendant shall give notice at the hearing; or
      (3)if the defendant raises the issue of his incompetency to stand trial before the 10-day period, he shall at the same time file notice of his intention to offer evidence of the insanity defense.
      (b) Unless notice is timely filed pursuant to Subsection (a) of this section, evidence on the insanity defense is not admissible unless the court finds that good cause exists for failure to . give notice.”

      . The pro se motion to abate so that a complete statement of facts can be prepared is denied.


author: DALLY, Commissioner. DOUGLAS, Judge

text:
    Blanchard Lee SAVANT, Appellant, v. The STATE of Texas, Appellee.
    No. 52121.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1976.
    Rehearing Denied Jan. 12, 1977.
    See also, 535 F.2d 190.
    Jimmy Phillips, Jr., Angleton, for appellant.
    Thomas L. Hanna, Dist. Atty. and Jimmie R. Stanton, Asst. Dist. Atty., Beaumont, 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 assault with a prohibited weapon (Art. 1151, V.A.P.C., 1925); the punishment is imprisonment for 5 years. The imposition of sentence was suspended and the appellant was granted probation.

The appellant complains of the court’s charge; he asserts that it permitted the jury to convict him on a theory not supported by the evidence. We agree that the court’s charge was erroneous in this respect and under our holdings in Oliver v. State, 160 Tex.Cr.R. 222, 268 S.W.2d 467 (1954), and McCuin v. State, 505 S.W.2d 827 (Tex.Cr.App.1974), the judgment must be reversed.

The indictment charged as follows:

“. . . that BLANCHARD LEE SAVANT and JIMMY LEE BACON on or about the 6th day of October, One Thousand Nine Hundred and Seventy-three, and anterior to the presentment of this indictment in the County of Jefferson and State of Texas, did while then and there unlawfully carrying on and about their person a pistol, with the said pistol, did then and there unlawfully and willfully commit an assault in and upon Robert H. Broussard with said pistol, and did then and there with said pistol so unlawfully carried, shoot the said Robert H. Broussard, . . ”

The appellant was tried separately in this case. The evidence clearly shows that Jimmy Lee Bacon unlawfully carried a pistol and shot Broussard. There is no evidence that the appellant unlawfully carried a pistol or that he shot Broussard. There is evidence that the appellant attacked and struck Broussard with the butt of a shotgun just before Bacon shot Broussard. This evidence would have been sufficient to support a jury finding that the appellant was guilty as a principal, but that is the only theory under which the evidence would permit a jury finding of guilty.

The court charged the jury as follows:

“Now, if you find from the evidence beyond a reasonable doubt that in Jefferson County, Texas, on or about October 6, 1973, the defendant, Blanchard Lee Savant, did unlawfully and willfully make an assault in and upon Robert H. Brous-sard by shooting him with a pistol, and, if you further find from the evidence beyond a reasonable doubt that said assault, if any there was, was made while the said pistol, if any, was then and there being unlawfully carried by the defendant on or about his person, then you will find the defendant guilty of an assault with a prohibited weapon. If you do not so find, or if you have a reasonable doubt thereof, you will find the defendant not guilty of the charge herein.
“Our law provides that all persons are principles if they act together in the commission of an offense. When an offense is actually committed by one or more persons, but others, knowing the unlawful intent, aid by acts or encourage by words those actually engaged in the commission of the offense, such persons so aiding or encouraging are principles, and should be convicted as such. Mere presence alone will not constitute one a principle.
“Now therefore if you believe and find from the evidence beyond a reasonable doubt, that the defendant, either acting alone or together with some other person or persons as a principle, as that term has been defined, committed the offense alleged in the indictment, you will find the defendant guilty. Unless you so find or if you have a reasonable doubt thereof, you will acquit the defendant.”

The appellant made a timely objection pointing out that the charge would permit the defendant’s conviction on a theory not supported by the evidence; that is, that he assaulted Robert H. Broussard with a pistol which he, the appellant, was carrying unlawfully. Cf. Dowden v. State, 537 S.W.2d 5 (footnote 11) (Tex.Cr.App.1976). The attempt to apply the law of principals to the facts was erroneous because it permitted the jury to find the appellant guilty if he alone committed the offense, a theory unsupported by the evidence.

A reading of the opinions in Oliver v. State, supra, and McCuin v. State, supra, as well as an inspection of the records in those cases on file in this Court show them to be indistinguishable from this case.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, Judge

(dissenting).

The majority reverses this conviction on the court’s charge which under the facts of this case could not have misled the jury or harmed Savant. Article 36.19, V.A.C.C.P., provides that a conviction should not be reversed for an error in the court’s charge unless it was calculated to injure the rights of a defendant or unless it appears from the record that the defendant has not had a fair and impartial trial.

The court instructed the jury that it could convict Savant if he acted with Bacon who was unlawfully carrying the pistol in committing an assault on Broussard or if Savant was acting alone. The evidence shows that Bacon had the pistol and Savant had a shotgun during the attack. To see if there was error calculated to harm Savant, the evidence will be discussed.

Robert H. Broussard, the injured party, and Craig Haynes were eating in the Pitt Grill in Beaumont. People were waiting to be seated. Two young ladies entered a booth. A group of four men, including Savant and Bacon, wanted to sit there. Bacon told the young ladies to leave. Brous-sard told the group that he and Haynes were ready to leave and they could have their table. Bacon cursed and called Brous-sard a “smart aleck.” Bacon and Savant then went to the rest room. While Brous-sard was at the cash register, Bacon and Savant came out of the rest room and went outside. Broussard asked Haynes to wait for him. When they got outside, Bacon was standing at the front door with a pistol in his hand.

Bacon called Broussard a fat bastard and told him to put his hands in the air and to come around the edge of the building. Broussard obeyed. Savant was standing at the back of a car with a shotgun in his hand and hit at Broussard. He ducked, but the butt of the gun hit him in the elbow cutting his arm and the cut required stitches. Savant hit at him again and Broussard tried to get back, into the building but before he could do so Bacon shot him in the leg with a pistol. Broussard then made it back into the grill where everyone was on the floor.

Craig Haynes testified to substantially' the same as did Broussard. In addition to the above testimony Haynes related that it took a big man to run two women out of a booth. He saw Savant take a shotgun out of the trunk of a car. He also saw the blow to Broussard’s shoulder or left elbow. When the officers arrived, the assailants were gone.

James Singletary of the Beaumont Police Department testified that he went to the Pitt Grill on Interstate Highway 10 and saw Broussard who was bleeding from the leg and elbow. He got a description of the assailants and the car that they were in.

Thomas Scofield of the Beaumont Police Department received a report of the incident and drove toward Savant’s house. He pulled into a side street and just as he started to back out, a car (driven by Savant) came down the street at a high rate of speed and almost hit the patrol car. He pursued in the patrol car with the red light and siren on, but Savant did not stop and drove into the driveway at his home at a high rate of speed. The four occupants of the car got out and went into the house. Scofield waited for other officers before going inside.

Savant testified that at the time in question he managed the Lighthouse Club in Nederland and that he had met Bacon at the club that night. After closing that night, they went to the Pitt Grill. They wanted a large booth. Bacon told the girls to move to a smaller booth and then there were some words between them. Savant testified that he went outside to his car “to get it straight, between me and him . to find out what his problem was. * * * I was going to get a baseball bat out of the trunk. . . . So we would be equal.” He was going to use it on Haynes. He related that he opened the trunk and the bat was not there. He then started to go back inside and he looked through the window and saw “the big guy had Bacon by the coat shaking him.” Bacon then came running out the front door and said that he was going “. . .to learn that son-of-a-bitch a lesson.”

Savant testified that he told Bacon not to shoot Broussard but to put a knot on his head. Savant then gave the rest of his story that the jury was not bound to and did not believe. He testified that he got the shotgun to prevent Bacon from shooting Broussard. He related that Bacon was holding the pistol on Broussard when he, Savant, hit him with the shotgun.

He related that they left and took the pistol and shotgun to a friend’s house and then went to his house where they were arrested. On cross-examination, he related that just before he hit Broussard with the shotgun, “I told him ‘If you want to be a hero, you got to see how far you got to go to be a hero,’ ” and that Broussard was acting like a hero because he was taking up for those two young ladies for no reason. He related that Broussard had done nothing to him. He testified, “It wasn’t necessarily what he did to me; it was what he had done to Bacon,” and that was “evidently enough to Mr. Bacon to where Mr. Bacon wanted to shoot him.” He again related that he hit Broussard to keep Broussard out of trouble. He related two or three times that Bacon shot Broussard.

With all of the above testimony there is no way that the jury could have been misled by the charge because there is no indication or hint that Savant possessed the pistol or shot Broussard with it. The charge authorized a conviction for Savant’s acting with Bacon when Bacon shot Broussard with a pistol.

In Johnson v. State, 67 Tex.Cr.R. 441, 149 S.W. 165 (1912), this Court wrote that criticism of the court’s charge on principals which did not require both to be present at the time of the commission of the offense was perhaps well founded; “However, as the testimony discloses beyond doubt that they were both present, this would not alone present reversible error, as this is an undisputed fact.”

In Johns v. State, 129 Tex.Cr.R. 206, 86 S.W.2d 235 (1935), a finding that defendant by his own acts stole the cattle involved was made a condition of finding him guilty. The Court held that a part of the charge that all persons acting together in the commission of an offense were principals and could be prosecuted as such was not prejudicial error. This Court wrote:

“. . . Under the circumstances, to order a reversal because of the charge mentioned would do violence to the statutory command inhibiting a reversal of the conviction on account of a charge not calculated to injure the rights of the accused. Article 666, C.C.P., [now Article 36.19, V.A.C.C.P.”

In Durham v. State, 112 Tex.Cr.R. 395, 16 S.W.2d 1092 (1923), the court instructed the jury on the law of principals. The Court noted that the evidence did not raise the issue and held that the giving of the charge was not reversible error.

In the above cases, theories submitted even though not raised by the evidence did not require automatic reversals. For other cases see Texas Digest, Criminal Law,

We should follow the mandate of Article 36.19, V.A.C.C.P., and not reverse unless errors in the charge are calculated to injure the rights of an accused. There was no such error in the present case.

The judgment should be affirmed.